In terms of section 283 of the Constitution:

“An Act of Parliament must provide for the following in accordance with the prevailing culture, customs, traditions and practices of the communities concerned -

(a) The appointment, suspension, succession and removal of traditional leaders;

(b) The creation and resuscitation of chieftainships; and

(c) The resolution of disputes concerning the appointment, suspension, succession and removal of traditional leaders; but –

(i) The appointment, removal and suspension of chiefs must be done by the President on the recommendation of the provincial assembly of chiefs and through the National Council of Chiefs and the Minister responsible for traditional leaders in accordance with traditional practices and traditions of the communities concerned.

(ii) Disputes concerning the appointment, suspension and removal of traditional leaders must be resolved by the President on the recommendation of the provincial assembly of chiefs through the Minister responsible for traditional leaders.

(iii)…,.

(iv)….,..”

The current Act of Parliament providing for matters referred to in section 283 of the Constitution is the Traditional Leaders Act [Chapter 29:17]….,.

What is…, not in dispute is that chieftainship wrangles now fall, by constitutional provision, to be resolved by the President on the recommendations of the Provincial Assembly of Chiefs. By clear and unambiguous language the law giver has bestowed that responsibility on the President….,.

In Gambakwe and Others v Chimene and Others HH465-15, UCHENA J…, considered the effects of section 283(c)(ii) of the Constitution and concluded that it imposes a duty on the President to resolve disputes concerning the appointment of chiefs whether they occur before or after the appointment, to the exclusion of the courts. The learned judge asked rhetorically;

“Otherwise, how must the President resolve such disputes if the courts can also resolve them? The use of the word 'must' means he is obliged to resolve every such dispute.”

The learned judge went on to conclude that since a Provincial Assembly now has the mandate to make recommendations to the President on how a chief should be nominated, it means that an aggrieved person has alternative remedies to approach the Provincial Assembly of Chiefs for it to make recommendations to the President over and above the remedy of submitting a grievance to the President.

It is trite that, even though this court has inherent jurisdiction to decide any matter, traditionally, it will not invoke such inherent jurisdiction where a party has other domestic remedies through which it can obtain recourse.

A few weeks after UCHENA J…, had pronounced himself in Gambakwe and Others v Chimene and Others HH465-15, TSANGA J was confronted with the same question of the effect of section 283 of the Constitution in Munodawafa and Others v District Administrator, Masvingo HH571-15. She followed the reasoning in the earlier matter but also added the crucial point, which I totally agree with, that this court will always be a forum of jurisdiction and for its jurisdiction to be completely ousted would require a specific provision to that effect.

What is clear though is that section 283 of the Constitution has created domestic or internal remedies for a party who is aggrieved by a process of selecting a chief. Such person is at liberty to approach the Provincial Assembly, which is reposed with the authority to make recommendations to the President, or to submit a grievance to the President for resolution. To the extent that such remedies are available, this court will not readily exercise jurisdiction.

Section 283 of the Constitution…, provides as follows;

“283 (c) The resolution of disputes concerning the appointment, suspension, succession and removal of traditional leaders;…,.

(i)….,.

(ii) Disputes concerning the appointment, suspension and removal of traditional leaders must be resolved by the President on the recommendation of the Provincial Assembly of Chiefs through the Minister responsible for traditional leaders;

(iii)…,.

(iv)….,.”

Counsel for the first respondent submitted that the provisions of section 283(c)(ii) of the Constitution has the effect of ousting the court's jurisdiction to determine issues concerning disputes over the appointment of chiefs, except the review of the President's determination of such disputes.

Counsel for the applicants submitted that the court's jurisdiction was not ousted by section 283(c)(ii) of the Constitution.

While the court's guard, jealously, against the ousting of their jurisdiction, it is important for the courts to identify the intention of the legislature and act accordingly. In this case, from the use of the word “must” in section 283(c)(ii) of the Constitution I am persuaded that the legislature, in drafting the Constitution, intended to give that responsibility to the President.

My view is strengthened by the provisions of section 342(1) of the Constitution which provides as follows;

“342 (1) A power, jurisdiction or right conferred by this Constitution may be exercised, and a duty imposed by this Constitution must be performed whenever it is appropriate to do so.”….,.

As already said, the requirement in section 283(c)(ii) of the Constitution, that disputes concerning the appointment of chiefs “must be resolved by the President on the recommendation of the Provincial Assembly of Chiefs through the Minister responsible for traditional leaders;” imposes a duty on the President and is indicative of the legislature's intention that only the President should resolve such disputes.

Otherwise, how must the President resolve such disputes if the courts can also resolve them? The use of the word “must” means he is obliged to resolve every such dispute.

Counsel for the applicants further submitted that the provisions of section 283(c)(ii) of the Constitution do not apply to disputes which arise before the appointment of a Chief or Acting Chief, but only applies to disputes which arise after a Chief has been appointed.

Counsel for the second to fourth respondent's submitted that the word “concerning” which precedes the disputes to be resolved which includes appointment of chiefs, means “about” and “involving”. This, she argued, means the disputes to be resolved include those which arise before the appointment of a Chief or Acting Chief.

I agree.

The use of the word “concerning”, which means something about or involving the appointment of chiefs, includes disputes which arise before a chief is appointed as long as they have something to do with a chief's appointment. The Cambridge Advanced Learners' Dictionary supports the meaning given by counsel for the second to fourth respondents.

I therefore agree with counsel for the first respondent and counsel for the second to fourth respondents that the applicants have come to the wrong forum.

As regards to disputes, section 283(c)(ii) of the Constitution makes it clear that the President must deal with such disputes and that the recommendation must come to him through the Provincial Assembly of Chiefs and the Minister responsible for chiefs.

In other words, the Provincial Assembly of Chiefs actively plays a role in the resolution of the dispute in accordance with the traditional practices and traditions of the communities concerned. It is their efforts or recommendations which are then communicated to the Minister, who, in turn, communicates with the President for action….,.

Among the duties of the National and Provincial Council of Chiefs, as stipulated in section 286(1)(f) of the new Constitution is “to facilitate the settlement of disputes between and concerning traditional leaders”. This is clearly a dispute which falls within their mandate in terms of their role in facilitating resolution since it concerns a traditional leader….,.

As provided for by section 171 of the Constitution, the High Court has inherent jurisdiction to hear all civil and criminal matters throughout Zimbabwe. The High court is therefore always a forum of jurisdiction that can be selected by the parties and the court will exercise its jurisdiction where it is clear that it should. Critically, however, where domestic remedies for resolving the issue are provided, as in the case before me, the court will want to know why it should exercise its inherent jurisdiction if such remedies have not been exhausted.

For the court's jurisdiction to be completely ousted would require a specific provision to that effect.

This Court has ruled that the Labour Court, as a court of equity, is the only court vested with jurisdiction to perform this task....,. 

This Court has, in the case of Madhatter Mining Company v Marvellous Tapfuma SC299-12 put the matter beyond doubt when it cited section 2A of the Labour Court Act and emphasized its purpose, which is to advance social justice and democracy in the workplace. It aims to do this by, among other things, “securing the just, effective and expeditious resolution of disputes and unfair labour practice.”

The court, in Madhatter Mining Company v Marvellous Tapfuma SC299-12, then went on to state as follows:

“The principles of equity and social justice as well as the imperative for the Labour Court to secure the just and effective resolution of labour disputes, are all called into question when it comes to determining the basis and formula for computing a debt (e.g. damages) suffered in Zimbabwe dollars but claimed in foreign currency. This is particularly so where such damages, being owed to an employee, can no longer be paid in Zimbabwe currency, realistically, or in a way that gives due value to the employee. The undeniable fact is that a debt is not wiped out by the mere fact that there has been a change to the realisable currency. Equity would demand that a formula be found to give effect to the employee's entitlement to payment of, and the employer's obligation to pay, the debt in question.”

It was also common cause that a determination by the Labour Court was necessary before the Supreme Court could be seized with this matter. Consequently, it was agreed between the parties that the matter be referred to the Labour Court for determination, and that, in the event of either party not being satisfied with the determination of the Labour Court, the aggrieved party appeals to the Supreme Court.

The Court agreed with the common stance of the parties.

The Court directed the parties to submit a draft order by consent for approval by the Court. The parties were not able to agree on the details of the order by consent. They addressed the following letter to the Registrar of this Court:

“FLEXIMAIL (PVT) LTD v GIFT BOB SAMANYAU AND 38 OTHERS: CASE NO. SC-135/11

We respectfully request that you place this memorandum before His Lordship The Chief Justice.

We refer to the above Supreme Court appeal in respect of the above matter which was heard on the 11^th of September 2013. Pursuant to the Court's direction that the parties draft a consent order and revert to the Court by the 13^th of September, we advise that there are areas of agreement and areas of disagreement.

Areas of agreement

The parties agree that the matter be referred to the Labour Court for quantification.

Areas of disagreement

The parties disagree on the following three issues:

1. Whether or not the appeal was allowed.

2. Whether or not the cross-appeal was allowed.

3. Whether or not the Labour Court was directed to quantify the damages in United States dollars or whether this issue remains open.

It is the appellant's view that the appeal was allowed as the Court indicated that the judgment of the High Court was set aside. However, the question of whether the respondents are entitled to damages in United States dollars remained to be decided by the Labour Court during the quantification proceedings. Accordingly, the cross appeal cannot have been granted.

We respectfully request the Court's direction as to how to proceed.”

The Court has considered the submissions by counsel and the above letter addressed to the Registrar of this Court seeking directions. The Court has come to the following conclusion.

1. The judgment of the High Court in this matter is hereby set aside for lack of jurisdiction. To that extent the appeal succeeds. The matter should have been determined by the Labour Court.

2. There being no valid appeal to this Court from a court of competent jurisdiction, the cross appeal falls away. The matter is hereby remitted to the Labour Court for determination.

3. For the guidance of the Labour Court, the Labour Court is directed to determine the following issues –

(a) What is the effect of the change in currency effected in February 2009 on debts occurring before the effective date?

(b) Does the Labour Court have the power to order payment in the operational currency (the United States dollar) of debts incurred under the Zimbabwe dollar currency which, though not demonetised, is no longer in use?

(c) Has the principle of currency nominalism any application in the circumstances of this case?

(d) The method of calculating the quantum of the debt in current realisable currency if the conclusion of the above issues is in favour of payment in United States dollars.

Considerations of Equity

In terms of section 2A(1) of the Labour Act [Chapter 28:01], the purpose of the Labour Act [Chapter 28:01] is “to advance social justice and democracy in the workplace” by, inter alia, “securing the just, effective and expeditious resolution of disputes and unfair labour practices” (paragraph (f)). Section 2A(2) of the Labour Act [Chapter 28:01] requires that the Act be construed in such manner as best ensures the attainment of the purpose referred to in section 2A(1), while section 2A(3) stipulates that the Act shall prevail over any other enactment inconsistent with it.

Relying upon these provisions, counsel for the respondents submits that the arbitrator and the Labour Court could not ignore considerations of equity in arriving at their respective decisions. Thus, their respective orders for payment of the retrenchment package in convertible currency were not designed to substitute the retrenchment agreement but to make it more workable.

Counsel for the appellant counters that section 89(2) of the Labour Act [Chapter 28:01], which prescribes the powers of the Labour Court, does not expressly include the power to dispense equity. Additionally, he points to section 98(2) of the Labour Act [Chapter 28:01] which provides that the Arbitration Act [Chapter 7:15] shall apply to any dispute referred to compulsory arbitration. Article 28 of the Model Law scheduled to the Arbitration Act [Chapter 7:15] delineates the rules applicable to the substance of a dispute submitted to arbitration as follows:

“(1) The arbitral tribunal shall decide the dispute in accordance with such rules of law as are chosen by the parties as applicable to the substance of the dispute. Any designation of the law or legal system of a given State shall be construed, unless otherwise expressed, as directly referring to the substantive law of that State and not to its conflict of laws rules.

(2) Failing any designation by the parties, the arbitral tribunal shall apply the law determined by the conflict of laws rules which it considers applicable.

(3) The arbitral tribunal shall decide ex aequo et bono or as amiable compositeur only if the parties have expressly authorised it to do so.

(4) In all cases, the arbitral tribunal shall decide in accordance with the terms of anycontract and shall take into account any usages of any trade applicable to the transaction.”

It would appear from section 98(2) of the Labour Act [Chapter 28:01], as read with Article 28 of the Model Law, that an arbitrator to whom a dispute is referred under the Labour Act [Chapter 28:01] is confined to the applicable rules of law and cannot invoke considerations of equity, unless expressly authorized to do so by the parties. If this is correct, the same limitation would apply to the Labour Court on appeal from an arbitrator because, in terms of section 98(10) of the Labour Act [Chapter 28:01], it may only entertain any such appeal on a question of law.

