Cause of Action and Draft Orders re: Approach, Timing, Framing and Legal Basis for Invoking Jurisdiction of the Court

CC03-22 : DIANA KAWENDA vs MINISTER OF JUSTICE, LEGAL & PARLIAMENTARY AFFAIRS and MINISTER OF HEALTH AND CHILD CARE and THE ATTORNEY-GENERAL OF ZIMBABWE
Ruled By: MAKARAU JCC, HLATSHWAYO JCC and PATEL JCC

On 20 January 2020, the High Court dismissed with costs, an application to that court by the appellant and another who is not before us, challenging the constitutional validity of the law that governs the age at which children can consent to sexual activities.This is an appeal against that order.BackgroundThe ...

Background

The appellant and another champion of women and children's causes and rights approached the High Court seeking, in the public interest, an order the main thrust of which was to declare the criminal law which governs the age of consent to sexual activities unconstitutional.

The second applicant a quo did not apply for condonation for the late filing of this appeal, which the appellant successfully did. Whilst the second applicant a quo is not before us, where relevant and unavoidable, reference shall be made to the averments that she made.

Further and for convenience, where reference is made to the proceedings a quo, the parties thereto shall be referred to as “the applicants” and “the respondents” respectively.

The locus standi of the applicants to bring the application a quo was not in dispute.

It was accepted by all the respondents, and the court a quo, that, the applicants could bring, in the public interest, a challenge to the constitutionality of sections of Part III of Chapter V of the Criminal Law (Codification and Reform) Act [Chapter 9:23] (“the Code”).

Creating criminal offences punishable at law, the Criminal Law (Codification and Reform) Act, in its language, prohibits extra-marital sexual intercourse and the performing of indecent acts with a young person, who it defines, in section 61(1), as a boy or girl under the age of sixteen years.

This, of course, must be read in the context of the decision of this Court in the matter of Mudzuru and Another v Minister of Justice, Legal and Parliamentary Affairs 2016 (2) ZLR 45 (CC) in which child marriages were outlawed.

I return to this point in detail later.

The Criminal Law (Codification and Reform) Act also penalizes owners or occupiers of property who knowingly permit another person or persons to commit the offences on their property or detain a young person with the intention that such offences be committed against the young person. The Criminal Law (Codification and Reform) Act further prohibits the procuring of young persons for the purposes of prostitution in addition to prohibiting property owners from allowing young persons to remain on one's property for the purposes of sexual activities.

The above constitutes the content of the impugned law.

Whilst bringing the application a quo in the public interest and therefore not alleging that the impugned law infringes their personal rights, both applicants, now adults, narrated, in their founding affidavits, their personal experiences which they argued could have been avoided had the protection afforded to children under sixteen years of age been extended to all children. They were both child-brides and the second applicant was a mother of two by the age of nineteen.

Having noted the disparity between the definition of a “young person” in the impugned law and of a “child” in the Constitution, the applicants approached the court a quo seeking an order in the following terms –

“It is declared that –

1. The definition of 'young person' and reference to 'below the age of sixteen years' in the below sections of the Criminal Code [Chapter 9:23] are unconstitutional to the extent that they do not include all children under the age of 18 in violation of section 81 of the Constitution.

2. The sections of the Criminal Code [Chapter 9:23] which fail to protect all children under the age of 18, are inconsistent with section 81 of the Constitution and are thus unconstitutional to the extent of the inconsistency.

3. The current age of sexual consent, set at 16 by section 70 of the Criminal Code [Chapter 9:23] is inconsistent with section 81(1)(e) of the Constitution of Zimbabwe.

4. The current age of consent, set at 16 years old, violates the rights and protection for girls including human dignity under section 51, equality and non-discrimination under section 53, right to education under section 81(1)(c), healthcare under section 81(1)(f) and best interests under section 81(2) of the Constitution of Zimbabwe.

5. The respondents pay the costs of suit.”

In seeking the above order, the applicants relied on the findings of this Court in Mudzuru and Another v Minister of Justice, Legal and Parliamentary Affairs 2016 (2) ZLR 45 (CC) on the harmful effects of marriage on children - especially on girls. They incorporated into their application these findings and the scientific evidence referred to in that judgment.

The application a quo was opposed.

In addition to placing his views before the court in an opposing affidavit, the second respondent was content to abide by the decision of the court.

The parties made lengthy and detailed arguments a quo. It is not necessary that I burden this judgment with these.

Despite the lengthy and detailed arguments that the parties advanced a quo, the sole issue that fell for determination before that court was whether the impugned law is unconstitutional on any one or more of the grounds advanced by the applicants.

With respect, the issue was not, as consumed by the court a quo, a determination of the age at which children should have their first sexual experiences.

The Decision a quo

As indicated above, the court a quo dismissed the application with costs. In dismissing the application, the court made a number of findings. It is necessary that I set out some of these in detail.

Right from the outset, the court a quo set out –

“to examine trends (world-wide) on age of sexual consent, age of marriage, child development, and the effect of raising to 18 years the age on sexual consent on child protection and whether section 70 (of the Code) and related sections are unconstitutional.”

Whilst there was nothing intrinsically wrong in setting the inquiry this wide, the court a quo thereafter disproportionately devoted its time and industry to the introductory issues at the expense of the primary issue that was before it.

It thereafter largely focused on whether the age of consent in Zimbabwe should be raised from sixteen to eighteen; in itself an important debate, but, one that was not before it.

Scant regard it paid to the question whether or not the impugned law is inconsistent with the Constitution.

For instance, citing a report by UNICEF, UNESCO, UNWOMEN, UNPFA and UNDP 2019, on Adolescent Consent to Marriages and Sexual Activity and Access to Sexual Reproductive Health Services in Light of the Zimbabwe Marriages Bill 2019, the court found, that, it is a notorious fact that children in Zimbabwe are indulging in sexual activities from an early age. Forty per cent of girls and twenty-four percent of boys are sexually active before they reach the age of eighteen.

In view of the issue that was before the court, the finding by the court, in this regard, did not add any colour or flavour to the constitutional question that was before it.

Further, this finding was made on evidence procured through the court's own industry. The various United Nations Agencies reports that the court relied upon in making this finding were not tendered as evidence by any of the parties.

I return to this point later in the judgment.

It appears, that, the court a quo made the finding that children are engaging in sexual activities from early ages to buttress its next finding, that, although children need to be protected from sexual abuse and exploitation, it needs to be equally acknowledged that adolescents naturally start exploring their sexuality and engaging in consensual sexual activity with their peers.

The court then accepted, wholesale, the arguments of the first and third respondents, that, raising the age of consent from sixteen to eighteen does not per se prevent adolescents from engaging in sexual activity with their peers but leads to the criminalization of adolescents as sex offenders. This, in turn, creates barriers for the adolescents against accessing sexual and reproductive health care services.

It was thus the conclusion of the court a quo, that, laws, on their own, cannot prevent children from engaging in sexual activities, and, in particular, that raising the age of consent from sixteen to eighteen cannot per se prevent children from having sexual intercourse.

Quite clearly, the court a quo was concerned with the need to allow children, particularly adolescents, “legal” space within which to explore their sexuality with their peers.

With respect, this was not the constitutional issue that the applicants had raised.

As indicated above, the application before the court did not require the court to make a finding on the appropriate age at which children should be allowed to have their first sexual experiences.

The application challenged the constitutional validity of the law that seeks to protect children from sexual exploitation....,.

In finding that the raising of the age of consent to afford protection to all children will create barriers for the adolescents in accessing sexual and reproductive health services, the court a quo was persuaded by the observations by the UN Agencies reports, that, setting the age of sexual consent for children higher than the impugned law allows would result in caregivers and institutions being dis-empowered from responding to adolescents sexual and reproductive health issues because they would fear being in conflict with the law that criminalizes such behaviour.

It accepted this observation as the basis of its decision....,.

The need to enable and allow adolescents to make choices as to when and with whom to have sexual relations dominated the reasoning of the court a quo to the exclusion of the real issue.

As indicated above, and respectfully so, the court a quo set its inquiry too widely, and, in the process, its compass would, most of the time, veer from directing it to the real issue that was before it. Because it had set out to examine worldwide trends in settling the age of marriage, an issue that was clearly not before it, the court a quo saw the applicants case as seeking to conflate the age of marriage with the age of consent to sexual activities and held thus –

“…, efforts to conflate the age of marriage with the age of sexual consent can be particularly harmful for girls as they can deny them the right to make decisions about whether, when, and with whom to have sex. They can also stigmatize as criminals individuals who have sex before marriage and increase barriers to accessing sexual and reproductive health services.”