Conversely, if it is accepted that the Labour Court enjoys equitable jurisdiction by virtue of subsection(s) (1) and (2) of section 2A of the Labour Act [Chapter 28:01], then it is arguable that even an arbitrator may dispense equity in labour matters. This is because, as is declared in section 98(9) of the Labour Act [Chapter 28:01], inhearing and determining any dispute, an arbitrator shall have the same powers as the Labour Court. This position would obtain notwithstanding Article 28 of the Model Law, by reason of subs(s) (3) of section 2A of the Labour Act [Chapter 28:01], which accords primacy to the provisions of the Labour Act [Chapter 28:01] over any other enactment inconsistent with it.

In three previous decisions of this Court, Malimanjani v Central Africa Building Society SC47-07 and Nzuma & Others v Hunyani Paper and Packaging (Pvt) Ltd Civil Appeal No. SC137/11, and Fleximail (Pvt) Ltd v Samanyau & Others SC21-14, it was accepted, obiter, and without elaboration, that the Labour Court is endowed with equitable jurisdiction. This position was explicitly reaffirmed in Madhatter Mining Company v Tapfuma SC51-14, in reliance upon the specific wording of section 2A(1)(f) of the Labour Act [Chapter 28:01]. It was held, per GWAUNZA JA…, that:

“The principles of equity and social justice, as well as the imperative for the Labour Court to secure the just and effective resolution of labour disputes, are all called into question when it comes to determining the basis and formula for computing a debt (e.g. damages) suffered in Zimbabwe dollars but claimed in foreign currency. This is particularly so where such damages, being owed to an employee, can no longer be paid in Zimbabwe currency realistically or in a way that gives due value to the employee. The undeniable fact is that a debt is not wiped out by the mere fact that there has been a change to the realisable currency. Equity would demand that a formula be found to give effect to the employee's entitlement to payment of, and the employer's obligation to pay, the debt in question.”

I respectfully associate myself with these sentiments - but with two significant caveats.

The first, obviously enough, concerns the need to distinguish the specific facts of any given case. On the facts in Madhatter Mining Company v Tapfuma SC51-14, it became necessary to apply equity to compute a debt owed to an employee, which debt had not been satisfied and was still due, in a currency that would be effectively realisable. This scenario must be distinguished from a situation where the debt in question has already been paid in a currency that is realizable at the time of payment.

The second caveat relates to the application of equity in those instances where it might conflict with rules of law. In this context, the need for predictability must be seen as paramount. See BENNION: Statutory Interpretation (1984)…,. As was aptly captured by LORD DIPLOCK in Black-Clawson International Ltd v Papierwerke Waldhof-Aschaffenberg AG [1975] 1 All ER 810…,:

“The acceptance of the rule of law as a constitutional principle requires that a citizen, before committing himself to any course of action, should be able to know in advance what are the legal consequences that will flow from it. Where those consequences are regulated by a statute the source of that knowledge is what the statute says. In construing it, the court must give effect to what the words of the statute would be reasonably understood to mean by those whose conduct it regulates. That any or all of the individual members of the two Houses of Parliament that passed it may have thought the words bore a different meaning cannot affect the matter. Parliament, under our constitution, is sovereign only in respect of what it expresses by the words used in the legislation it has passed.”

Furthermore, as is lucidly expounded by MEGAW LJ in Ulster-Swift Ltd v Taunton Meat Haulage Ltd (1977) 3 All ER 641…, the danger of allowing judges the latitude of freely interpreting statutes according to their own view of what is just and equitable:

“…, is not, indeed, that the judges become legislators, but that they may become legislators with widely differing, and perhaps unduly legalistic, views of the policy which is, or ought to be, behind the legislation. Hence the law, whatever it may gain in other respects, may in some cases suffer a loss in what has always been regarded as one of the essential features of law – uniformity; or at least predictability. Sometimes, in relation to the judicial view of 'the presumed purpose of the legislation', it may be a case of quot judices, tot sententiae: whereas in relation to what the legislation has actually said, it is unlikely that judicial opinion would vary so widely.”

Reverting to the Labour Act [Chapter 28:01], while it might be accepted that the Labour Court, as well as tribunals arbitrating labour disputes, are duly empowered by virtue of section 2A(1) of the Labour Act [Chapter 28:01] to dispense equity, they clearly cannot in so doing disregard existing rules of law. In particular, equity cannot be invoked and applied so as to override or negate the provisions and requirements of any legislation enacted by Parliament or by an executive authority duly delegated to frame subsidiary legislation. The position might be different if such legislation is shown to be inconsistent with any substantive provision of the Act, in which event that provision would prevail in conformity with section 2A(3) of the Labour Act [Chapter 28:01].

In seeking to find middle ground, the court a quo granted orders which had not been sought by either party. It granted the first and fourth respondents a further grace period and a referral to arbitration. The first and fourth respondents had not sought such orders.

Such orders cannot be sustained at law.

They seem to have been motivated by equity and sentiments of justice rather than the law and the facts, as demonstrated by the court a quo's narration of the exploits of the legendry “judge jackal” in setting free a man who was about to be eaten by a leopard he had rescued from a trap….,,

Judicial discretion should at all times remain guided by the dictates of the law.

The court states with little, if any, emphasis that process which, through the over-reaching conduct of one party, visits the other party with substantial prejudice as is the case in casu, cannot be allowed to stand let alone be enforced.

Equity and fairness, which are the hallmark of a court's work, demand that the process be set aside in the interests of justice.

In Guwa & Anor v Willoughby's Investments (Pvt) Ltd 2009 (1) ZLR…, GARWE JA said:

“The High Court, on the other hand, has jurisdiction to hear all matters except where limitations are imposed by the law. In other words whilst the Supreme Court may do nothing that the law does not permit, the High Court may do anything that the law does not forbid.”

In this application, the applicants seek an order declaring the Notice of Appeal filed by the respondent with the Registrar of the Supreme Court to be null and void....,.

There can be no doubt that the Notice of Appeal is null and void....,.

The interesting point of law that now arises is whether, in these circumstances, a Judge of this Court has the jurisdiction to declare the Notice of Appeal null and void….,.

During submissions, counsel for the applicants, indicated that the Registrar of Deeds had intimated that unless an order to the contrary was received, he would continue to regard the Notice of Appeal as valid. For this reason, the applicants have made this chamber application seeking a declaratur that the Notice of Appeal is null and void.

Whilst the applicants may well be entitled to such a declaration, I am of the view that the Supreme Court does not have the jurisdiction to make such a declaration in the first instance.

In terms of section 80 of the Constitution of Zimbabwe both the Supreme Court and High Court shall have jurisdiction and powers as may be conferred upon them by or in terms of the Constitution or any Act of Parliament.

The Supreme Court Act [Chapter 7:13] has, in sections 9 and 21, provided that the Supreme Court shall have jurisdiction to hear and determine an appeal in any criminal or civil case from the judgment of any court or tribunal and that unless provision to the contrary is made in any other enactment, the Supreme Court shall hear and determine and exercise powers in respect of an appeal in accordance with the Act.

It is clear from these provisions that the Supreme Court is a creature of statute and that it derives its jurisdiction specifically from the Supreme Court Act and other legislative provisions. In other words, although it is the highest court in the land, its powers are regulated strictly by statute. It is not a Court of first instance. It has no original jurisdiction but only appellate since it was created by statute purely as a Court of Appeal.

Nowhere in the Supreme Court Act nor in the Rules of the Court is the Supreme Court given jurisdiction to entertain, in the first instance, an application for a declaratur….,.

The High Court, however, is different from the Supreme Court in that it has, in terms of the High Court Act [Chapter 7:06] full original civil and criminal jurisdiction over all persons and over all matters within Zimbabwe subject only to limitations placed either by the Act itself or by any other law.

In terms of section 14 of the High Court Act [Chapter 7:06], the High Court may inquire into and determine any existing, future or contingent right or obligation, including the granting of a declaratur.

In terms of jurisdiction, the distinction between the Supreme Court and the High Court may be summarized as follows;

Except where specifically empowered, the Supreme Court has no jurisdiction to hear or determine any matter and may only exercise powers in respect of an appeal in terms of the provisions of the Supreme Court Act [Chapter 7:13] and Rules of the Court. The High Court, on the other hand, has the jurisdiction to hear all matters except where limitations are imposed by law. In other words, whilst the Supreme Court may do nothing that the law does not permit, the High Court may do anything that the law does not forbid.

The necessary corollary to the above is that a Judge of the Supreme Court has no jurisdiction, in the first instance, to hear and determine an application for a declaration of nullity in respect of an appeal that is not before it. In respect of matters before it, the Supreme Court does have inherent jurisdiction to make orders.

Jurisdiction is the power or competence of a court to adjudicate on, determine, and dispose of a matter.

Section 176 of the Constitution provides for the inherent power of the Constitutional Court to protect and regulate its own process. It provides:

“176 Inherent powers of Constitutional Court, Supreme Court and High Court

The Constitutional Court, the Supreme Court and the High Court have inherent power to protect and regulate their own process and to develop the common law or the customary law, taking into account the interests of justice and the provisions of this Constitution.”

The issue of novation raised by the appellant, in a bid to evade liability, cannot stand because the issue was never raised in the court a quo.

The Supreme Court, as an Appellate Court, save in exceptional circumstances, only deals with matters that have been dealt with by the court a quo. Its appellate powers do not stretch to dealing with matters as a court of first instance.

Section 33(2) of the Police Act [Chapter 11:10] gives the right to appeal to the High Court only to members convicted of a disciplinary offence by a Board of officers, not by a single trial officer. It is thus clear that an appeal from a single trial officer only lies to the Commissioner General of Police and not to the High Court….,.

The law does not grant jurisdiction to the High Court to hear appeals from decisions of the single trial officers. Section 34(7) of the Police Act [Chapter 11:10] only provides for the appellate jurisdiction of the Commissioner General from decisions of single trial officers.

The applicant argues that, because the right of appeal to the High Court is not specifically prohibited, in circumstances where section 70(5) of the Constitution provides that any person who has been convicted of an offence has the right to appeal to a higher court, this means that police members convicted by single trial officers are entitled to appeal to the High Court in terms of section 70(5). For this proposition, he relied on some decisions of this court which found the Police Act to be inconsistent with section 70(5) of the Constitution.

See Sadengu v Board President & Anor HH712-15….,.

Sadengu v Board President & Anor HH712-15 is not helpful to the applicant's cause as section 70(5) of the Constitution merely creates a right but does not prescribe how that right is to be accessed. Section 171 of the Constitution does so, by providing that an Act of Parliament will delineate the appellate jurisdiction of the High Court. As a consequence, the Legislature, in enacting the Police Act could have prescribed the appellate jurisdiction of the High Court for police disciplinary matters emanating from single trial officers, but deliberately refrained from doing so. While the High Court Act does prescribe for the appellate jurisdiction of the court, in section 30 and section 34, it goes on to limit such jurisdiction to the same extent as section 171(1)(d) of the Constitution: that such appellate jurisdiction will only be exercised as provided for by an enactment or by the High Court Act itself.

Therefore, the provisions with regard to the appellate jurisdiction of the High Court vis-à-vis trials from single trial officers must be read in pyramidal fashion, starting from the wide base: section 70, as limited by section 171 of the Constitution, and, further limited by section 30 and section 34 of the High Court Act, and, finally, section 34(7) of the Police Act….,.

While the right to appeal exists in general terms, as provided for in the Constitution, the complainant in this case is prevented from enjoying this right. Such interference is prescribed by law, viz: section 171 of the Constitution, section 30 and section 34 of the High Court Act and section 34(7) of the Police Act.

Such interference is compatible with constitutional and even international treaty obligations since the right is not absolute but is subject to any limitations prescribed by law.

While this court has inherent jurisdiction and may do anything which the law does not forbid, the general fundamental principle of inherent jurisdiction is subject to particular derogation: HERBSTEIN and Van WINSEN, The Civil Practice of the Superior Courts in South Africa, 3^rd ed, Juta & Co Ltd…,.

This court cannot exercise jurisdiction where such jurisdiction is specifically ousted by statute.

Whether or not the application is properly before this court

It was contended, on behalf of the first respondent, that the applicant ought to have applied for the judgment against it to be rescinded in the court a quo as a default judgment.

The basis of this contention is a statement by the applicant in its founding affidavit in the application for condonation contending that the effect of the striking out of the opposing affidavit in the application for registration of the award was that the application was granted unopposed. To this extent, the contention proceeds, it was a default judgment yet the order of the court a quo did not reflect this state of affairs and gives the impression that the order was granted on the merits.