The court a quo however accepted that “there should be penal provisions in our statutes to deal with adults who have consensual sexual activity with children aged between 16 and 18 years.”

This finding by the court a quo was apparently made oblivious to the fact that this, in essence, was at the heart of the application which the court went on to dismiss.

In answer to the question whether the impugned law was in violation of the Constitution or ultra vires the Constitution, as the court a quo put it, the court referred to the many findings it had made and which I have detailed above.

It specifically found, that, the Criminal Law (Codification and Reform) Act (the Code) does not in any way violate children's rights to dignity and that the relevant law was meant to fulfil children's rights to health care as guaranteed in the Constitution.

As its ratio decidendi perhaps, and in dismissing the application, the court a quo expressed itself thus –

“In this case, the applicants are targeting the provisions of the Criminal Law (Codification and Reform) Act as being unconstitutional in its interpretation of child or young person. They forget that there are a plethora of other Acts that define child that is a boy/girl and young person in the same manner that is not consistent with the definition given in the Constitution. Even if this court is to declare the definition in section 61 or 70 of the Code unconstitutional, what is going to happen to the definitions in other statutes?…,.

Therefore, the mischief which the applicants want to be corrected cannot be corrected by merely declaring sections 61 and 70 of the Code as unconstitutional. It will only amount to a patching exercise. A wholesome approach is required. The solution lies in harmonizing the current statutes with the Constitution. Even after harmonization, it is my considered view, that, this will not per se protect the adolescents.

What is required is a strong multi-sectorial approach in educating the girl or boy child of the evils of indulging in early sexual activities without the necessary precaution. For the above reasons I will dismiss the application with costs.”

It thus found, that, the impugned law was not unconstitutional because it was not the only law that violated the Constitution. It also found, that, the impugned law was not unconstitutional as declaring it so would not, in itself, afford effective protection to children against the risks of indulging early in sexual activities.

Being seized with a constitutional issue, the court a quo did not, at any point in its judgment, attempt to interpret the relevant constitutional provisions and establish what the law on the rights of children provides....,.

The court a quo did not seek to interpret section 81(1) of the Constitution to give it its true meaning before upholding the constitutional validity of the impugned law.

Thus, there was no debate in the judgment of the content of the fundamental right or freedom that was allegedly infringed and the extent of the infringement, if any.

How the court, in the circumstances, proceeded to uphold the constitutional validity of the impugned law without first interpreting the Constitution becomes incomprehensible.

As this court stated in Democratic Assembly for Restoration and Empowerment & Ors v Suanyama CC18-18:

“The Constitution is properly interpreted first to get its true meaning. Only thereafter is the challenged legislation held against the properly constructed provision of the Constitution to test its validity.”

Having erroneously overlooked the supremacy of the Constitution and the need to interpret it first in the matter that was before it, the court a quo, somewhat convolutedly, reasoned in the concluding paragraph of its judgment –

“…, the mischief which the applicants want to be corrected cannot be corrected by merely declaring sections 61 and 70 of the Code as unconstitutional.”

It erroneously gave supremacy to the provisions of the Code and the object and subject matter of the impugned law.

The court thus shied away from its primary role, of declaring itself on the constitutionality or otherwise of the impugned law. This was the sole issue that was squarely before it, and, by deliberately avoiding it, the court a quo fell into a grave error. It ended up on a frolic of its own, deciding on whether or not laws alone can stop adolescents from engaging in sexual activities.

Thereafter, the court sought to justify the continued sufferance of the impugned law on the basis that the solution to the many issues raised in the application was to be found possibly in harmonizing with the Constitution all the current statutes that defined a child as a boy or girl under the age of sixteen.

In holding that the impugned law was justifiable, the court a quo did not go anywhere near invoking the provisions of section 86(2) of the Constitution or the common law principles enunciated in the long list of cases that I have referred to above.

Section 86(2) of the Constitution, which embodies the common law, provides for the limitation of fundamental rights in terms of laws of general application and to the extent that the limitation is fair, reasonable, and necessary in a democratic society.

In the absence of a prior finding that the impugned law did in fact infringe children's fundamental rights, as alleged by the applicants, a justification of the impugned law, on any basis, was idle.

Curiously, the court a quo justified the current law on the basis that it was similar to other laws that also contradicted the Constitution and held that a wholesale alignment of all such laws was the answer to the mischief that the applicants sought to cure.

The court a quo even doubted the efficacy of the constitutional alignment exercise as, in its view, this would not stop adolescents from engaging in sexual conduct.

On the basis of the above, the decision a quo cannot stand. I accordingly set it aside.

Having set aside the decision of the court a quo, it remains for me to determine the matter in accordance with the settled approach...,.

HMA21-19 : MR MBOZVI vs CHENGETAI SIDHUNA
Ruled By: MAWADZE J and MAFUSIRE J

The dispute between the parties centred on a property described as Stand 238 Phase 1 Checheche (“the property”). It is one of those council-owned township properties that local authorities sell on a rent-to-buy basis. It is under the Chipinge Rural District Council.

In the court a quo, the respondent (“Chengetai”) sued the appellant (“Mbozvi”) for eviction and holding over damages. The court granted the orders.

Mbozvi appealed. We heard argument on 27 March 2019 and reserved judgment.

This now is the appeal judgment.

In her claim, Chengetai alleged that Mbozvi “…, unilaterally entered…,” her property in January 2017 without her authority. She alleged she had acquired the property in November 2007; that she had partially developed it to window level but that the defendant was staying there illegally and without paying rentals.

The claim was poorly presented. The drafting was sloppy. For example, there was no reason why Mbozvi's name was not cited in full when all his particulars were available.

But, that is besides the point.

In his defence, Mbozvi took an objection in limine. He said Chengetai had no locus standi in judicio to evict him or to seek holding over damages because the property was his.

But, it seems this objection went nowhere. It seemed abandoned or forgotten somewhere along the way. It was not even on the list of issues at the pre-trial conference.

The objection was ill-conceived anyway, especially if regard is had to the nature of the claim and the nature of the defence.

On the merits, Mbozvi denied that he had “…, unilaterally entered…,” the property. He alleged he had lawfully acquired it from one Tafirenyika Maturo (“Tafirenyika”), to whom Chengetai had transferred her right, title, and interest.

In its judgment, the court a quo ruled, that, there had never been a transfer from Chengetai to Tafirenyika but that what had happened had all been a fraudulent scheme to strip Chengetai of her ownership. As such, since no thief or fraudster can in law transfer rights in a thing, Mbozvi's claim to the property was held to be defective. The court also ruled that Chengetai was entitled to holding over damages.

The case went like this.

Chengetai opened and shut her case with only the evidence from herself. She said the property was allocated to her by the Chipinge Rural District Council in 2007. She produced the offer letter from Council dated 29 November 2007. All this was common cause.

But, there was a subtle detail on the letter that was at war with her case.

The letter had two parallel lines drawn in long hand running diagonally across it and between which the words “Stand No.238 PHASE 1” were inscribed, also in long hand. Mbozvi said that was the evidence of the cession of the property from Chengetai, or of the original allocation to her having been cancelled. She denied it. But, she proffered no other explanation for that endorsement.

In a boxing match, that would be a point for Mbozvi.

Chengetai said she had submitted some developmental plans to the Council for the construction of a 3-roomed cottage on the property. As proof, she produced some drawings endorsed with a date stamp from the Chipinge Rural District Council in 2012.

But, again, a subtle detail on the drawings contradicted the flow of her evidence.

Mbozvi said the plans were for a different property, not Stand 238. Indeed, the drawings cited a different property. They were titled “PROPOSED COTTAGE ON STAND No.120 INFILL CHECHECHE GROWTH POINT”. Chengetai said the reference to Stand 120 was a mistake which the Council had promised to rectify but had never done.

But, again, in a boxing match, this would be another point for Mbozvi.

Beyond this evidence and these two documents, Chengetai's evidence proved nothing further. Everything else she said was a bare denial of the cogent and overwhelming evidence by Mbozvi through himself and his very relevant witnesses, namely, Tafirenyika, his wife Leona or Loren Chiona (“Leona”) and Mbozvi's friend, Collen Gapara (“Collen”) who had facilitated the sale deal between Tafirenyika and Mbozvi.

Mbozvi's case was this.

He heard the property was on sale. He went to inspect it. He liked it. Together with a sister and his wife, they went to inspect Council records. These reflected Tafirenyika as the “owner”. Tafirenyika worked and stayed in South Africa. Mbozvi called him. They agreed on a purchase price of fifty thousand Rand (R50,000).

Tafirenyika referred them to his wife, Leona, whom he said had all the authority to represent him.

The sale deal was concluded. The purchase price was paid. They went to Council offices for the usual cession. This was done.

He took occupation in 2015 and started building the partially constructed house. He completed the structure; tiled the floors; installed water and electricity; planted some trees and flowers around the yard; put up a security wall along the perimeter and started staying there from January 2016.

Until he received her summons, in March 2018, he had never heard of Chengetai and her claim to the property.

To all that, Chengetai denied ever selling the property to anyone.

She denied ever dealing with Tafirenyika or his wife, Leona. She was adamant none of them was known to her.

Mbozvi set to demolish her case. He called Collen.

Collen's evidence corroborated Mbozvi's in relation to the sale by Tafirenyika. One important aspect of that corroboration was that it was his advice to Mbozvi to clear the property first with the Council before committing himself to Tafirenyika. He was present at the Council offices when the records were pulled out and inspected. They all reflected Tafirenyika as the “owner”. Another important aspect of the corroboration was that when Mbozvi took occupation there was a partially built structure which Mbozvi completed in 2016.

Even the court a quo accepted Collen gave his evidence very well and that he remained unshaken under cross-examination.

But, the sale and transfer from Tafirenyika to Mbozvi was less contentious. Fireworks were in respect of the sale and transfer from Chengetai to Tafirenyika.

Chengetai swore she knew nothing about it or that Tafirenyika and his wife, Leona, were ever known to her.

So, Mbozvi called Leona.

She stayed at Checheche Growth Point. She said it was Chengetai herself that had come to her house, personally, on 4 February 2015, to inform her that she had sold the property to her husband, Tafirenyika. Tafirenyika had already telephoned her (Leona) about the deal. Before coming to Leona's house, Chengetai had first telephoned her for directions. The purpose of Chengetai's visit was to arrange transfer of cession at the Council offices. They agreed on a date, 6 February, i.e. two days later.

Leona's evidence, on the cession transfer at the Council's office, was quite elaborate. In brief, it was this:

She had her husband's national registration particulars. Chengetai had hers. Together, they were moving from office to office signing documents. Chengetai would sign first. She would sign in place of Tafirenyika.

After completion of the sale and transfer she and Chengetai actually became friends.

Next, Mbozvi called Tafirenyika.

His formal evidence was that he worked and lived in South Africa. He was married to Leona under customary law. They had three children together. He was the one who sold the property to Mbozvi. Everything was done through Leona, his wife, whom he had granted all the authority.

Critical aspects of Tafirenyika's evidence were these:

He met Chengetai for the first time in South Africa. He did not know her before. She had been in the company of two people, one of them Zviedzo Chipfunde (“Zviedzo”), an old school mate of his. Zviedzo was then married to Chengetai. He told him Chengetai was selling a Stand for thirty thousand Rand (R30,000). He reached an agreement with her. He paid her a deposit of twenty thousand Rand (R20,000). The balance of ten thousand Rand (R10,000) would be paid on the transfer of cession.

Tafirenyika's critical evidence continued:

Towards December, Chengetai was demanding the balance of the purchase price. He told her they needed to change ownership first. They agreed that since he was busy he would give her his wife's contact details through whom the transactions would be carried out.

Back in Zimbabwe, Chengetai did contact Leona and went to see her at home. Together, they arranged and facilitated the change of ownership. Chengetai subsequently returned to South Africa and collected the balance of R10,000 after both she and Leona had confirmed the cession at Council offices.

To all that testimony, Chengetai's position was just a bare denial.

She denied she knew Tafirenyika or his wife, Leona. She denied she had sold her property to them. She denied she had been to South Africa during the period mentioned by Tafirenyika. She denied she had received that kind of money from Tafirenyika or anyone else in connection with the property. She denied the cession at the Council offices and alleged that all the documents suggesting a cession of rights by her were forgeries or fraudulent.

Mbozvi's witnesses were forthright, straightforward, and unshaken. Cross-examination was lame.

For example, counsel for Chengetai, put it to Tafirenyika, that, Leona was a mere concubine of his since there was no registered marriage between them. He pestered Tafirenyika why he did not apply to be joined to the proceedings if ever he wanted to defend his sale of the property to Mbozvi and protect him!

This was absolutely ironic.

It was the process issued by counsel for Chengetai himself, on behalf of Chengetai, and his presentation of the case that were patently incompetent.

For example, the summons excluded very relevant parties like Tafirenyika and the Chipinge Rural District Council, the true owner of the property, and the records for which reflected Tafirenyika as the owner. Not only that, but Chengetai's case was closed with no evidence from any of the Council officials testifying on what had really transpired regarding the property and whether there had really been a fraud.

There was an aspect of Mbozvi's evidence and that of his witnesses that left Chengetai rather exposed.

They asked how on earth they could have ever guessed Chengetai's national registration particulars which were inserted on the cession documents. At first, she denied they were hers. But, she subsequently admitted them. She gave no explanation how Mbozvi and his witnesses could have got them.

Mbozvi's documentary evidence should have won him the case. In a boxing match, it would be the technical knock-out punch. It was completely in consonant with his testimony and that of his witnesses.

Firstly, he relied on Chengetai's own original offer letter from Council and highlighted the cancellation endorsed on it. Next, he discredited the drawings or building plans as belonging to a different property altogether.

The critical cession document from Chengetai to Tafirenyika was produced through Leona.

It was one of those standard cession forms used by rural district councils which are printed on council stationery. Blank spaces were completed in long hand. It had four sections: the first for completion and signing by the cedent; the second for completion and signing by the cessionary; the third for official use, and the fourth, and last, for approval by the Minister of Local Government.

Completed, the relevant portions of the cession document read as follows:

“The undersigned…,___CHENGETAI SIDHUNA___, National Reg. No: ___13–174976 A 13___ do hereby cede, assign and transfer to…,___MATORO (sic) TAFIRENYIKA___ Nat Reg No: ___13 – 200661 T 13___ All my rights and title to and interest in lease number ___238___ at ___CHECHECHE___ Business centre in Chipinge Rural District from ___6___ day of ___FEBRUARY 2015___.”

Above the word “CEDENT” was a signature, in very clear print: “C h e n g e t a i” with the letter “e” quite distinct and somewhat stylish. There were also signatures by two witnesses.

The section for the cessionary read as follows:

“I … ___MATORO (sic) TAFIRENYIKA___ Nat Reg No ___13–200661 T 13___ Address ___1107 Phase 2 CHECHECHE___ Do hereby accept transfer of the Agreement of number _____(blank)____ Business Centre in Chipinge Rural District, as from the ___6___ day of ___February 2015___”

As with the cedent, the cessionary's signature was a distinct name in print “LOREEN CHIONA”. There were also signatures by two witnesses.

The last two sections of the cession document, which were for official use and approval, were left blank.

Counsel for Chengetai latched onto this.

He said the alleged cession was incomplete and unapproved.

He said it was defective and fraudulent because Leona purported to be Tafirenyika and to sign as him. He said she had no power of attorney.

The court a quo accepted the argument. It fell into error.

There is nothing magical about a cession of rights. In Chauke & Anor v Mangena HMA09-19 in which a similar argument arose, I said there is wise Shona saying: “kupedzera miseve pamakunguwo idzo hanga dziripo!” meaning, wasting all the arrows on worthless crows when more treasured guinea fowls abound: in other words, to major in minors.

Simply put, a cession is the transfer or giving up of rights and interest by one party which the other party accepts or receives. The cession is pivoted on an agreement that is legitimate. The transferor or giver of the right is the cedent. The receiver is the cessionary.

No formalities are required for a valid cession: see R.H. CHRISTIE: Business Law in Zimbabwe, Juta & Co Ltd, 1998…,.

In Mberi v Mbewe & Anor HH420-15, after reviewing a number of cases on the point such as Gomba v Makwarimba 1992 (2) ZLR 26 (SC); Hundah v Murauro 1993 (2) ZLR 401 (SC); Pedzisa v Chikonyora 1992 (2) ZLR 445 (SC) and Magwenzi v Chamunorwa & Anor 1995 (2) ZLR 332 (S), I said, in a great number of cases of this nature, the local authority, which is the true owner of the property, is little concerned with what the tenant-to-buy does with his rights and interest in the property.