It is common cause that the court a quo upheld the point in limine raised by the first respondent that the deponent to the applicant's affidavit was incompetent to swear positively to the contents of the applicant's affidavits. Having done so, it dismissed the application by the applicant and granted the application by the first respondent. It is therefore not in dispute that the court a quo did not render a judgment in default of appearance or of filing relevant papers in the two matters but dismissed the one and granted the other after hearing arguments from the parties on the basis of papers filed of record. The court considered that the applicant was properly before it and accepted argument from it on the point in limine. It follows, therefore, that the judgment that it rendered thereafter on that point cannot, by any imagination, be described as a default judgment as envisioned by the High Court Rules. The applicant was clearly before the court and did not default in the filing of any papers. It was simply not persuasive in its argument before the court a quo on the point in limine. The ensuing judgment was made in its presence, on the basis of its papers but against it.

It appears to me that having struck off the applicant's papers, the court a quo ought to have either dealt with the matter on the merits, or refer it to the un-opposed roll for a “proper” default judgment to be entered against the applicant. It did neither.

As matters stand, the only way that the applicant could have had the correctness of the judgment against it tested was by way of an appeal. It could not conceivably have done so by way of an application for rescission of the judgment as argued for and on behalf of the first respondent.

Notwithstanding that the applicant itself may have incorrectly referred to the judgment of the court a quo as a default judgment, I find that it was not a default judgment capable of correction by way of rescission. I further find that the applicant, once having made an application to this Court for condonation of late filing of its appeal and an extension of time within which to note the appeal, is properly before this Court in this application. The jurisdiction of this Court in this matter is not inherent but is ancillary to the application for condonation that this Court is seized with.

It is the settled position at law that once this court is seized with a matter, it is then imbued with inherent jurisdiction to control and protect its processes and this includes jurisdiction to stay the judgment appealed against. See Net One Cellular (Private) Limited v 56 Net One Employees & Anor SC40-05.

It is not in dispute that the High Court has jurisdiction to issue a declaratur, in its discretion, at the instance of any interested person, i e. to inquire into and to determine any existing, future, or contingent right or obligation.

It was submitted, correctly in my view, on behalf of the applicants, that the requirements of a declaratur are as follows:

(i) Firstly, that, the issue of a declaratur is not contingent upon there being a possibility of providing consequential relief. The applicants referred the court to the following cases as authority for this proposition;

Munn Publishing (Pvt) Ltd v ZBC 1994 (1) ZLR 337 (S).

(ii) The grant of declaratory relief is discretionary; United Watch & Diamond Co (Pty) Ltd & Ors v Disa Hotels Ltd & Anor.

(iii) In order to qualify for a declaratur, the applicant must be an interested person with a direct and substantial interest in the subject matter of the suit that could be prejudicially affected by the judgment of the court; the interest must relate to an existing, future, or contingent right; the court must not decide abstract, academic or hypothetical questions which are not related to the applicant's interest.

See also Milani & Anor v South African Medical and Dental Council & Anor 1990 (1) SA 889 (T)…,.

(iv) The existence of an actual dispute between persons interested is not a statutory requirement to an exercise of the court's discretion. See Anglo-Transvaal Collieries Ltd v SA Mutual Life Assurance Soc 1977 (3) SA 631 (T)…,.

(v) The availability of another remedy does not preclude does not render the declaratory order incompetent. See Ex Parte Nell 1963 (1) SA 754 (A)…,.; Gelcon Investments (Pvt) Ltd v Adair Properties (Pvt) Ltd 1969 (3) SA 142 (R)…,.

The applicants submitted that, at the next stage of the inquiry, it is incumbent upon the court to decide whether or not the case is a proper one for the exercise of its discretion in terms of section14 of the High Court Act.

What constitutes a proper case has been described as follows:

“…, despite the fact that no consequential relief is being claimed or perhaps could be claimed in the proceedings, yet, nevertheless, justice or convenience demands that a declaration be made, for instance, as to the existence of or as to the nature of a legal right claimed by the applicant or of a legal obligation said to be due by a respondent. I think that a proper case for a purely declaratory order is not made if the result is merely a decision on a matter which is really of mere academic interest to the applicant. I feel that some tangible and justifiable advantage in relation to the applicant's position with reference to an existing, future, or contingent legal right or obligation must appear to flow from the grant of the declaratory order sought.”

See Adbro Investment Co Ltd v Minister of the Interior & Ors 1961 (3) SA 283…,. See also Johnsen v Agricultural Finance Corporation 1995 (1) ZLR 65 (SC)…,.; Exp Chief Immigration Officer 1993 (1) ZLR 122 (S)…,.

The first respondent contended that;

(i) The grant of declaratory relief is discretionary and will not be used to usurp the function of another court and cited the case of Khupe v Officer in Charge, Law & Order Section, ZRP, Bulawayo Central & Ors 2005 (2) ZLR 394 (SC)…, as authority for this proposition.

(ii) It was submitted, further, that, the courts will use the power to issue a declaratur sparingly and with utmost caution. See Russian Commercial & Industrial Bank v British Bank for Foreign Trade Ltd [1921] 2 AC 438 (HL)…,. Viscount Finlay.

(iii) It is a power that will only be exercised where there is a good reason for so doing. See Vine v National Dock Labour Board [1957] AC 488 (HL)…,.

Should our courts be courts of law or courts of justice?

One would pre-suppose that the law is justice and that justice is the law. To the ordinary man, i.e. one who is un-tutored in the practice of the law and the pursuit of justice, it would appear that law and justice have a symbiotic relationship; one is nothing without the other. Yet, those who practice the law, will know that, often times than not, the rigid application of the law may lead to a palpable injustice. That is why the law is fluid, meaning that its application depends on the circumstances before the court.

The law must be applied to avoid perpetrating an injustice, especially where the extent of the injustice would be the non-suiting of a litigant, leaving the litigant with nowhere else to turn as it were. That is not to say that non-deserving litigants should be shielded from the inevitable consequences that flow from a correct application of the law. On the contrary, it is my view that our courts should be courts of law that derive their authority and legitimacy from a fair and impartial application of the law in the pursuit of justice and fairness.

The applicant filed a court application before this court on 8 May 2011 seeking an order for the amendment of the judgment handed down by this court on 23 January 2008 under case number HC4252/2001. The order of January 2008 reads as follows:

“Judgment is entered in favor of the plaintiff as follows:

That Defendant pays;

(a) BP63,750 as replacement value for his damaged vehicle.

(b) 83,717=09 for medical expenses.

(c) BP1,800,000 for loss of income.

(d) $3.50 for towing charges.

(e) BP12,000,000 for car hire charges.

(f) $2,000,000 for pain and suffering.

(g) $850,000 for disability.

(h) $1,000,000 for future medical expenses.

(i) Costs of suit.”

The order sought by the applicant in this matter relates to the Zimbabwe dollar component of that order. The applicant seeks an order that the judgment of this Honorable Court, in case number HC4252/2001, dated 23 January 2008 be amended as follows:-

“That the Defendant pays to the Plaintiff:

1. USD$2,790=60 for medical expenses.

2. USD$116=66 for towing charges.

3. USD$66,666=67 for pain and suffering.

4. USD$28,333=30 for disability.

5. USD$66,666=67 for future medical expenses.

6. Interest at the prescribed rate of 5% per annum calculated from the date of judgment to the date of payment.

7. Costs of suit.”

It is common cause that the respondent has paid in full for the component of the 2008 judgment which provides for payment in Botswana Pula, in terms of the order of the Supreme Court dated 28 February 2012. It is common cause that payment of the Zimbabwe dollar component of the 2008 judgment remains outstanding - although the respondent has tendered this payment to the applicant. It is common cause that the applicant did not attempt to execute in respect of the Zimbabwe dollar component at the date of the judgment in 2008, and that, in 2009, Zimbabwe adopted a multi-currency regime. It is also common cause that after the accident the applicant was disabled.

The applicant has come before this court and avers that he requires urgent medical attention.

He has attached a quotation from a medical specialist, Mr. Bijay B. Garach, dated 23 March 2012, to show that he requires an estimated USD$279,400= for surgery in Durban South Africa. The purpose of the surgery is to correct a condition of stiffness in the right knee which is possibly related to a fracture and muscle tightness and to an associated knee joint injury. Mr. B.A.V. Ncube, a specialist orthopedic surgeon, certified that the applicant is in pain and gross discomfort in his right foot, on 4 June 2012, and that he needs further surgery to remove the implants and to fuse his mid-foot and correct his mal-aligned toes.

The applicant is currently unemployed and has urgent need for funds in order to access the medical assistance he requires.

On 24 October 2012, the applicant's legal practitioners addressed a letter to the respondent to which they attached the judgment of 23 January 2008. In the letter, the respondent was reminded that the Zimbabwe dollar component of the judgment remained unpaid in a total of ZWD$4,937,217=09. It is common cause that the Zimbabwean dollar has fallen into disuse. The respondent was advised that the applicant had approached the Reserve Bank of Zimbabwe which had confirmed that as at 23 January 2008 one United States dollar was equivalent to ZWD$30,000=. Converting ZWD$3,937,212=10 to USD translates into USD$164,573=90. Interest at the prescribed sum translates to USD$41,143=47. The total demanded from the respondent is USD$205,717=38.

In a letter dated 8 November 2012, the respondent, through its legal practitioners, tendered the ZWD$ to the applicant on the basis that the Zimbabwean dollar was still valid currency, and that, it being the currency of the judgment which the applicant was seeking to enforce, that is the currency in which the applicant should be paid. The computation of the interest was brought into question.

In a letter dated 19 November 2012, the applicant's legal practitioners explained that interest had been calculated at the prescribed rate of interest from February 2008. In paragraph 12.1-14 of the founding affidavit the applicant avers that:

“I need to execute against the respondent. I need to have the judgment in my favor sounding in Zimbabwe dollars amended to reflect United States dollars so that I am paid in a currency that I will be able to use. I submit that the Zimbabwe Dollar is now moribund and has fallen into disuse. It is no longer the currency in use at the moment. There is no point in giving me, as respondent contends, the Zimbabwe dollars as I will not be able to use them to access the medical attention that I so badly and urgently require. I submit that I am entitled to effective remedies and giving me Zimbabwean dollars is hardly such effective remedies.”…,.

The notice of opposition was filed of record on 30 May 2013. Mr. Charles Stewart Gardiner deposed to the opposing affidavit on behalf of the respondent. He is a son of the Managing Director of the respondent, and himself a director of the respondent company. He averred that the applicant should apply to the court which granted the judgment in question for the judgment to be corrected in accordance with the rules of this court.

Mr. Gardiner denied that the applicant had a right to correct the judgment in terms of the rules of this court. He denied that the applicant was permanently disabled, although he accepted that the applicant was injured in the accident. He emphatically declared that the applicant was dishonest and that he had fraudulently exaggerated his injuries and allegations of disability. He denied that the applicant is in urgent need of medical attention. He reiterated that the applicant has already received a sum of USD$90,332=24 from the respondent and averred that this amount ought to have been more than sufficient to fund whatever medical attention the applicant allegedly requires.

It was admitted that the respondent is bound by the terms of the Supreme Court order.

The respondent expressed certainty that the applicant's awards which emanated from this court were based on fraud, fraudulent documents and perjured evidence, and referred the court to its application for leave to adduce further evidence which it filed before the Supreme Court simultaneously with its appeal under case number SC19-2008.

Mr. Gardiner averred that the court should have regard to the independent expert evidence that was filed before the Supreme Court to prove the allegations of fraud against the applicant. He re-iterated that the respondent believed that it was obliged to effect payment in the amount claimed by the applicant and awarded to him by the court. It was denied, on behalf of the respondent, that it was to blame for the applicant's hardship because the basis of the liability of the respondent arises entirely from a finding of vicarious liability for the negligence of its former employee.

Three issues fall for determination by this court;

(a) The first one is whether this court has jurisdiction to entertain this matter.

(b) The second issue for determination is whether it is competent for this court to award payment in United States dollars in respect of a judgment sounding in Zimbabwean dollars.

(c) Finally, we must determine whether it is competent to determine the rate of exchange by which the conversion may be made.

(a) Jurisdiction

It was submitted, on behalf of the applicants, that the High Court has jurisdiction to deal with any matter that is placed before it and that there is nothing amiss in this court dealing with a matter arising out of a judgment of this court. The court was referred to the case of Fleximail (Pvt) Ltd v Gift Bob David Samanyau & 3 Ors SC21-14 as authority for this proposition.

The court perused the judgment of the court a quo HH108-11/ HC5710-09.