The local authority normally consents in advance of the alienation or disposal of such rights, or it subsequently ratifies. The consent can be tacit or express.

In the present case it was both.

That, when Mbozvi and his team went to inspect the Council records, before he committed himself to Tafirenyika, they found the property reflecting Tafirenyika as the owner was not challenged.

Thus, unless the Council had given tacit approval to the sale from Chengetai to Tafirenyika, there could be no explanation why the records were in Tafirenyika's name.

But, there was more.

Produced in evidence was a very detailed rent-to-buy agreement between the Chipinge Rural District Council and Tafirenyika in respect of the property. It was signed by Leona as lessee and by Chengetai as a witness.

Nothing could be better evidence of the express consent by the local authority and of the transfer of rights from Chengetai to Tafirenyika.

The court a quo said all these documents were a fraud to strip Chengetai of her ownership of the property.

It said Leona had no power of attorney to sign the documents as Tafirenyika.

It went on to quote from some authority defining a power of attorney as generally being a physical document under seal, and concluding, that, the purported power of attorney relied upon by Leona, not having been a document under a seal, all that she had done in the name of Tafirenyika had been a “farce”.

With all due respect, the court seriously misdirected itself on this aspect.

Mbozvi and his witnesses never said Leona had a power of attorney. The term 'power of attorney' was introduced into the matrix by counsel for Chengetai in cross-examination. All Mbozvi and his witnesses said was that Leona had authority from her husband to transact on his behalf, and that that authority had been given over the telephone.

Whilst a power of attorney gives authority - not all authority is given by a power of attorney.

All that the court a quo had to be satisfied with was whether Leona had her husband's authority to transact on his behalf.

These were unsophisticated people. The court had to be satisfied, by the substance of the arrangements, and not be concerned with fancy legal niceties, or with form over substance.

But, whatever might have been lacking in form was given substance by the Chipinge Rural District Council itself. It gave its badge of authority to the two cessions: the first and crucial one from Chengetai to Tafirenyika, and the second and uncontentious one from Tafirenyika to Mbozvi.

The triangle was complete.

That Council itself and the Ministry of Local Government might not have signed their sections on the cession document seemed to be mere carelessness or plain inadvertence that did not in the least detract from the fact that the parties had agreed and that the Council had granted both tacit and express approval.

Everything else was subterfuge.

Counsel for Chengetai successfully persuaded the court a quo to find meaning and substance in a letter from the Chipinge Rural District Council, written to himself by the Growth Point Manager on 10 April 2018 and which he had solicited for.

Relevant portions of that letter read as follows:

“Your letter dated 25 March, 2018 refers. Ms Chengetai's Sidhuna's letter on same subject dated 18 September, 2017 also refers.

Please note that the Stand cession process is a long and arduous process which takes place at five different levels, namely, the sub-office at Checheche, then Heads of Departments have to consent to it before submitting to ZIMRA. After ZIMRA's concurrence, the matter will finally come back to the Lands and Assets Office at the Main Office before being finally presented to the Chief Executive Officer to complete the signing of a lease agreement thereto.

As you observed, there is no complete cession yet and there is no lease agreement yet between Council and the incumbent, Tawanda Mbozvi. The forms are still at the Checheche sub-office, held back because of an incomplete process. Implicitly, the first level has therefore not yet been satisfied by the parties to warrant it to move up to the second stage where the Heads of Departments will peruse the documents before they can be passed on to ZIMRA.

The Stand is therefore not yet formally…, in the buyer's or cessionary's ownership, albeit the nominated cessionary already having been clearly cited for practical functional purposes – and this we always do as instructed and agreed between the seller and the buyer. In the case of any objection by the parties, we always delay or defer process until we are granted a green light by the parties…,.

In the matter at hand, there is agreement between the incumbent, Tawanda Mbozvi, and Tafirenyika Matoro who claims to have bought the property from Chengetai Sidhuna…,. The dispute, therefore, lies between Chengetai Sidhuna and Tafirenyika Matoro who passed ownership of Sidhuna's property to Mbozvi.

Essentially, therefore, Council fully recognises Sidhuna's objection to processes that were transacted in our offices. She is the holder of the more critical Council stand documents and her consent to the process is therefore paramount.

To that effect, Council has deferred the cession process of Stand 238, given the apparent validity of Chengetai Sidhuna's formal complaint since September 2017.

By copy of this letter, we advise the three parties on our records (being Mbozvi, Matoro and Sidhuna) to convene or otherwise resolve matters and instruct us accordingly….,.”

The letter is an example of double-speak.

But, the highlighted portions are a fabulous give-away. There is an acknowledgement of the double cession.

The cession from Chengetai to Tafirenyika was complete as signified by the lease-to-buy agreement between the Council and Tafirenyika. The cession between Tafirenyika and Mbozvi was complete as signified by, firstly, a handwritten agreement between Tafirenyika and Mbozvi, and, secondly, the cession addendum from Tafirenyika to Mbozvi, both in December 2015.

All these documents were part of the Council records.

And yet neither counsel for Chengetai, nor the court, saw it fit to have Council officials called to give evidence.

Chengetai proved no fraud or any form of unlawful misrepresentation.

On the contrary, the evidence established, that, she had sold her rights and interest in the property to Tafirenyika, who, in turn, had sold his rights and interest to Mbozvi.

The court a quo failed to appreciate that the conclusion in Council's letter above, to the effect that the rights, title, and interest in the property still lay with Chengetai, was the very aspect it was being asked to adjudicate upon.

CC05-22 : GOVATI MHORA vs EMMACULATA MHORA
Ruled By: PATEL JCC

This is a chamber application for condonation and extension of time within which to file an application for leave to note an appeal against the decision of the Supreme Court under judgment number SC89-20.The instant application was made pursuant to Rule 35 of the Constitutional Court Rules 2016.The applicant craves ...

This is a chamber application for condonation and extension of time within which to file an application for leave to note an appeal against the decision of the Supreme Court under judgment number SC89-20.

The instant application was made pursuant to Rule 35 of the Constitutional Court Rules 2016.

The applicant craves the grant of his application, with no order as to costs.

Background

The two parties involved in this matter are a formerly married couple in terms of the Marriages Act [Chapter 5:11].

Following an irretrievable breakdown in their relationship, the respondent sought a decree of divorce in the High Court. The order sought in the court a quo also regulated the distribution of their perceived matrimonial property.

During the course of those proceedings, the applicant contested the distribution of an immovable property known as House Number 114 Lomagundi Road, Harare. His chief argument was, that, there was no direct contribution towards the purchase of the property by the respondent and hence she was disentitled from any claim to the property as part of their divorce proceeds.

This proposition was countered by the respondent who insisted that she had been the primary caregiver to their family and had remitted the various monies she had earned to the applicant during the subsistence of their marriage.

The applicant's purported former second wife also testified to the same effect on behalf of the respondent. She submitted, that, the respondent had raised various amounts of income that she submitted to the applicant during their marriage.

In the event, the court a quo found in favour of the respondent and granted her a fifty percent share in the property.

Irked by the High Court's determination, the applicant launched a subsequent appeal to the Supreme Court.

From the submitted grounds of appeal, the sole issue that arose for determination was whether the court a quo had erred in awarding the respondent a fifty percent share in the contested immovable property.

It was submitted, on behalf of the applicant, that, the court a quo had adopted a narrow construction of the principle of equality as the respondent had not contributed towards the purchase of the immovable property. It was contended, that, the judgment by the court a quo upset the established jurisprudence regarding the primary considerations for equitable distribution of matrimonial property.

Per contra, the respondent submitted that the court a quo had exercised its wide discretion under section 7 of the Matrimonial Causes Act [Chapter 5:13] (“the Matrimonial Causes Act”). It was contended, that, the High Court, in arriving at its determination, was guided by the Constitution as well as established precedent.

The respondent submitted, that, taking into consideration the circumstances of the case, the court a quo's determination could not be faulted.

Once seized with the matter, the Supreme Court proceeded to first correct the order of the court a quo, that had omitted to grant a decree of divorce before distributing the parties matrimonial property.

On the merits, it re-affirmed the respondent's position, that, section 26(c) and (d) the Constitution, as well as international law, mandated a fair and equitable distribution of matrimonial property. The Supreme Court upheld the court a quo's determination on the basis, that, the court a quo had properly exercised its discretion under the Matrimonial Causes Act.

The Supreme Court also noted, that, the applicant's moral turpitude was a critical factor in the decision of the High Court. The applicant's conduct, in trying to frustrate the equitable distribution of matrimonial property, was held to justify the order granted by the High Court.

Thus, the appeal was held to be meritless and dismissed.

Thereafter, the applicant failed to note an application for leave to appeal against the Supreme Court's decision within the allotted timeframe stipulated by the Constitutional Court Rules, 2016.

Based on the foregoing, the applicant filed the instant application before this Court on 22 March 2022.

The judgment of the Supreme Court was handed down on 29 June 2020 and the Rules of this Court provide fifteen days from the date of judgment to apply for leave to note an appeal against the judgment.

The applicant was evidently barred from noting his application for leave to appeal against the Supreme Court's decision and hence he has filed the present application for condonation.

In his founding papers filed of record, the applicant averred that his application for condonation ought to be granted as the intended application for leave to note an appeal enjoyed prospects of success.

It was contended, that, the applicant enjoyed a right to petition the Constitutional Court under section 69(3) of the Constitution, and, in the present instance, such access hinged on the existence of a constitutional matter in the subordinate court. He averred, that, the Supreme Court over-extended the import of the notion of “equality” when interpreting the provisions of the Matrimonial Causes Act.

It is on the basis of the foregoing, that, the applicant submitted that he had a justiciable right to equality, under section 56 of the Constitution, that ought to be protected by this Court.

He averred, that, section 56(3) of the Constitution, in particular, prohibited every person, including judicial officers, from discriminating against litigants based on their culture.

He asserted, that, the High Court's determination was primarily influenced by his cultural practice of taking another spouse during the subsistence of his marriage to the respondent.

The applicant advanced the position, that, the Supreme Court consequently failed to protect his right to equality. This constituted a flagrant violation of his fundamental right which ought to be redressed by this judicial forum.

Regarding the extensive delay in applying for leave to note an appeal, the applicant pleaded that he had limited financial liquidity to afford legal consultation and was oblivious of the prescribed period to access this Court.

He also averred, that, the Covid-19 pandemic militated against the filing of the present application due to onerous lockdown restrictions.

The applicant conceded, that, the extent of the delay in filing the application was inordinate but countered this concession by reasoning that, at any rate, the respondent was not prejudiced by the delay due to the peculiar circumstances of the matter.

The application was strenuously opposed by the respondent.

She averred, that, the Supreme Court was not seized with a constitutional matter and did not determine any constitutional issues in rendering its verdict. The respondent submitted, that, the draft grounds of appeal filed by the applicant related to general points of law.

It was contended, that, the judgement of the Supreme Court did not stray from the established legal precepts governing the distribution of matrimonial property in determining the rights of the parties.

The application was deemed to be an abuse of court process due to the obvious absence of any constitutional issue in the Supreme Court's judgment.

Submissions by Counsel

Counsel for the applicant, conceded that there was an extensive delay in filing the present application and that such delay was inordinate. She countered her concession by arguing, that, the applicant had been pondering his available remedies due to the complexity of the matter. It was submitted, that, the applicant sought legal advice from counsel, a process that extended the delay in filing the present application.

When it was pointed out that the founding affidavit on record contradicted her submissions, counsel admitted that the applicant had not been candid with the Court.

She then submitted, that, the applicant's precarious financial position had prevented him from engaging legal counsel timeously.

Upon further inquisition by the Court, it was conceded that the applicant's explanation for the delay was unreasonable.

Addressing the Court on the balance of convenience between the parties, counsel for the applicant submitted, that, the respondent would not suffer any financial prejudice if leave to appeal were to be granted.

She insisted, that, the filing of the matter was not predicated on the election of the respondent to exercise her right to liquidate her fifty percent holding in the disputed immovable property. It was advanced that other measures could be employed to alleviate any possible prejudice suffered by the respondent as a result of the petition to this Court.

To buttress her submissions, counsel for the applicant submitted, that, the applicant would provide for the respondent's financial needs whilst this Court dealt with the substance of the parties dispute.

As regards the existence of a constitutional matter, counsel for the applicant submitted, that, the Supreme Court amended the law by awarding the respondent a fifty percent share in the property.

When pressed on the exact constitutional issue determined a quo, counsel conceded that the Supreme Court did not explicitly deal with any constitutional matter. Rather, it was the import of its determination that raised a constitutional issue.

She submitted, that, the court a quo legislated over and above what was provided for in the Matrimonial Causes Act.

In essence, it was argued that the Supreme Court failed to properly apply the principles set out in the Matrimonial Causes Act.

Counsel for the applicant submitted, that, the applicant was punished for conducting his marital affairs in a polygamous manner. She indicated that the judgment reprimanded the applicant for indulging in a potentially polygamous marriage during his union with the respondent.

In any event, counsel for the applicant was unable to pinpoint specific portions of the Supreme Court's judgment that admonished the applicant's polygamous conduct.

In a bid to lend credence to her submission on this aspect, she argued that the issue was addressed in the proceedings before the High Court.

However, the High Court judgment was not made part of the record before this Court.

Nonetheless, counsel for the applicant persisted with her argument, that, the Supreme Court discriminated against the applicant on the grounds of custom and culture and that this raised a constitutional matter.

Per contra, counsel for the respondent submitted, that, the applicant had conceded that the delay in filing the instant application was inordinate and urged the Court to disregard the reasons proffered in explaining the delay.

She referred to correspondence on record between the parties that highlighted their concurrence in implementing the order of the High Court that had been upheld on appeal. It was submitted, that, the applicant initially did not highlight any dissatisfaction or intent to appeal against the Supreme Court's determination.

Thus, counsel for the respondent argued, that, the present proceedings were only prompted by the respondent's election to sell and liquidate her fifty percent share in the disputed property.

As regards the balance of convenience, counsel for the respondent highlighted that the respondent was advanced in age, well beyond 65, and that the protracted legal dispute threatened her already precarious financial position.

She submitted that her client needed the judgment of the High Court to be executed so that she could access the financial proceeds from the sale of the immovable property.

Counsel for the respondent also noted that the applicant had not contested the respondent's submissions through an answering affidavit and that therefore her averments were to be deemed uncontested.

Counsel for the respondent vehemently rebutted the notion that the Supreme Court dealt with a constitutional question in its judgment.

She submitted, that, reference was made to section 26 of the Constitution in its judgment to highlight that the Supreme Court was alive to the application of the principle of equality in determining the rights of the parties in terms of the Matrimonial Causes Act.

It was contended, at any rate, that, the Supreme Court's application of the aforementioned section 26 of the Constitution was not an intended ground of appeal as formulated in the draft notice of appeal. She argued, that, the applicant's objection was against the application of the Matrimonial Causes Act. Thus, the prospective appeal was doomed to fail on the grounds advanced by the applicant.

It was submitted that this Court could not exercise its discretion in a non-constitutional matter.

Counsel for the respondent concluded, that, the application amounted to an abuse of process due to the absence of any prospects of success....,.

Existence of a Constitutional Matter

The Constitutional Court is a specialised court whose jurisdiction is limited to strictly constitutional matters, as outlined in section 167(1)(b) of the Constitution.

This emphasis, on the existence of a constitutional question, is reinforced in the rules that govern access to this Court. The relevant rules in this regard are Rule 35, which governs applications for condonation and extension of time, and Rule 32 which deals with the substance of the prospective application for leave to note an appeal should the Court accede to the request for condonation.

Rule 32(2) of the Constitutional Court Rules provides the following on the right of appeal to this Court:

“(2) A litigant who is aggrieved by the decision of a subordinate court on a constitutional matter only, and wishes to appeal against it to the Court, shall, within fifteen days of the decision, file with the Registrar an application for leave to appeal and shall serve a copy of the application on the other parties to the case in question, citing them as respondents.”…,.

The requirement of the existence of a constitutional matter, as an imperative, is further highlighted by the succeeding Rule 32(3) of the Constitutional Court Rules which mandates that an application for leave to appeal to this Court must contain or have attached to it a statement setting out clearly and concisely the constitutional matter raised in the decision sought to be appealed against.