The issue for determination, as it was understood by that court, was that the applicants had approached that court since it was the only court with inherent jurisdiction seeking a declaratur that the principle of currency nominalism has no place in Labour Law (i.e. a common law principle) as it would be at variance with the Labour Act's aim of achieving social justice. The applicants sought a further declaratur that to the effect that damages in lieu of reinstatement have to be paid in an effective manner, that is, in an amount, currency, and quantity that achieves fairness as required by the Labour Act. A further order compelling the respondent to pay damages in USD was sought. The principle relied on by the applicants was that a successful appellant ought to have the discretion to choose payment of damages in the currency that will redress the injury suffered and adequately compensate him for the loss as well as fulfill the objectives of the Labour Act.

The respondent had opposed the relief sought by the applicants before the High Court on the basis that the matters raised had been canvassed and dismissed by the Labour Court and were therefore res judicata; that this matter was purely a labour issue by virtue of section 89(6) of the Labour Act [Chapter 28;01]; that the court was being asked to usurp the role of Parliament by repealing the common law principle of currency nominalism and that the court was being asked to 'overrule” those decisions of the Supreme Court which had already made the point that in quantifying damages in labour disputes, the rates that are applicable are those that applied at the time of dismissal or suspension.

The High Court took the view that it was the only court with power to issue declaratory orders. On the issue of usurping the role of Parliament, the High Court took the view that 'it is not impermissible for the judiciary to make law by way of decided cases if an opportunity presents itself to plug a legislative gap especially where not to do so will leave many an unlawfully dismissed employee languishing in an asylum of financial misery'.

On page 5 of the judgment, the High Court postulated the question of whether, in the circumstances of the case before it, it ought to declare that 'in the realm of employment relations, the principle of nominalism has, for now, no place until economic normalcy has been restored.'…,.

Clearly, the High Court limited the application and scope of its judgment to the realm of employment relations and to the period during which there was lack of economic normalcy. It applied the principles of equity and enjoined itself to 'tread a path that will avoid iniquity and injustice where legislative intervention is not forthcoming.'

The High Court ordered the respondent to pay damages in USD using the official exchange rate obtaining as at 5 July 2007.

The respondent appealed.

The appeal and cross appeal came before a five member bench of the Supreme Court on 11 September 2013. The judgment of the Supreme Court was to allow the appeal to the extent of setting aside the judgment of the High Court for lack of jurisdiction. It was held, with the consent of both parties, that the matter should have been determined by the Labour Court.

It is this court's view that it would not be proper to rely on principles which were enunciated in the context of labour disputes, which differ materially from the matter under consideration, and in respect of which certain principles underline their conduct, which are not applicable here, such as social justice and equity. The court is bolstered in its view by the recent judgment of the Supreme Court, Madhatter Mining Company v Marvelous Tapfuma SC51-14, where the court stated that Fleximail (Pvt) Ltd v Gift Bob David Samanyau & 3 Ors HH108-11 had been overturned on appeal and could no longer be cited as authority or as a basis on which a court can convert damages awarded in Zimbabwe dollars to United States dollars.

The vexing question of whether the USD amount would give true value to the damages that the respondent would be entitled to was posed by the court.

True value was defined as a value that would 'neither over-compensate the respondent nor inadequately do so'. Other pertinent considerations for a court faced with the question of converting Zimbabwe currency to US$ were the issue the two main Zimbabwe dollar to USD$ exchange rates which obtained prior to 2009, i.e. the official and the unofficial rates….,. Finally, the Supreme Court emphasized that it is the Labour Court - and not the Supreme Court - which in endowed with jurisdiction to apply principles of equity in its determination of labour disputes based on the provisions of section 2A of the Labour Act [Chapter 28:01].

See Horace Nzuma & 2 Ors v Hunyani Paper & Packaging SC137-11.

I accepted the submission made on behalf of the respondent that this court has no similar jurisdiction to that of the Labour Court, to determine disputes on the basis of social justice or principles of equity.

The Labour Court, in Madhatter Mining Company v Marvelous Tapfuma SC51-14, was then given guidance by the Supreme Court and the matter was remitted back to it for the determination of the following issues:

(a) What is the effect of the change of currency effected in February 2009 on debts occurring before the effective date?

(b) Does the Labour Court have power to order payment in the operational currency (the United States dollar) of debts incurred under the Zimbabwe Dollar currency which, though not demonetized, is no longer in use?

(c) Has the principle of currency nominalism any application to the circumstances of this case?

(d) The method of calculating the quantum of the debt in current realizable currency if the conclusion of the above issues is in favor of payment in United States dollars.

These questions given for the guidance of the Labour Court are regurgitated here in the realization that these are the same questions that this court may have to determine if the question of jurisdiction in this matter before it is resolved in favor of the applicant.

In defence of this claim, the respondent raised the main point of the absence of jurisdictional basis on which the court can 'change' or 'convert' a judgment that was given by it in January 2008.

I am grateful to counsel for the respondent for the extensive heads of argument filed of record, which appeared to have been tailored to respond to the questions for guidance which were issued by the Supreme Court, as listed above, for the guidance of the Labour Court.

It was submitted, on behalf of the respondent, that if there is such a jurisdiction, there is a dispute as to whether it can be exercised five years after the original judgment and one year after the judgment of the Supreme Court in which the matter was not raised; whether the conversion is to take place on the date of the judgment or on the date on which payment is made; what the proper rate of exchange would be; whether the conversion can be made in respect of those heads of damages which were incurred and paid for in Zimbabwe dollar currency and awarded as special damages at trial; and, finally, the bona fides of the applicant.

The respondent submitted that medical expenses and towing charges are special damages which were incurred in Zimbabwe dollars not United States dollars. The loss was incurred 15 years ago in Zimbabwe dollars, the damages were alleged and proved seven years ago in Zimbabwe dollars. The respondent disputed the applicant's entitled to interest at the prescribed rate, or at any rate, on the basis that the prescribed rate of interest sought to be relied on was only introduced on 23 October 2009 by S.I.164 of 2009 and backdated to 23 October 2008.

Finally, the respondent submitted that, in respect of the three heads of general damages that the applicant now seeks payment for in foreign currency, which was not available to him, and which he did not seek, at the time of the trial, those damages are not due to him in any other currency other than the currency that he claimed them in.

It is trite that the cause of action for the relief being sought must be found in the founding affidavit. See Poseidon Ships Agencies (Pty) Ltd v African Coaling and Exporting Co (Durban) (Pty) Ltd 1980 (1) SA 313 (D); Director of Hospital Services v Mistry 1979 (1) SA 626 (A)…,.; Dajen (Pvt) Ltd v Durco (Pvt) Ltd 1998 (2) ZLR 235 (SC)…,.; Mangwiza v Ziumbe NO & Anor 2000 (2) ZLR 489 (SC)…,.

It was submitted, on behalf of the respondent, that the founding affidavit does not disclose the cause of action to support the relief sought. It was submitted, correctly in my view, that the applicant's need for urgent medical attention is not a jurisdictional basis for the relief sought. It was contended that the fact that the Zimbabwe dollar is now moribund and has fallen into disuse, and that, there is no point making payment in it, again affords the applicant no jurisdictional basis for the relief sought. Finally, it was submitted that to plead ad misericordiam that he is entitled to an effective remedy does not assist the applicant at all.

It is common cause that upon the introduction of the multi-currency basket in January 2009, Parliament did not see fit to introduce any legislation to enable this court to look at judgments given before January 2009.

It was contended that, in the absence of legislative authority that enables this court to look at judgments given in Zimbabwe dollars before dollarization in January 2009, we must be guided by the usual common law Rules. I find myself in full agreement with these statements of the law as it currently stands.

However, in case I am wrong in my view that there is no jurisdictional basis on which this court may grant the relief sought by the applicant, I will proceed to deal with the merits of the matter.

The law that underlies the legal principle of functus officio was summarized in the case of Firestone South Africa (Pty) Ltd v Genticuro 1977 (4) SA 298 (A)…, as follows:

“The general principle, now well established in our law, is that once a court has duly pronounced a final judgment or order, it has itself no authority to correct, alter, or supplement it. The reason is that it thereupon becomes functus officio, its jurisdiction in the case having been fully and finally exercised, its authority over the subject matter has ceased.

See West Rand Estates Ltd v New Zealand Insurance Co Ltd 1926 AD 173 @ p176, 178,186-7 and 192; Estate Garlick v Commissioner of Inland Revenue 1934 AD 499 @ p502…,. There are, however, a few exceptions to the rule which are mentioned in the old authorities and have been authoritatively accepted by this court…, provided the court is approached within a reasonable time of its pronouncing the judgment or order, it may correct, alter or supplement it in one or more of the following cases:

(i) The principal judgment or order may be supplemented in respect of accessory or consequential matters, for example costs or interest on the judgment debt which the court overlooked or inadvertently omitted to grant…,.

(ii) The court may clarify its judgment or order, if, on a proper interpretation, the meaning thereof remains obscure, ambiguous, or otherwise uncertain, so as to give effect to its true intention, provided it does not thereby alter 'the sense and substance' of the judgment or order…,.

(iii) The court may correct a clerical, arithmetical or other error in its judgment in order to give effect to its true intention…,.

(iv) Where counsel has argued the merits and not the costs of a case…, but the court makes an order granting costs…, it may thereafter correct, supplement or alter the order…,.”

The submission that none of these exceptions apply to the applicant was accepted by the court, as well as reference that the principle of finality in litigation (interest reipublicae ut sit finis litium) is a part of our law.

See Matanhire v BP Shell Marketing Services (Pvt) Ltd 2005 (1) ZLR 140 (SC)…,; Maheya v Independent Africa Church 2007 (2) ZLR 319 (SC)…,.

This court also accepted as correct, the submission made on behalf of the respondent, that the present application is not intended to supplement, clarify, or correct the judgment of January 2008 - but to alter its substance. The alterations are not incidental or consequential corrections - but go to the very heart of the orders made.

In respect of towing charges and medical expenses already incurred, the purpose of the application is to change the very basis of the currency in which those special damages were incurred. In respect of the three headings of general damages, the application intends to change the basis on which those damages were sought, when those damages were suffered in Zimbabwe, in the currency of payment then prevailing.

It is common cause that there was a considerable delay by the applicant in bringing this application, the original judgment having been handed down in January 2008 and the use of the United States dollar having been authorized by January 2009. The appeal was heard in October 2010 and the Supreme Court judgment handed down in February 2012. Nearly 15 years have passed since the accident in question and four and half years since dollarization. No explanation was given by the applicant for the inordinate delay in making this application. Any application to correct or supplement an order, whether in terms of the common law or under Rule 449 of the High Court Rules 1971, must be brought as soon as possible, or at the very least within a reasonable period. See West Rand Estates Ltd v New Zealand Insurance Co Ltd 1926 AD 173…,.

The leading cases on currency nominalism in this court merit discussion.

In Shava v Bergus Investments (Pvt) Ltd 2011 (2) ZLR 340 (HC), a full bench of this Court, through my brother MUTEMA J and CHIWESHE JP concurring, held that a party cannot revalue a judgment debt for purposes of execution. Citing Mukorera v Ocean Breeze Engine and Cooling Systems HH13-08…, the court held it to be trite that the principle of currency nominalism was part of the law of Zimbabwe. The court held that, to allow a party to change the currency of the judgment was 'not only incompetent for arbitrariness but offended against the time honored principle of currency nominalism'. The court said the following…,:

“That principle holds that a debt sounding in money has to be paid in terms of its nominal value irrespective of any fluctuations in the purchasing power of the currency.”

The court also said…,:

“It is beyond argument that the first respondent's debt sounded in money and the judgment was given in March 2008 with the specific directive that the values of whatever was damaged by the appellant were to be as at the time of judgment. The values were in Zimbabwe dollars and not in US dollars. The principle of currency nominalism was therefore still applicable. It was accordingly idle for the first respondent to revalorize its claim on execution. It ought to have made a court application for the conversion of the currency.”….,.

Counsel for the respondent…, submitted that, before this court came to above underlined conclusion, it ought to have examined, in greater detail, the impact of the 'once and for all rule' and of the submission that the court cannot 'convert' the currency on application because it will be functus officio.

I found this view persuasive.

It was submitted, further, that reliance on Mukorera v Ocean Breeze Engine and Cooling Systems HH13-08 should not have led the court to the conclusion that it came to, because, in that case, the court was emphatic in its view that:

“…, the distortions caused by inflation in the economy should not lead to the wholesale distortion of legal principles that have withstood the test of time in a bid to find legal solutions to a problem that is not legal in nature and origin and may prove to be transient. I am yet to be persuaded that revalorization is part of our law of debt collection.”

In conclusion, this court's opinion on the issue of currency nominalism, in the circumstances of this case, is that, while on the whole this court has inherent jurisdiction to ensure that the process of execution is neither abused nor unfair, it does not have jurisdiction to rewrite an order in the manner sought by the applicant. I hold the considered view that this court cannot revalue an order for the purpose of execution, let alone completely re-write an order granted nearly seven years ago. Any such power would have to be the consequence of legislation - which currently does not exist in Zimbabwe.