In addition, the founding affidavit supporting the application must verify the fact, that, the cause of action arises from a decision of the subordinate court premised on a constitutional matter.

Therefore, it is axiomatic, that, where the subordinate court has not determined a constitutional issue, a litigant has no right of appeal to this Court.

Access to the jurisdiction of this Court unavoidably hinges upon the existence of this juridical fact.

It is unarguably the sine qua non of any approach to the specialised forum of the Constitutional Court.

The applicant's counsel pinpointed section 26(c) of the Constitution, which was referred to in the impugned judgment, as establishing a basis for petitioning this Court.

Counsel for the applicant submitted, that, the Supreme Court violated the import of equality in respect of the rights of the parties at the dissolution of their marriage in applying the principles enunciated in the Matrimonial Causes Act.

This position was countered by counsel for the respondent who insisted, that, the Supreme Court disposed of the matter on a non-constitutional basis.

She cited the case of Chiite & Ors v The Trustees of the Leonard Cheshire Homes Zimbabwe Central Trust 2017 (1) ZLR 603 (CC) to support the contention, that, a prospective appeal to this Court ought to be premised on a constitutional question that was determined by the lower court. She pointed to the prospective grounds of appeal as being devoid of any meaningful constitutional challenge.

It is an established position in our jurisprudence, that, mere reference to the Constitution by a subordinate court does not establish a constitutional issue.

In casu, the application for condonation, and the attached draft application for leave, fail to meet the essential requirement of a constitutional matter as obligated by the Constitution and the Rules.

The applicant's founding affidavit does not set out the constitutional matter that was determined by the Supreme Court.

The applicant seems keenly aware of this fact as evidenced by the poverty of his flimsy reference to section 56 of the Constitution in his papers in seeking to establish a basis for invoking the jurisdiction of this Court.

Furthermore, the attempt to latch onto section 26(c) of the Constitution, in the course of submissions by counsel for the applicant, is irreconcilable with the applicant's pleadings.

The founding affidavit and the draft application for leave are patently devoid of any mention of the specific manner in which the Supreme Court is alleged to have violated the rights protected under that constitutional provision.

This Court, in The Cold Chain (Pvt) Ltd t/a Sea Harvest v Makoni 2017 (1) ZLR 14 (CC), clarified the parameters of a constitutional matter as follows:

“The mere reference to the Constitution did not make what was said a constitutional matter. Reference by the Supreme Court to section 176 of the Constitution was an obiter dictum. The Constitution was referred to after the ratio decidendi had been arrived at and declared by the court. The effect of what the Court said in relation to section 176 of the Constitution was that its reasoning was not inconsistent with the provisions of that section. That is different from saying the decision on the issues before the court were based on the interpretation and application of section 176 of the Constitution.

It follows, that, where a subordinate court did not take a view of the case that required it to interpret and apply a constitutional provision to determine the issue raised, the matter does not pass for a constitutional matter.

Application for leave to appeal will be dismissed as the subordinate court will have rested its decision on an independent non-constitutional ground.”…,.

The above position was reiterated in Madyavanhu v Saruchera & Ors 2019 (1) ZLR 434 (CC)…, wherein the following was observed regarding the right of appeal to this Court:

“A person has a right to appeal against a decision of a subordinate court on a constitutional matter only. A decision of a subordinate court on a non-constitutional issue is unappealable because the Court has no jurisdiction to review such a decision. The purpose of the procedure of an application for leave to appeal, provided for in Rule 32(2) of the Rules, is to show that the Court has jurisdiction, as provided for in the Constitution, to hear and determine the appeal. In other words, the purpose of the procedure is to ensure that the applicant has a right of appeal to the Court against the decision of the subordinate court.”

From the above-cited authorities, it is evident that an application for leave to note an appeal against the determination of a lower court in the Constitutional Court hinges upon the existence of a constitutional matter.

The present application for condonation and extension of time cannot be granted as the prospective application for leave to appeal fails to satisfy the threshold for accessing the jurisdiction of this Court. The reference, by the court a quo, to the concept of equality, enshrined in section 26(c) of the Constitution, was purely tangential and not in any way dispositive of the main non-constitutional issues determined by that court.

Thus, the absence of a constitutional matter critically undermines the validity of the instant application.

CC09-22 : MINISTER OF MINES & MINING DEVELOPMENT and THE PROVINCIAL MINING DIRECTOR FOR MIDLANDS PROVINCE vs FIDELITY PRINTERS & REFINERS (PVT) LTD and JONAH NHEVERA
Ruled By: GOWORA JCC

This is an application for condonation for the late filing of an application for leave to appeal conjoined with the application for leave to appeal.

The applicants have filed this application in terms of Rule 5 as read with Rule 32 of the Constitutional Court Rules 2016 (the Rules). It is a composite chamber application for condonation and for leave to note an appeal against the decision of the Supreme Court in case number SC107-21.

FACTUAL BACKGROUND

The first applicant in this matter is the Minister of Mines and Mining Development, with the second applicant being the Provincial Mining Director for Midlands Province.

In the case before the Supreme Court, they were the first and second respondents respectively.

The first respondent in this application is Fidelity Printers & Refineries (Pvt) Ltd, a company duly incorporated following the laws of Zimbabwe. The first respondent was the appellant in the Supreme Court.

The second respondent is a male Zimbabwean citizen who was cited as the third respondent a quo.

The subject of the dispute is a mine, namely, Mirage 3 (hereinafter referred to as the mine). It is situated in Kwekwe in the Midlands Province.

The first and second respondents were deadlocked in a dispute regarding the ownership of the mine as they both claimed the right to occupy the mine and to exploit gold sand ore contained therein. Both parties claimed ownership rights from their respective certificates of registration in the mine with the Ministry of Mines and Mining Development.

The mine was initially registered in favour of the first respondent under certificate of registration No.8132. In June 2020, the applicant revoked the certificate of registration in favour of the first respondent and declared the mine forfeit. In July 2020, a new certificate was issued and registered in the name of the second respondent under Special Grant No.8202.

Subsequent to these developments, the first respondent wrote to the first and second applicants and requested information about any arrears relating to statutory payments over the claim. In response, the second applicant informed the first respondent, that, he could not issue an inspection invoice for a forfeited mine. The second applicant indicated, that, the mine had been forfeited on 5 June 2020 in terms of section 260 as read with section 272 of the Mines and Minerals Act [Chapter 21:05] (the Act).

The first respondent reacted to the notification and filed an urgent chamber application in the High Court under case number HC85/21. It submitted, that, the forfeiture of its claims, in June 2020, was invalid, palpably arbitrary, and violated every known procedure in the Administrative Justice Act [Chapter 10:28] (the Administrative Justice Act) which ensured fairness.

In the application, the first respondent challenged the forfeiture and relocation as unlawful on the premise that the procedure adopted by the applicants failed to comply with the dictates of the law as prescribed in section 220 of the Mines and Minerals Act.

The first respondent sought the following as interim relief:

(i) Suspension of the operation of the forfeiture order by the Provincial Mining Director;

(ii) The suspension of the operation of the special grant to the second respondent;

(iii) An interdict against the second respondent from entering the mine; and

(iv) The setting aside of the forfeiture of the mine.

The interim relief sought was granted on 17 February 2021.

After the grant of the interdict in HC85/21, the second respondent filed his urgent chamber application in Bulawayo under case number HC55/21.

In his founding affidavit, he averred, that, Fidelity Printers and Refiners (Pvt) Ltd had failed to pay inspection fees and the mine was forfeited to the State in June 2020. In addition, the second respondent averred, that, the first respondent had gone on a looting spree of the gold ore sands and that it was carrying out illegal mining activities by transporting the gold ore sands from the mine to another mine, namely, GMI Red Baron Mine.

The second respondent sought the following orders as interim relief:

(i) An interdict restraining the first respondent from removing the gold ore sands from the mine; and

(ii) That he, the second respondent, be granted the right to put in place security both at the mine and at GMI Red Barons premises to prevent the removal and processing of the gold ore sands.

The protracted dispute between the parties resulted in the consolidation of the matters by the High Court.

The judgment from that consolidation was the subject of appeal in the Supreme Court.

At the hearing of the consolidated application before the High Court, the first respondent argued, that, in terms of section 260 of the Mines and Minerals Act, the mining authorities should have afforded it an opportunity to make representations before a decision to forfeit its mining claim was made.

It further argued, that, the first and second applicants were obliged by law to have sent a notice of forfeiture to the miner before deeming the mine forfeited.

Finally, it argued, that, it did not suffice for the second applicant to place forfeiture notices on a board and that his or her approach violated the right to be heard in terms of section 3 of the Administrative Justice Act.

On the contrary, the applicants and the second respondent submitted, that, the first respondent wished to read unspecified provisions into the Mines and Minerals Act.

They argued, that, no notice of forfeiture was required to be issued in terms of the Mines and Minerals Act and that, although the first respondent was a wholly owned Government entity, its status did not absolve it from paying inspection fees as required by statute.

In its determination, the High Court held, that, the miner had an obligation to motivate the annual inspection of his or her mining location, after which the miner would pay a renewal fee. After that, an inspection certificate would be granted.

It further determined, that, sections 260 and 270 of the Mines and Minerals Act, which formed the crux of the first respondent's argument, were not the beginning and the end of the forfeiture process, but had to be read in conjunction with section 197 to section 199 of the Mines and Minerals Act which provide for the preservation of mineral rights and the processes to be followed by both the miner and the authorities regarding inspection certificates and the forfeiture of mines.

The court further held, that, section 260 of the Mines and Minerals Act was worded in peremptory terms and that a failure to obtain an inspection certificate made the mine liable to forfeiture.

Lastly, it ruled that the right to be heard was embedded in section 271 of the Mines and Minerals Act and that the provision in contention did not grant an individual the right to be given notice, a warning, or a letter of forfeiture. There was, in addition, no provision for the demand of payment of outstanding fees in respect of a mining location.

It was against this decision that the first respondent launched its appeal to the Supreme Court.

The grounds of appeal, and the subsequent relief sought, did not relate to any constitutional issues.

The grounds of appeal were the following:

“1. The court a quo erred in its interpretation and implementation of section 260 of the Mines and Minerals Act [Chapter 21:05]. Such provision does not permit the first and second respondent to act arbitrarily and without due notice to an affected party such as the appellant.

2. Concomitantly, the court a quo also misdirected itself in finding, that, the second respondent had acted lawfully when such respondent had not given proper prior notice before forfeiting the appellant's mining rights in Mirage 3 Kwekwe.

3. Furthermore, the Court a quo also erred in determining the provisions of the Mines and Minerals Act [Chapter 21:05] and excused the first and second respondent from giving credence to the appellant's rights as espoused in the Administrative Justice Act [Chapter 10:28].

4. Additionally, the court a quo grossly misdirected itself in finding, that, in the circumstances, the third respondent had lawfully been issued a Special Grant, which Grant only came into existence because of the unlawful forfeiture of the appellant's mining rights in respect of Mirage 3 Kwekwe.”

In the premises, the first respondent sought the following as relief on appeal:

“1. THAT, the instant appeal succeeds with costs.

2. THAT, the order of the court a quo be set aside and substituted with the following:

2.1 The Provisional Order issued by this Court in HC85/21 on 17 February 2021 is hereby confirmed.

2.2. The forfeiture of the appellant's claim, Mirage 3, Registered under Certificate Number 18132, purportedly done on 5 June 2020, is hereby set aside.

3. For the avoidance of doubt, further to para 2 hereof, any act done by the first and second respondents further to the forfeiture aforesaid, whose effect is to alienate the area under Mirage 3, Registered under Certificate Number 18132, is declared invalid and consequently null and void.

4. The Respondents shall pay the costs of suit.”

From the grounds of appeal, and relief sought a quo, it is apparent that the appeal did not raise constitutional issues for determination by the court a quo.

Thereafter, on 21 October 2021, the court a quo handed down judgment ex tempore in favour of the first respondent.

Consequent to the court's decision, the applicants have filed the present application.

THIS APPLICATION

This application is for condoning the late noting of an application for leave to appeal by the applicants and an application for leave to appeal. Accordingly, the applicants seek the following relief:

“1. The application for condonation for late filing of the application for leave to appeal be and is hereby granted.

2. The application for leave to appeal against the judgment of the Supreme Court in SC107-21 be and is hereby granted.

3. The applicants shall file their notice of appeal within ten (10) days of the date of this order.

4. There shall be no order as to costs.”

The applicants aver, that, they make this application in terms of Rule 5 as read with Rule 32 of this Court's rules.

The applicants seek leave to appeal against the decision of the court a quo.

It is common cause that they failed to note the requisite application for leave to appeal to this Court within the fifteen days stipulated by Rule 32 of this Court's rules.

The first respondent opposed the application.

The second respondent did not oppose the grant of the relief sought and chose to abide by the decision of the Court. Accordingly, he did not attend the virtual hearing.

The first respondent has raised a preliminary point, to the effect that this application is improperly before this Court on the premise that it is filed in defiance of Rule 32(3)(b) of the Constitutional Court Rules in that the decision against which the appeal is brought has not been attached to the application.

The first respondent contends, that, the reasons for the court's judgment are not attached to the application, thus rendering the application fatally defective.

On this issue, counsel for the applicants and counsel for the first respondent made the following submissions:

Counsel for the applicants submitted, that, the applicants case was founded on Rule 5 of the Constitutional Court Rules. He further submitted, that, the Rule justified their course of action of filing a hybrid application for condonation and an application for leave to note an appeal.

The court queried the validity of the application in the absence of the impugned Supreme Court decision from the record of proceedings.

The court asked counsel for the applicants to address whether the application for condonation was not invalid, considering that the applicants had not attached written reasons of the judgment to the application as required by both Rule 35 and Rule 32 of the Constitutional Court Rules.

Counsel for the applicants posited, that, there was a gap in the current rules of the Court as they failed to consider circumstances wherein an applicant would have taken all the reasonable steps to obtain a judgment from the lower court.

In casu, he reasoned that the applicant had sought to obtain a judgment from the Supreme Court to no avail.

Counsel for the applicants intimated, that, the applicants were compelled to launch the application due to the judgment's far-reaching effects. He submitted, that, after the order was issued by the court a quo, the owners of previously forfeited mines were now putting pressure on the mining authorities to set aside the forfeitures in respect of the mines. The mines were now the subjects of disputes as the dispossessed owners sought to retrieve ownership based on the judgment.

The applicants criticized the ex-tempore ruling for imposing an undue burden on them with respect to the forfeiture of mining claims.

Counsel for the applicants was adamant that the application before the Court was valid.

He contended that the applicants had complied with all the requirements necessary despite the lack of assistance from the Supreme Court.

To this end, he submitted that the primary consideration of the interests of justice ought to guide the Court's approach in disposing of the matter regardless of the absence of the written judgment.

Accordingly, he argued that the Court should postpone the matter to enable the applicants to obtain the decision from the Supreme Court.

Per contra, counsel for the first respondent submitted, that, the tenor of Rules 32 and 35 of the Constitutional Court Rules compelled the applicant to furnish the Court with reasons for the order. To buttress his point, he cited the authority of Rushesha v Dera CC24-17.

He insisted that there was no valid application on record and that the Court could not postpone a nullity as was apparent in the present case.

Counsel for the first respondent stated, that, the dicta in Tamanikwa v Zimdef SC73-17 were authority for the principle, that, a court of superior record could not amend nullities. He reasoned that what was not suitable for the Supreme Court to countenance in Tamanikwa v Zimdef SC73-17 could similarly not survive scrutiny in the Constitutional Court.

In addition, counsel for the first respondent submitted, that, Practice Direction 3/2013 militated against the Court's ability to grant the postponement order sought by the applicants. He posited, that, according to paragraph 10 of the Practice Direction, a matter that has been postponed sine die would be deemed abandoned if not set down within three months from the aforesaid date.

Therefore, counsel for the respondent contended, that, a postponement did not aid the applicants case as there was no guarantee that they would obtain the reasons for judgment within three months.

He, therefore, urged the Court to strike the matter off the roll.

On the question of costs, the first respondent sought imposition of costs against the applicants due to their alleged perverse conduct in petitioning the court with full knowledge that their suit did not satisfy the essential elements for condonation or leave to appeal.

In response, counsel for the applicants vehemently opposed the disposal of the matter in the manner prayed for.

He contended that he did not have instructions to make any concessions. However, he conceded that there was no request to condone the absence of the judgment in the applicant's founding affidavit.

Counsel for the applicants concluded his submissions by maintaining that there was a valid application. As such, it could not be regarded as a nullity by the Court. He submitted, that, postponing the matter with directions proffered to the Supreme Court would aid the interests of justice.