Under the common law, and as a protection against loss of value of a judgment, where a litigant has suffered a loss that can properly be expressed in foreign currency the court can enter judgment in foreign currency, but payment must be made in local currency converted as at the date of payment. See Makwindi Oil Procurement (Pvt) Ltd v National Oil Company of Zimbabwe 1988 (2) ZLR 482 (SC)…, where the court said that:

“Fluctuations in world currencies justify the acceptance of the rule not only that a court order may be expressed in units of foreign currency, but also that the amount of the foreign currency is to be converted into local currency at the date when leave is given to enforce the judgment. Justice requires that a plaintiff should not suffer by reason of devaluation in the value of the currency between the date on which the defendant should have met his obligation and the date of actual payment or the date of enforcement of the judgment. Since execution cannot be levied in foreign currency, there must be a conversion into local currency for this limited purpose and the rate to be applied is that obtaining at the date of enforcement.”

See also Standard Chartered Bank of Canada v Nedperm Bank Ltd 1994 (4) SA 747 (A)…, where it was stated that;

“…, the damages to be awarded in this case should be expressed in US dollars. It is implicit in any order to this effect that the judgment debt may be satisfied in South Africa by payment in the foreign currency or by payment of its equivalent in Rand when paid.”

This court is persuaded by the contention, which is supported by various decisions by the Supreme Court and the High Court, that, had the judgment in this matter been sought and made after January 2009, even in respect of an accident that occurred before that date, judgment could be granted in foreign currency as being the effective currency to redress the loss.

As further authority for this proposition, see Kwindima v Mvundura 2009 (1) ZLR 168 (H).

However, in this case, judgment was sought prior to January 2009, specifically in Zimbabwe dollars, and quite clearly Zimbabwe dollars is the currency in which the losses were sustained.

Section 41 of the Reserve Bank of Zimbabwe Act [Chapter 22:15] reads:

“41 Legal tender of banknotes

(1) A tender of a banknote which has been issued by the Bank and which has not been demonetised in terms of subsection (2) shall be legal tender in payment within Zimbabwe of the amount expressed in the note.

(2) The President may, by statutory instrument, call in and demonetize any banknotes issued by the Bank, and shall likewise determine the manner in which and the period within which payment for such banknotes shall be made to the holders thereof.”

It is common cause that the President has not demonetized the Zimbabwe currency in terms of the Presidential Powers (Temporary Measures) (Currency Revaluation and Issue of New Currency) Regulations 2009, as confirmed by the Finance Act 2009, and that, he had not done so at the time that this application was filed, on 8 May 2013.

Section 44 of the Reserve Bank of Zimbabwe Act [Chapter 22:15] provides that:

“44A Legal tender of foreign currencies

The Minister may, in regulations made under section 64, prescribe that, subject to such conditions as may be specified in the regulations, a tender of payment in any currency other than Zimbabwean currency shall be legal tender in all transactions or in such transactions as may be specified in the regulations.”

It is submitted, on behalf of the respondent, quite correctly in my view, that this provision does not render the Zimbabwe currency to be moribund, but that it allows foreign currencies to be treated as legal tender in addition to the Zimbabwe currency. It was correctly submitted, in my view, that there is no statute or other legal instrument that has abolished or suspended the existence of the Zimbabwe currency. Accordingly, as a matter of law, if not practice, the Zimbabwe currency still exists. See Stuart v National Railways of Zimbabwe (unreported)…,.

If any conversion is to take place for the purposes of allowing the enforcement of a judgment granted before February 2009, in Zimbabwe currency, it must be done at the rate prevailing on the date of payment, not the date of judgment….,.

The Legislature, in its wisdom, only enacted section 44A of the Reserve Bank Act, and did not see fit to provide a further framework to guide us on how to dispose of these matters. If the applicant's judgment has been rendered incapable of being satisfied through lack of a legislative framework that regulates its execution, then the applicant's remedies must lie with the Legislature.

The applicant seeks to use the date of judgment as the date on which conversion into US dollars is to be made, and seeks to use the rate of exchange allegedly applicable on that date. However, it is pertinent to note that, at the date of the judgment, January 2008, the use of United States dollars in Zimbabwe was not permitted, and any judgment given in United States dollars as being the currency in which the loss was sustained could only be satisfied by the payment of Zimbabwe currency as at that date.

This court lacks that jurisdictional basis to make any conversion as at the date of judgment because such conversion would, at that time, have been contrary to exchange control legislation. Any attempt to do a conversion as at the date of the judgment would in effect be to render a completely new judgment, in breach of the once and for all rule.

The 'once and for all rule' is a common law rule that stipulates that a plaintiff must claim, in a single action, compensation for the damage he has already suffered and the prospective loss which he reasonably expects to suffer in future. See Oslo Land Co Ltd v Union Government 1938 AD 584…,.; and Custom Credit Corporation (Pty) Ltd v Shembe 1972 (3) SA 462 (A)…,.

In his book The Law of Delict, PROFESSOR BOBERG sums up the common law position as follows:

“A single wrongful act gives rise to a cause of action for all damage, past and future, that it causes. This means that a plaintiff cannot claim compensation piecemeal for his various losses as they occur: he must sue 'once and for all' for the whole of his damage, seeking redress not only for the harm he has already suffered (actual or accrued loss) but also for the harm he expects to suffer in the future (prospective loss). And if he succeeds he will generally be awarded damages in a lump sum, payable immediately, in respect of both past and future losses.”

See also Elvins v Shield Insurance Co Ltd 1980 (2) SA 814 (A)…, where the court said:

“The 'once and for all' rule applies especially to common law actions for damages in delict, though it has also been applied to claims for damages for breach of contract….,. Expressed in relation to delictual claims, the rule is to the effect that in general a plaintiff must claim, in one action, all damages…,. This rule appears to have been introduced into our practice from English Law. Its introduction and the manner of its application by our courts have been subject to criticism…, but it is a well entrenched rule. Its purpose is to prevent a multiplicity of actions based upon a single cause of action to ensure that there is an end to litigation.”

In Dube v Banana 1998 (2) ZLR 92 (HC)…, the law in Zimbabwe was stated in the following terms:

“Our law recognizes the 'once and for all rule' which states that a plaintiff, when suing for damages, must sue for all his damages in a single action, both for loss suffered and for prospective loss…,. In my opinion, the once and for all rule should be modified. I consider this can best be done by an Act of Parliament rather than by 'judge-made law', which is, by its very nature, haphazard and piecemeal. The Law Development Commission of Zimbabwe issued a report entitled Report No. 43: 'Once and for all rule in claims for damages', in which, as the title suggests, it examined the rule and in which it made recommendations for its reform.”

Parliament has not intervened to change the law.

This court accepts as a correct application of the law to the circumstances of this case that the applicant has had his once and for all right to claim damages for the injuries which he sustained in the accident. He elected to litigate for those damages in 2008. He claimed those damages partly in Zimbabwe currency and partly in Botswana Pula. He received the awards he sought. He had a further opportunity to recast his case before the Supreme Court, in October 2010, when the appeal was heard, which was after dollarization. He chose not to do so, or to seek the leave of the Supreme Court to have the Zimbabwe dollar component of the judgment 'converted' to a currency that he could use. The Supreme Court, on application for its leave, would have had an opportunity for 'judge made law' to decide whether to remit the matter back to this court for evidence to be adduced on the question of the 'conversion' of the Zimbabwe dollar component of the judgment to a currency of the applicant's choice.

The applicant cannot now come back to this court seeking to change the judgment given to him. The applicant has already had his day in court he cannot now come for a second judgment arising out of the same circumstances as the first.

Res judicata is a rule that matters which have already been adjudicated upon between the same parties cannot be adjudicated again. It is a consequence of the 'once and for all rule'.

In Union Wine Ltd v Snell and Co Ltd 1990 (2) SA 189 (C)…, the Judge said:

“Although it is not clear from the cases whether the 'once and for all' rule is just a manifestation of the exceptio rei judicatae or whether it has a wider range than the latter, it is settled practice in South Africa that where a cause of action gives rise to more than one remedy a plaintiff who pursues one of those remedies and has obtained a judgment thereupon can be met with a plea of res judicata if he should institute a second action to pursue one of the other remedies.”

It is common cause that the parties before this court are the same as those before the court in 2008. It is common cause that the cause of action is the same and that damages are being sought pursuant to that cause of action. In the January 2008 judgment this court decided that the applicant had suffered damages which required to be redressed by the payment of Zimbabwe currency. This court accepts that all those issues are now res judicata and cannot be re-opened.

In the result, this court finds that it has no jurisdiction to grant the relief sought by the applicant, and that, no factual basis has been laid in the founding affidavit to justify granting the relief sought. The court is functus officio, the damages which the applicant seeks to be 'converted' to another currency now, were assessed and awarded in 2008. Any attempt to re-assess the award made in 2008 now, even if such assessment involves the calculation of the value of the damages in a different currency, would amount to changing the nature of the judgment given in 2008, a power which is only available to a superior court on appeal.

The matter cannot properly be determined by the improper use of this court's inherent jurisdiction.

This court's inherent jurisdiction does not cloak it with power to re-determine issues between the same parties which have already been conclusively determined. It may only do so on limited grounds where it is directed to do so by a higher court, the Supreme Court, and on very specific directions. There being no such direction from the Supreme Court, to this court, it is trite that the issues between the parties are res judicata.

This court has no jurisdiction to exercise the same principles of social justice and equity as the Labour Court, and any attempt to rely on labour matters, as the basis for inviting this court to exercise powers that are specific to and pertinent to the Labour Court will find no truck with this court.

In the circumstances of this case, where 'accident damages' were assessed and awarded as special damages and general damages, under the law of delict, it is my view that, there is no factual or legal basis in the papers filed of record, on which this court can 'convert' a 2008 judgment made in Zimbabwe currency to United States dollars.

Despite this finding, this court respectfully declines to exercise its discretion and grant punitive costs against the applicant as advocated for by counsel for the respondent.

Accordingly, the application is dismissed with costs on an ordinary scale.

On 21 December 1999 at the 12km peg along the Rusape to Nyanga road a horrific collision involving the respondent and an employee of the appellant occurred. The former sustained frightful injuries. Sadly, the appellant's employee succumbed to injuries occasioned from the collision.

The following facts are common cause.

The respondent sued for and was awarded damages by the High Court on 23 January 2008. The damages so awarded were the following:

(i) BP (Botswana Pula) 63,750 for the cost of replacement of a vehicle;

(ii) BP83,717=90 in respect of medical expenses.

(iii) BP1,800,000 for loss of income.

(iv) Z$3,500 towing charges.

(v) BP12,000,000 car hire charges.

(vi) Z$2,000,000 shock, pain and suffering.

(vii) Z$850,000 disability damages.

(viii) Z$1,000,000 future medical expenses.

The appellant was dissatisfied with the judgment and appealed to this Court against the finding of vicarious liability as well as the amounts awarded in Botswana Pula (BP). There was no appeal against the amounts denominated in the Zimbabwe dollar. On 28 February 2012 this Court, in the case of The Cold Chain (Pvt) Ltd v Robson Makoni SC09-12, issued an order in the following terms:

“IT IS ORDERED THAT:

1. The application to adduce further evidence is dismissed with costs.

2. The appeal against the finding of vicarious liability is dismissed.

3. The appeals in respect of the value of the replacement motor vehicle, vehicle hire charges, and lost income are allowed and the order of the court a quo is altered in the following respects:

(i) In paragraph (a), Botswana Pula 40,000 is substituted for BP63,000;

(ii) In paragraph (c), Botswana Pula 616,200 is substituted for BP1,800,000;

(iii) In paragraph (e), Botswana Pula 6,000 is substituted for BP12,000,000.

4. There will be no order as to costs of appeal.

It is common cause that the appellant paid the amounts denominated in Botswana Pula. In respect of the other sums it tendered payment in Zimbabwe dollar. The respondent rejected the tender. He contended that due to the erosion of the currency it had become moribund due to disuse, and, as such, he had no use for it. He could not tender the same for payment to anyone.

An impasse ensued which resulted in the respondent filing an application with the High Court for the conversion to United States Dollars of the sums awarded to him in the local currency.

The High Court found that it had no jurisdiction to convert the amounts thus awarded to United States dollars. It said:

“In conclusion, this Court's opinion on the issue of currency nominalism, in the circumstances of this case, is that, while on the whole this Court has inherent jurisdiction to ensure that the process of execution is neither abused nor unfair, it does not have jurisdiction to rewrite an order in the manner sought by the applicant. I hold the considered view that this Court cannot revalue an order for purpose of execution.”

In short, it declined jurisdiction.

The respondent was aggrieved and appealed to this Court and was successful. In Robson Makoni v The Cold Chain t/a Sea Harvest SC55-16, this Court said the following:

“The principles enunciated in the case of Dube (supra) demonstrate that the once and for all rule is not applicable to the facts of this case because the applicant is not seeking further damages for the injuries he sustained in the accident. He is seeking the conversion of the damages he was awarded by the High Court in 2008 in Zimbabwean dollars to United States dollars. The appellant's application is intended to facilitate the enforcement of the order of damages in Zimbabwean dollars. The once and for all rule prevents a plaintiff from seeking further damages from a cause of action previously sued on. It does not prevent him from seeking the currency adjustment of an order already granted by the court.

Courts have authority to adjust their orders but under prescribed circumstances. Those circumstances depend mainly on whether or not the court will be functus officio.

The court a quo erred by relying on the once and for all rule to hold that it had no jurisdiction to hear the appellant's application. The application was for the conversion of already granted Zimbabwean dollar awards to United States dollars, which both parties agree have not yet been paid as there is a dispute as to how payment should be made. It was thus premised on a subsequent dispute over how damages awarded by the High Court in 2008 should be enforced.

The court's awards had been made uncertain by the dollarization of the Zimbabwean economy.

The appellant could not have reasonably foreseen that the Zimbabwe currency was going to be rendered moribund by the introduction of the United States dollar as usable currency in Zimbabwe.”

The court therefore allowed the appeal and issued an order in the following terms:

“Accordingly, it is ordered as follows;

1. The appeal is allowed with costs.

2. The decision of the court a quo is set aside.

3. The matter is remitted back to the court a quo for a hearing and determination on the merits.”

This matter has trudged a long and tortuous journey.

The applicants are former employees of the respondent who were charged with misconduct and dismissed in 2005 following disciplinary processes. The applicants challenged their dismissal right up to the Labour Court in case number LC/H15/06. The Labour Court found for the applicants on 5 July 2007 and ordered their reinstatement, alternatively, payment of damages in lieu of reinstatement. The respondent opted to pay damages, caused their quantification on 10 December 2008 equivalent to 5 years salary using the cut off date of 5 July 2007 and tendered them to the applicants.

The tender, dated 11 February 2009 from the respondent's legal practitioners addressed to the applicants' erstwhile legal practitioners, Mwonzora & Associates, reads:

“RE: L MAWERE AND OTHERS v FLEXMAIL: QUANTIFICATION OF DAMAGES

In line with the judgment of the Labour Court handed down on 10 December 2008, please find herewith our client's cheque in the sum of $12,594=77 (revalued) in full settlement of the amounts due to your clients. A copy of the schedule as to how the various figures were arrived at is attached hereto.

You will note from the computation that the amounts have been revalued and inflation adjusted to February 2009.

The matter is accordingly closed…,.”

The applicants, through their then legal practitioners mentioned above rejected the tender and returned the cheque in question. The attempt at payment was tendered after breakdown of quantification negotiations. The primary reason for rejecting the tender was that the respondent attempted to pay the damages in Zimbabwe dollars in February 2009 when the currency had become moribund.

In their amended draft order the applicants are seeking a declaratory order in the following terms:

“IT IS HEREBY ORDERED:

1. The respondent be and is hereby ordered to pay damages in lieu of reinstatement to the applicants in United States Dollars using the initial United States Dollar salary scales which were used by the respondent when it started paying its employees in foreign currency.

2. That the respondent pay the costs of suit.”

The main thrust of the applicants' argument, as gleaned from the founding affidavit and heads of argument, is as follows:

The applicants have approached this court, since it is the only court with inherent jurisdiction, seeking a declaratur that the principle of currency nominalism has no place in Labour Law (a common law principle) as it would be at variance with the Labour Act's aim of achieving social justice. Further, they seek a declaration to the effect that damages in lieu of reinstatement have to be paid in an effective manner, that is in an amount, currency, and quantity that achieves fairness as required by the Labour Act. The applicants further seek an order compelling the respondent to pay damages in United States dollars using the initial United States dollar salary scales which were used by the respondent when it started paying its employees in foreign currency i.e. in February 2009. A successful appellant, so the argument went, should have a discretion to choose payment of damages in the currency that will redress the injury suffered and adequately compensate him/her/ it for the loss as well as fulfil the objectives of the Labour Act.

Interpreting the order of the Labour Court to mean payment in Zimbabwe dollars would amount to making the order a brutum fulmen because the Zimbabwe dollar, by the time of the tender, had became de facto valueless and useless, this would amount to non-payment thereby reducing court orders into empty judgments which is both unfair and against public policy.

The respondent's opposition was premised on the following main planks:

1. The matter is res judicata in that the Labour Court handed down judgment in case number LC/H/15/06 ordering the respondent to either reinstate the applicants or pay damages in lieu thereof. Following quantification of such damages, the amount due and payable was duly remitted to the applicants. In the event, this application disguised as an “application for a declaratory order” is merely meant to deal with the same issues which were concluded by the Labour Court.

2. The issue brought before this court is an employment/labour issue and by virtue of section 89(6) of the Labour Act [Chapter 28:01], the jurisdiction of this court is ousted.

3. What the applicants are asking this court to do is to:

3.1 Ignore the salaries payable to the applicants as at 5 July 2007 when an order of reinstatement was made by the Labour Court.

3.2 Depart from the current position of law and order payment of damages based on a date after the order of reinstatement was made.

3.3 Ignore the lawful currency that governed the contractual relationship between the parties as at 5 July 2007 (which required payment of salaries in Zimbabwe dollars) and set aside that trite position to enable the applicants to be paid afresh damages in lieu of reinstatement in US dollars. This is despite the fact that, as at 5 July 2007, the applicants' employment contracts entitled them to remuneration in Zimbabwe dollars and not in US dollars sought by the applicants.

4. The issues raised by the applicants have been dealt with by the courts on many occasions and are not unique to the applicants.

I am mindful of the fact that what the applicants are inviting this court to do, as submitted by counsel for the respondent, boils down to two pertinent issues, viz:

1. To do that which Parliament should, i.e. to make law by repealing the common law principle of currency nominalism; and

2. To “overrule” those decisions of the Supreme Court which have already made the point that in quantification of damages in respect of labour disputes, the rates that are applicable are those that applied at the time of dismissal or suspension. See Redstar Wholesalers v E Mabika SC52-05 and First Mutual Life Limited v Jackson Muzivi 2000 (1) ZLR 325 (S).

Points 3 and 4 of the respondent's opposition cited above are interwoven with point 2 cited immediately above so I shall deal with them pari passu…,. First, let me deal with points one and two of that opposition quoted above. They allude to the issue of res judicata and ousting of this court's jurisdiction by virtue of section 89(6) of the Labour Act....,.

Regarding the issue that this court's jurisdiction is ousted by section 89(6) of the Labour Act [Chapter 28:01], I am unable to subscribe to this view. The subsection cited provides that:

“(6) No court, other than the Labour Court, shall have jurisdiction in the first instance to hear and determine any application, appeal or matter referred to in subs (1)”.

Subsection (1) has six paragraphs listing the functions to be exercised by that court to the exclusion of all other courts. Those functions do not include issuing declaratory orders. This meant that the Labour Court has no inherent jurisdiction to issue declaratory orders, and, in the event, the jurisdiction of the High Court remains intact.

In Sibanda & Anor v Chinemute NO & Anor HH131-04, MAKARAU JP…, put it aptly thus:

“Thus, the power to issue a declaratory order is not available in all courts that apply common law. It is specific to this court…,.

It is common cause that the Labour Court has not been specifically empowered to issue declaratory orders as this court has been. It cannot create such a relief or the procedure for granting such relief as it is not a court of inherent jurisdiction.”

I am in respectful agreement with this view.

This is a chamber application for an order for leave for direct access to the Constitutional Court (“the Court”) in terms of section 167(5) of the Constitution of Zimbabwe Amendment (No.20) Act 2013 (“the Constitution”), as read with Rule 21(2) of the Constitutional Court Rules S.I. 61/2016 (“the Rules”).

The applicant intends to place before the Constitutional Court a matter relating to the constitutional validity of a decision of the Supreme Court (“the court a quo”) in a case involving non-constitutional issues. The allegation is that the decision of the court a quo in Thousand Sadziwani v Natpak (Pvt) Ltd SC06-17 infringed the applicant's fundamental rights to equal protection of the law, the right to fair labour standards and practices, the right to administrative justice, and the right to a fair hearing, enshrined in sections 56(1), 65(1), 68(1) and 69(1) of the Constitution, respectively. The main application is intended to be made in terms of section 85(1)(a) of the Constitution.

The Court holds that the applicant has failed to demonstrate that a constitutional issue was raised before and determined by the court a quo. The Constitutional Court cannot exercise its constitutional jurisdiction over non-constitutional matters. It is not in the interest of justice to grant leave for direct access to the applicant. The application is without merit and ought to be dismissed with costs. The reasons for the decision are set out below.

The applicant was employed by the first respondent as a Production Controller. In March 2013 he was suspended from work on allegations of theft, it being alleged that he had stolen salt-bags from the third respondent, which was a client of the first respondent. In April 2013, a disciplinary hearing was conducted and the applicant was convicted of theft and subsequently dismissed from the first respondent's employ. Dissatisfied with the dismissal, the applicant appealed to the first respondent's Appeals Committee, which confirmed his conviction and upheld the penalty of dismissal.

Aggrieved, the applicant noted an appeal to the Labour Court challenging his dismissal. He alleged that there had been procedural irregularities that vitiated the disciplinary proceedings which had culminated in his dismissal. The Labour Court dismissed the appeal and held that there was no basis for interfering with the Appeals Committee's decision.

The applicant appealed against the judgment of the Labour Court to the court a quo. The court a quo upheld the Labour Court's findings, which were to the effect that the alleged procedural irregularities did not vitiate the correctness of the findings of the disciplinary proceedings. The applicant's failure to cross-examine the first respondent's witnesses during the disciplinary proceedings was also held against him. Consequently, the appeal was dismissed with costs.

On 2 November 2018, the applicant filed the current application for “leave of direct access to the Constitutional Court in terms of section 167(5) of the Constitution of Zimbabwe, as read with Rule 21(2) of the Constitutional Court Rules 2016”.

He alleged that there was an infringement of his rights under section 56 of the Constitution. He said that he was discriminated against when charges of theft were preferred against him, whilst the casual workers he was working with were not charged. The applicant further alleged that his right to fair labour standards, under section 65 of the Constitution was violated because his dismissal was unfair. He also alleged that the right to fair administrative conduct, enshrined in section 68(1) of the Constitution, was violated by the court a quo. The contention was that the court a quo ought not to have held that the applicant should have cross examined the witnesses who testified against him at the disciplinary hearing.

The court a quo was also alleged to have violated the applicant's right to a fair trial enshrined in section 69(1) of the Constitution. An allegation was also made that the court a quo was biased against the applicant. The applicant further alleged that the charge of theft was never proved, thus his rights in terms of section 70(1) of the Constitution were violated. Lastly, the applicant claimed that there was an infringement of section 162 of the Constitution, it being alleged that the first respondent's disciplinary committee ought not to have charged him with theft when he had been acquitted of the same charge by a Magistrate's Court.

The application for an order for direct access was opposed by the first and the third respondents. They argued that no constitutional issues arose before the court a quo. They further contended that the application was in fact an appeal against the decision of the court a quo on a labour matter disguised as an application for an order for direct access. They prayed that the application be dismissed with costs.

The application was also opposed by the second respondent…,. On the merits, the second respondent argued that the cause of action was an alleged unfair dismissal, which did not raise constitutional questions for determination by the court a quo. He argued that the application was a disguised appeal against the decision of the court a quo on non-constitutional issues. He prayed that the application be dismissed with no order as to costs.

An application for an order for direct access is regulated by the Constitutional Court Rules. An applicant has to satisfy all the requirements set out in the relevant Rules. Compliance with the Rules is not a mere formality. As was stated in Liberal Democrats and Ors v The President of the Republic of Zimbabwe, E.D. Mnangagwa N.O. and Ors CC07-18…,;

“Direct access to the Constitutional Court is an extraordinary procedure granted in deserving cases that meet the requirements prescribed by the relevant Rules of the Court.”

Rule 21(3) of the Rules contains the requirements that ought to be satisfied in an application of this nature. It states the following:

“(3) An application in terms of subrule (2) shall be filed with the Registrar and served on all parties with a direct or substantial interest in the relief claimed and shall set out -

(a) The grounds on which it is contended that it is in the interests of justice that an order for direct access be granted; and

(b) The nature of the relief sought and the grounds upon which such relief is based; and

(c) Whether the matter can be dealt with by the Court without the hearing of oral evidence or, if it cannot, how such evidence should be adduced and any conflict of facts resolved.”

Subrule (2) of Rule 21 of the Rules requires that an application for an order for direct access should be supported by an affidavit setting out the facts upon which the applicant relies for relief.

The importance of the requirement that an applicant should show that it is in the interests of justice that the application be granted has been explained by CURRIE I and de WAAL J in “The Bill of Rights Handbook” (6ed, Juta & Co (Pty) Ltd, Cape Town, 2013)…,. The learned authors said:

“Direct access is an extraordinary procedure that has been granted by the Constitutional Court in only a handful of cases….,. The Constitutional Court is the highest court on all constitutional matters. If constitutional matters could be brought directly to it as a matter of course, the Constitutional Court could be called upon to deal with disputed facts on which evidence might be necessary to decide constitutional issues which are not decisive of the litigation and which might prove to be of purely academic interest, and to hear cases without the benefit of the views of other courts having constitutional jurisdiction. Moreover…, it is not ordinarily in the interests of justice for a court to sit as a court of first and last instance in which matters are decided without there being any possibility of appealing against the decision given.”

In Lytton Investments (Pvt) Ltd v Standard Chartered Bank Zimbabwe Ltd and Anor CC11-18, the Constitutional Court stated the factors that have to be taken into account in considering whether an applicant in an application for an order for direct access has shown that it is in the interests of justice that he, she or it be granted the relief sought. The Court held as follows…,:

“The Court turns to determine the question whether the applicant has shown that direct access to it is in the interests of justice. Two factors have to be satisfied. The first is that the applicant must state facts or grounds, in the founding affidavit, the consideration of which would lead to the finding that it is in the interests of justice to have the constitutional matter placed before the Court directly, instead of it being heard and determined by a lower court with concurrent jurisdiction. The second factor is that the applicant must set out, in the founding affidavit, facts or grounds that show that the main application has prospects of success should direct access be granted.”

It is essential that an applicant demonstrates in his or her or its founding affidavit that it is in the interests of justice that direct access be granted. In Liberal Democrats and Ors v The President of the Republic of Zimbabwe, E.D. Mnangagwa N.O. and Ors CC07-18, the Court found as follows…,:

“It is imperative for an applicant for an order for leave for direct access to indicate that it is in the interests of justice that an order for direct access be granted. Where the affidavit does not satisfy the requirement, the application has no basis. Rule 21(3)(a) requires that the founding affidavit should have regard to the matters that show why the interests of justice would be served if an order for direct access is granted. Mr Chihambakwe correctly pointed out that the applicants' founding affidavit was wanting in that regard. The applicants did not provide the factual foundation on which the Court could make its decision whether the application, if granted, would be in the interest of justice. There was therefore no compliance with Rule 21(3)(a).”…,.

The applicant's founding affidavit does not state the basis upon which the Constitutional Court should consider that it is in the interests of justice to grant the application. Such omission is fatal to the application because the application is not compliant with the Rules. The application has no basis. An application stands or falls on its founding affidavit.

It is settled law that the jurisdiction of the Constitutional Court is triggered only where a constitutional matter arose in the court a quo and was decided by that court. Section 332 of the Constitution defines a constitutional matter as “a matter in which there is an issue involving the interpretation, protection or enforcement of this Constitution”. The jurisdictional effect of the definition of a constitutional matter was discussed in Moyo v Sergeant Chacha and Ors CC19-17…, as follows:

“The import of the definition of 'constitutional matter' is that the Constitutional Court would be generally concerned with the determination of matters raising questions of law, the resolution of which require the interpretation, protection or enforcement of the Constitution.

The Constitutional Court has no competence to hear and determine issues that do not involve the interpretation or enforcement of the Constitution or are not connected with a decision on issues involving the interpretation, protection or enforcement of the Constitution.”

It also ought to be noted that the mere citation of constitutional provisions or alleged infringements of constitutional rights does not mean that a constitutional issue has been raised.

In Magurure and Ors v Cargo Carriers International Hauliers (Pvt) Ltd t/a Sabot CC15-16 the Constitutional Court had occasion to deal with this aspect. It stated as follows…,:

“Have the applicants brought to the Court for determination a matter in which there is an issue involving the interpretation, protection or enforcement of the Constitution? The fact that the applicants allege that the respondent has, by the conduct it is alleged to have committed, infringed their fundamental right to fair and safe labour practices enshrined in section 65(1) of the Constitution does not mean that they have raised a constitutional matter. It is for the Court to decide whether the determination of the legality of the conduct of the respondent, if proved, would require the interpretation and application of section 65(1) of the Constitution.”

Du PLESSIS M, PENFOLD G and BRICKHILL J, Constitutional Litigation, 1ed, Juta & Co Ltd, Cape Town, 2013…, discuss the scope of what constitutes a constitutional matter. They state that:

“While the ambit of the phrase 'constitutional matter' is clearly very wide, it is not unlimited. Most significantly, the Constitutional Court indicated that a purely factual matter does not amount to a constitutional matter. For example, in S v Boesak 2001 (1) SA 912 (CC) the appellant contended that the decision of the Supreme Court of Appeal, upholding his conviction for fraud and theft, contravened his rights to a fair trial (and particularly the right to be presumed innocent) and to freedom and security of the person. The basis for this contention was the allegation that the Supreme Court of Appeal erred in its evaluation of the evidence and in finding that Boesak's guilt had been proved beyond reasonable doubt. The Constitutional Court rejected this argument, holding that 'the question whether evidence is sufficient to justify a finding of guilt beyond a reasonable doubt cannot in itself be a constitutional matter' or, put differently, disagreement with the Supreme Court of Appeal's assessment of the facts is not a breach of the right to a fair trial. The court thus held that 'unless there is some separate constitutional issue raised…, no constitutional right is engaged when the applicant merely disputes the findings of fact made by the Supreme Court of Appeal.'”

The above remarks are apposite. The applicant in casu merely challenged the correctness of the factual findings by the court a quo and no constitutional issues arise therefrom.

In The Cold Chain (Pvt) Ltd t/a Sea Harvest v Makoni 2017 (1) ZLR 14 (CC)…, the Constitutional Court discussed the test to be applied in determining whether or not the court a quo determined a constitutional matter. It held as follows:

“The principles to be applied in the determination of the question whether the Supreme Court determined a constitutional matter are clear. It is not one of those principles that the court against whose judgment leave to appeal is sought should have referred to a provision of the Constitution. There ought to have been a need for the subordinate court to interpret, protect or enforce the Constitution in the resolution of the issue or issues raised by the parties. The constitutional question must have been properly raised in the court below. Thus, the issue must be presented before the court of first instance and raised again at or at least be passed upon by the Supreme Court, if one was taken.”…,.

It was the applicant's allegation that he was unfairly discriminated against by the first respondent, in that charges of theft were preferred against him and not the casual workers he was working with. He further alleged that there was no basis for such differential treatment.

On that allegation, he claimed that his fundamental right to equal protection of the law enshrined in section 56(1) of the Constitution was violated.

The position of the law is that an employer has a discretion to choose whom to discipline out of a group of employees who may have committed an act of misconduct. The basis of the discretion is the principle of privity of contract. Once an employer takes a serious view of an employee's misconduct, the employer can institute disciplinary proceedings against that employee. As a matter of law, it matters not that others, believed by the affected employee, to be equally guilty of the act of misconduct charged against him or her are not charged. It is the consideration of the individual employee's own alleged acts of misconduct which influences the decision by the employer whether to charge him or her with misconduct.

In Zimbabwe Banking Corporation Ltd v Mbalaka SC55-15, the court…, expressed the following view:

“The Labour Court also relied on the dicta in Lancashire Steel (Private) Limited v Mandevana & Ors SC29-95, wherein the court stated:

'Arguments may be addressed ad misericordiam as to how unfair it is that the four respondents out of a number of forty workers who participated in the collective unlawful job action should have been selected for punishment, but, such arguments cannot absolve them of their breach of their statutory duty not to participate in such action. It is not uncommon for the alleged ringleaders in any unlawful gathering or action to be singled out for punishment. If they are guilty it is not in law relevant that others may also have been guilty.'…,.

It is beyond doubt that the Labour Court was alive to the discretion that is reposed in the employer in the application of this principle in disciplining an employee for an alleged misconduct as appears in the following statement by the court a quo:

'This does put to rest the argument about perceived selective punishment and victimisation. The respondent should face the consequences of his actions and cannot be allowed to hide behind others.'”

See also Mashonaland Turf Club v Mutangadura 2012 (1) ZLR 183 (S).

The question whether or not the applicant's right to equal protection and benefit of the law was infringed would not have arisen from the fact that the employer decided to prefer a charge of theft against him to the exclusion of the casual workers with whom he had been working.

It was also the applicant's contention that his fundamental right to fair labour standards, enshrined in section 65(1) of the Constitution, was violated by the first respondent. It was alleged that his dismissal from the first respondent's employ was unfair. In support of this allegation, the applicant narrated a number of alleged procedural irregularities, ranging from the composition of the first respondent's disciplinary committee and appeals committee to sinister motives of the Chairman of the latter.

The applicant did not deny the alleged commission of the offence.

The principle of law is that labour matters ought not to be decided on technicalities. A guilty party ought not to escape the consequences of his or her actions owing to procedural technicalities. See Air Zimbabwe (Pvt) Ltd v Mnensa and Anor SC89-04.

The unfairness or otherwise of the applicant's dismissal is a matter that fell entirely in the realm of Employment Law. Section 12B of the Labour Act [Chapter 28:01] (“the Labour Act”) regulates matters of unfair dismissals.

A litigant cannot challenge the conduct of a decision-maker as breaching a fundamental right under the Constitution without first utilising the remedies offered by the legislation that gives effect to that right. Where there is legislation giving life to a fundamental right, a litigant cannot found a cause of action directly on the Constitution without attacking that statute as being unconstitutional.

In Zinyemba v Minister of Lands & Rural Settlement and Anor 2016 (1) ZLR 23 (CC)…,, the Constitutional Court stated the following:

“Two principles discourage reliance on the constitutional rights to administrative justice. The first is the principle of avoidance which dictates that remedies should be found in legislation before resorting to constitutional remedies. The second principle is one of subsidiarity which holds that norms of greater specificity should be relied on before resorting to norms of greater abstraction.

The applicant is not challenging the constitutional validity of any provision of the Administrative Justice Act [Chapter 10:28] nor is she seeking to use the constitutional rights to administrative justice to interpret the provisions of the Administrative Justice Act. The exceptional circumstances in which an applicant can rely on the constitutional rights to administrative justice do not apply to the applicant. She ought to have used the remedies provided for under the Administrative Justice Act to enforce her rights to just administrative conduct.”

It was the applicant's allegation that his right to administrative justice, as enshrined in section 68(1) of the Constitution, was violated. The applicant based the allegation on the court a quo's finding that he ought to have cross-examined witnesses who gave evidence against him at the disciplinary hearing. In this regard, the court a quo…, said:

“We note, in particular, that the appellant declined to cross-examine the witnesses who gave evidence against him, which linked him to the alleged theft. In our view, the evidence of the witnesses in question remained uncontroverted.”

The applicant averred that the court a quo took a rigid approach and it ought to have held that tribunal procedures should adopt an inquisitorial approach as opposed to adversarial ones. This argument must fail for two reasons;

(i) Firstly, the applicant was the driver of his own case before the court a quo and other previous tribunals. As such, he had a positive duty to prosecute his case to the maximum of his ability. His failure to cross-examine witnesses had legal consequences - which consequences were recognised by the court a quo.

(ii) Secondly, and most importantly, the right to administrative justice, as enshrined in section 68(1) of the Constitution, does not cover judicial decisions.

Section 68 of the Constitution is given effect by the Administrative Justice Act [Chapter 10:28], section 2 of which defines 'administrative action' and 'administrative authority'. Administrative action is taken to mean “any action taken or decision made by an administrative authority and the words 'act', 'acting' and 'actions' shall be construed and applied accordingly”. An administrative authority is defined as follows:

“'administrative authority' means any person who is -

(a) An officer, employee, member, committee, council, or board of the State or a local authority or parastatal; or

(b) A committee, or board appointed by or in terms of any enactment; or

(c) A Minister or Deputy Minister of the State; or

(d) Any other person or body authorised by any enactment to exercise or perform any administrative power or duty;

and who has the lawful authority to carry out the administrative action concerned.”

A proper reading of these provisions shows that courts of law do not fall under the category of administrative authorities. Neither do their decisions constitute administrative actions. The reliance by the applicant on this section is misplaced, and no constitutional question relating to the violation of section 68(1) of the Constitution could have arisen in the court a quo on the facts before it.

In respect of section 69(1) of the Constitution, the applicant alleged that his right to a fair hearing was violated, in that the court a quo made findings that were contrary to the presented evidence. In fact, the applicant, in his founding affidavit, made allegations of bias against the court a quo. However, it ought to be noted that these allegations are not substantiated by any evidence. It is a basic principle of procedural and evidential law that the party who makes allegations against another bears the burden of proving the allegations. The absence of evidence to substantiate the allegation of bias does not take the allegation beyond the making of it.

The question of what legal effect flowed from the fact of the failure by the applicant to put questions to witnesses who gave evidence against him in the disciplinary proceedings was not a constitutional matter.

Lastly, the applicant took issue with the fact that he was convicted of theft by the first respondent's disciplinary committee when he had been acquitted of the same charge by the Magistrate's Court. It was averred that the current law allows the decision of a Magistrate's Court to be rendered useless by a “mere disciplinary committee”. The contention was that there was a gap in the law which called for “substantial alteration of existing law”.

The applicant failed to demonstrate the exact constitutional provision that is offended by the instigation of disciplinary proceedings after an accused person has been acquitted of the same charge by a Magistrate's Court. In the founding affidavit, the applicant acknowledged that disciplinary proceedings can be conducted even after a person has been acquitted of a charge in a criminal trial. At law, an employer can institute disciplinary proceedings against an employee who has been acquitted of an alleged offence in criminal proceedings.

It is trite that the burden of proof in criminal proceedings is proof beyond reasonable doubt, whilst, in civil proceedings, it is a balance of probabilities. The differentiation of civil from criminal proceedings means that they are mutually exclusive. They are independent of each other.

A reading of section 162 of the Constitution, on the alleged violation of which the applicant sought to found the implied obligation on an employer not to institute disciplinary proceedings against an employee in respect of conduct which formed the particulars of a charge of which he or she has been acquitted in criminal proceedings, shows that the section does not grant a fundamental right to a person. It is not part of Chapter 4 of the Constitution, which relates to the Declaration of Rights. The provision relates to the judicial authority vested in the numerous courts identified by the Constitution. No constitutional issues could have arisen from the provision, as it makes a simple declaration of the fact that judicial authority derives from the people of Zimbabwe and is vested in the courts comprising those listed.

From a reading of the applicant's papers, it appears that he is dissatisfied with the findings of the court a quo pertaining to his dismissal from the first respondent's employ. Although the applicant stated, in his founding affidavit, that he is not appealing against the judgment of the court a quo, his papers suggest otherwise.

In Lytton Investments (Pvt) Ltd v Standard Chartered Bank Zimbabwe Ltd and Anor CC11-18, the Constitutional Court had the following to say…,:

“A principle has developed out of the consideration of applications seeking to attack final decisions of the Supreme Court on the ground that they violate the right to equal protection of the law. The applications have invariably been dismissed on the ground that they are appeals disguised as applications for constitutional review. In that way, the integrity of the jurisdiction of the Court, on constitutional matters, and that of the Supreme Court, on non-constitutional matters, is preserved.”

See also Prosecutor General, Zimbabwe v Telecel Zimbabwe (Pvt) Ltd 2015 (2) ZLR 422 (CC).

The gravamen of the applicant's attack on the court a quo's decision evinces a classic dissatisfaction with the findings of the court and nothing more. The result is that no constitutional issues arise by virtue of the alleged infringements of the applicant's constitutional rights. The remarks in Chiite and Ors v The Trustees of the Leonard Cheshire Homes Zimbabwe Central Trust CC10-17 are apt. The Constitutional Court held….,:

“What the Court has before it are disgruntled litigants who have attempted to try and obtain redress under the guise of an appeal on a constitutional matter. Their criticism of the judgment of the Supreme Court, set out in what purports to be grounds of appeal, is no more than a raging discontent over the factual findings of the Supreme Court. The grievances of the losers in the Supreme Court have all the hallmarks of a mere dissatisfaction with the factual findings by that Court. See De Lacy and Anor v South African Post Office 2011(a) BCLR 905 (CC) paras 28 and 57.”

That the applicant is merely dissatisfied with the decision of the court a quo on non constitutional issues is further apparent from the relief that he intends to seek in the substantive application. The relief reads as follows:

“WHEREUPON after reading documents filed of record and/or hearing parties:

IT IS DECLARED THAT:

1. Appeals Committee hearing on same merits dismissed by Magistrate's Court infringed on section 162 [Judicial Authority] of Constitution of Zimbabwe.

2. Composition of Appeals Committee infringes on section 65 of Constitution of Zimbabwe.

3. Supreme Court hearing SC6/17 by GWAUNZA JA & Labour Court hearing LC/JDT/MT/49/14 deprived applicant on (sic) constitutional right to access to court.

IT IS ORDERED THAT:

1. Supreme Court order SC 6/17 by GWAUNZA JA & Labour Court hearing LC/JDT/MT/49/14 be and are hereby set aside and replaced with an order directing the first respondent to reinstate applicant to original position without loss of benefits or damages in lieu of reinstatement from date of this order.

2. First respondent to pay the costs.”…,.

Essentially, what the applicant intends to seek in the substantive application is reinstatement into the first respondent's employ, or, alternatively, damages in lieu thereof. Such relief is non-constitutional. It substantiates the fact that the applicant is aggrieved by the court a quo's findings on non-constitutional issues which fell into the realm of Labour Law. The resolution of the labour dispute did not involve the interpretation, protection or enforcement of the Constitution.

Absent a constitutional issue that was raised before and determined by the court a quo, the applicant cannot successfully approach the Constitutional Court for an order for leave for direct access. The institution of an application for an order for leave for direct access to the Constitutional Court pre-supposes that there is a constitutional matter over which the Constitutional Court has concurrent jurisdiction with a lower court. The purpose of the application would be to show that it is in the interests of justice that the constitutional matter concerned be heard and determined by the Constitutional Court directly as the court of first and final instance.

See Lytton Investments (Pvt) Ltd v Standard Chartered Bank Zimbabwe Ltd and Anor CC11-18.

Having found that no constitutional issue was placed before the court a quo, it follows that its decision was not on a constitutional matter. This means that the decision is final and cannot be appealed against. As already found above, the applicant seeks to clandestinely appeal against the judgment of the court a quo on non-constitutional matters. He cannot do so.

In this regard, section 169(1) of the Constitution becomes paramount. The provision gives constitutional recognition to the principle of finality in litigation in non-constitutional matters. It states as follows:

“169 Jurisdiction of Supreme Court

(1) The Supreme Court is the final court of appeal for Zimbabwe except in matters over which the Constitutional Court has jurisdiction.”

The provision was interpreted as follows in Lytton Investments (Pvt) Ltd v Standard Chartered Bank Zimbabwe Ltd and Anor CC11-18 …,:

“A decision of the Supreme Court on any non-constitutional matter in an appeal is final and binding on the parties and all courts except the Supreme Court itself. No court has power to alter the decision of the Supreme Court on a non-constitutional matter. Only the Supreme Court can depart from or overrule its previous decision, ruling or opinion on a non-constitutional matter. The onus is on the applicant to allege and prove that the decision in question is not a decision on the non-constitutional matter.”

In Rushesha and Ors v Dera and Ors CC24-17, GWAUNZA JCC…, commented on the scope of section 169(1) of the Constitution and…, said:

“The import of this provision needs no elaboration. Only where the Supreme Court determines a constitutional issue may one appeal to this Court for a final determination. Because the Supreme Court in this matter did not determine any constitutional issue, the decision it rendered was final and not appealable. Since courts are not expected to, and invariably do not, render judgments that cannot be put into effect - which are in other words a brutum fulmen - a purported appeal against the effect of a judgment of the Supreme Court, on a non-constitutional issue, is, in reality, an appeal envisaged in section 169(1). That is, a final judgment that is not appealable no matter how well disguised any such purported appeal may be. It does not escape notice that in seeking to have the Supreme Court judgment overturned under the guise of an appeal to this Court, the appellants are, in effect, attempting to revive, and reinstate, the judgment of the High Court, which was in their favour. What is sought would be both manifestly irregular and bad at law.”

Section 26(1) of the Supreme Court Act [Chapter 7:13] re-affirms the above position. It provides:

“26 Finality of decisions of Supreme Court

(1) There shall be no appeal from any judgment or order of the Supreme Court.”

Section 169(1) of the Constitution and section 26(1) of the Supreme Court Act must be read together with section 167(1) of the Constitution, which provides as follows:

“167 Jurisdiction of Constitutional Court

(1) The Constitutional Court -

(a) Is the highest court in all constitutional matters and its decisions on those matters bind all other courts;

(b) Decides only constitutional matters and issues connected with decisions on constitutional matters, in particular, references and applications under section 131(8)(b) and paragraph 9(2) of the Fifth Schedule; and

(c) Makes the final decision whether a matter is a constitutional matter or whether an issue is connected with a decision on a constitutional matter.”…,.

The Constitutional Court is a specialised court endowed with the purposefully narrow jurisdiction to determine constitutional matters only. The language of section 167(1)(b) of the Constitution is clear enough in this respect. The Constitutional Court is established in terms of section 166 of the Constitution and section 167 provides for the jurisdiction of the Court.

In Lytton Investments (Pvt) Ltd v Standard Chartered Bank Zimbabwe Ltd and Anor CC11-18…, the Constitutional Court emphasised the special jurisdiction of the Court in the following terms:

“The Court is a specialised institution, specifically constituted as a Constitutional Court with the narrow jurisdiction of hearing and determining constitutional matters only. It is the supreme guardian of the Constitution and uses the text of the Constitution as its yardstick to assure its true narrative force. It uses constitutional review predominantly, albeit not exclusively, in the exercise of its jurisdiction.”

Where no constitutional issues are pertinent, the jurisdiction of the Constitutional Court, under section 167 of the Constitution, is not triggered.

In Brink v Kitshoff NO 1996 (4) SA 197 (CC), the South African Constitutional Court had the following to say…,:

“[28] The jurisdiction of this Court is limited to the interpretation, protection and enforcement of the provisions of the Constitution (in terms of section 98(2) of the Constitution) and any other matter over which it is expressly given jurisdiction. Neither the question of when an estate becomes entitled to the proceeds of a life insurance policy in terms of section 44, nor the question of when a concursus creditorum will be initiated, are constitutional questions. This Court accordingly does not have jurisdiction over such matters.”

The Constitutional Court is a specialist court and not a court of general jurisdiction. The principle of constitutional supremacy ensures that the jurisdiction of the Court, as defined in section 167 of the Constitution, is narrowly defined and given constitutional protection. In addition, the very definition of a constitutional matter itself, in terms of section 332 of the Constitution, presupposes that not every matter is a constitutional matter. If the resolution of a matter does not require the protection, interpretation or enforcement of the Constitution, it is not a constitutional matter and the Constitutional Court cannot assume jurisdiction over it.

Jurisdiction is the power or competence of a court to adjudicate on, determine, and dispose of a matter.

In this regard, the Constitutional Court is a creature of the Constitution. The principle of constitutional supremacy, as enshrined in section 2 of the Constitution, guarantees that the Constitutional Court only exercises jurisdiction over matters which are specifically set out in terms of section 167, as read with section 332, of the Constitution. The principle also ensures that the jurisdiction of the Court, as the highest court on constitutional matters and connected issues, cannot be ousted by legislation.

The Constitutional Court's power to adjudicate on constitutional matters ought to be construed as a means by which life can be given to the objectives set out in section 3 of the Constitution. The Court, as the highest and most authoritative tribunal in constitutional matters, is tasked with the responsibility of safeguarding the values and objectives of the Constitution. It is charged with the duty of ensuring that these objectives are realised and given effect to.

Thus, it is imperative that the Court is not unduly saddled with cases that have no bearing on the interpretation, enforcement or protection of the Constitution. It is incumbent upon the Constitutional Court to guard its jurisdiction jealously and eliminate the abuse of its powers. The integrity of the Constitutional Court is of utmost importance and it ought to be protected.

The deliberately narrow jurisdiction of the Constitutional Court is meant to shield it from abuse and ensure that it only adjudicates upon that which it is constitutionally mandated to adjudicate on.

From the foregoing, it is apparent that no constitutional issue ever arose before the court a quo. No constitutional question was clearly and concisely raised before the court a quo and neither did it dispose of any constitutional issue. The result is that the Constitutional Court cannot assume jurisdiction, as a court of first and final instance, over a matter which does not raise constitutional issues. It is not in the interests of justice that the application for direct access be granted.

DISPOSITION

It is ordered as follows:

1. The application be and is hereby dismissed.

2. The applicant is to pay the first and the third respondents' costs.