WHETHER THE APPLICATION IS PROPERLY BEFORE THE COURT

Before this Court proceeds to determine the merits of the application, an important and crucial issue has exercised the Court's mind, which may be dispositive of this matter.

This issue has arisen due to the applicants reliance on Rule 5 of the Constitutional Court Rules as the enabling law for an approach to the Court to obtain an indulgence to condone their failure to bring the application for leave within the stipulated period.

The issue goes to the validity of the application itself and whether or not it is properly before the Court.

The requirements for an order of condonation are well settled.

The leading authority in Zimbabwe is the case of Bishi v Secretary for Education 1989 (2) ZLR 240 (H), where CHIDYAUSIKU J…, said:

“Rule 259 provides that the court may extend the time for bringing an application for review if good cause is shown. The first issue that falls for decision is, therefore, whether good cause has been shown to justify the court in extending the time or condone the delay in bringing this application. The principles that guide the court in an application for condonation were set out in the case of United Plant Hire (Pty) Ltd v Hills & Ors 1976 (1) SA 717 (A). In that case, Holmes JA had this to say at p720F-G:

'It is well settled, that, in considering applications for condonation, the Court has a discretion, to be exercised judicially upon a consideration of all of the facts; and that, in essence, it is a question of fairness to both sides. In this enquiry, relevant considerations may include the degree of non-compliance with the Rules, the explanation therefor, the prospects of success on appeal, the importance of the case, the respondent's interest in the finality of his judgment, the convenience of the Court, and the avoidance of unnecessary delay in the administration of justice.

The list is not exhaustive.

These factors are not individually decisive but are inter-related and must be weighed one against the other; thus, a slight delay and a good explanation may help to compensate for prospects of success which are not strong.'

In support of the above proposition, the learned judge of appeal cited several authorities.

Holmes JA's approach has been approved and followed in a number of subsequent cases. Among these cases are Hermannsburg Mission & Anor v Sugar Industry Central Board & Anor 1981 (4) SA 278 (N) and Vereniging van Bo-Grondse Mynamptenare van Suid-Afrika v President of the Industrial Court & Ors 1983 (1) SA 1143 (T).

These authorities establish, that, the following are the factors to be taken into account in considering whether good cause has been shown:

(a) The degree of non-compliance with the rules;

(b) The explanation therefor;

(c) The prospects of success on the merits;

(d) The importance of the case;

(e) The convenience of the court;

(f) The avoidance of unnecessary delay in the administration of justice.”

The applicants have brought this application in terms of Rule 5 of the rules of this Court.

The first respondent has submitted, that, the applicants must be non-suited for bringing their application under the wrong Rule.

Given the litigants divergent views, a comparative analysis of the competing Rules becomes inevitable.

Rule 5(1) of the Constitutional Court Rules, upon which the application is premised, provides for departures from rules and directions as to procedure. It states that:

“(1) The Court or a Judge may, in relation to any particular case before it or him or her, as the case may be -

(a) Direct, authorise, or condone a departure from any provision of these rules, including an extension of any period specified therein, where it or he or she, as the case may be, is satisfied that the departure is required in the interest of justice;

(b) Give such directions as to procedure in respect of any matter not expressly provided for in the rules as appear to it, or him, or her, as the case may be, to be just and expedient.”

In their founding affidavit, the applicants, in no uncertain terms, express that the first component of the application, in respect of condonation, is made pursuant to Rule 5 of this Court's rules.

The application is premised on Rule 5 of the Constitutional Court Rules.

In so doing, the applicants are requesting the Court to accept that the application may be granted primarily on the applicants failure to comply with the rules and that such failure must be pardoned as of right.

A party cannot base any application before this Court on Rule 5 of the Constitutional Court Rules as it does not provide for a party to institute proceedings. It is a rule available to the Court where litigants have failed to comply with the rules of court but the Court considers it is in the interests of justice to condone the departure.

The applicants cannot predicate an application for condonation.

Rule 5 of the Constitutional Court Rules is a tool in the hands of the Court. Thus, it is meant for instances where a party has instituted proceedings but fails to comply with any provision of the rules. In that instance, the Court may then direct, authorise, or condone the departure from the rules in the interests of justice.

The Rule under which an application for condonation is provided is Rule 35 of the Constitutional Court Rules, which is the law upon which the applicants should have premised this application.

To put the matter beyond doubt, that Rule 35 and not Rule 5 of the Constitutional Court Rules is the applicable law for this application, it is only proper that I set out the pertinent provisions thereof. It reads as follows in relevant parts:

“35. Application for condonation and extension of time within which to appeal

(1) An application for condonation for the late noting of an appeal or for an extension of time within which to appeal shall be by chamber application and shall be signed by the applicant or his or her legal practitioner and shall be accompanied by a copy of the judgment against which it is sought to appeal.

(2) An application for condonation shall have attached to it —

(a) A draft notice of appeal in accordance with rule 33;

(b) An affidavit setting out the facts upon which the applicant intends to rely.

(3) An application for an extension of time within which to appeal shall —

(a) Have attached to it a notice of appeal in accordance with rule 33(1) and (2); and

(b) An affidavit setting out the reasons why the appeal was not entered in time or leave to appeal was not applied for in time and any relevant facts; and

(c) Where it relates to a matter in which leave to appeal is necessary, comply with the requirements of subrule (2).

(4) (not relevant)

(5) (not relevant)

(6) (not relevant)

(7) A Judge may make such order on the application as he or she thinks fit and shall, if an extension of time is granted, also deal with any question of leave to appeal which may be involved.”

The above Rule sets out the steps an applicant seeking condonation must undertake.

It further informs the applicant of the need to file an affidavit that explains the delay in applying. It makes provision for the necessary documents to be annexed to the application. A draft notice of appeal and the decision appealed against are required to be part of the record.

Its provisions accord with the factors to be considered by a court seized with an application for condonation.

The applicants did not premise their application for condonation on the above-stated Rule, and, from the interchange with counsel, it is apparent that its import and significance were lost on them.

It is unclear why the applicants would institute their application for condonation premised on Rule 5 when Rule 35 of the Constitutional Court Rules is available and is the correct rule for bringing such an application.

On the other hand, a perusal of Rule 5 shows that it is devoid of the procedural requirements set out in Rule 35. Instead, Rule 5 provides for the exercise of discretion on the part of the Court to condone a departure or failure by a litigant to adhere to the procedure.

It is not a Rule allowing the bringing of an application for condonation.

An applicant may refer to the Rule as a basis for the exercise of the Court's discretion in considering the application for condonation.

Basing their application on an incorrect Rule renders their application fatally defective.

The rules of this Court expressly dictate the procedure to be followed in applications of this nature.

The importance of citing the Rule on which an application is based was adequately articulated in Bushu v Grain Marketing Board HH326-17, wherein the court noted that:

“However, in practice, any astute legal practitioner making an application in terms of a statutory provision, including a rule of court, is expected to indicate the rule or provision concerned. The need to cite the relevant provision of the law under which the application is made, where applicable, of course, cannot be over-emphasized. The citation of the correct and relevant provision attunes the court to its jurisdiction and the judge or court as the case may be immediately opens up to the provision, and, if need be, researches on the provision if it is not one that immediately comes to mind.”

It must be emphasised, that, litigants must proceed in terms of the relevant Rule as that is what informs the respondent, and the court, as to the nature of the application and the relief sought. It is the Rule that delineates the processes to be followed by the parties and the time frames demanded for each process.

While Rule 35 is replete with what each party must comply with, including the Registrar, Rule 5 does not have any of those stipulations.

It therefore follows that Rule 5 applies to a matter that is already before the Court.

In hearing that matter, the Court may give directions, for example on further time within which parties may file papers, or condone a departure, for example, failure to file heads of argument within the period stipulated in the rules.

Therefore, the latter Rule cannot, under the circumstances, be the correct rule for an application for condonation for the late filing of an application for leave to appeal and the application for leave itself.

The court's rules regulate access to this or any other court. The need to pay regard to the rules when instituting proceedings was emphasised in Mupungu v Minister of Justice, Legal and Parliamentary Affairs CC07-21, where this court stated that:

“One cannot institute an action or application in the High Court, or any other court, without due observance of and compliance with the Rules of that court. The Rules inform a litigant of what is required of him to access the court concerned. If he fails to observe or comply with those Rules, he will inevitably be non-suited. To conclude this aspect of the matter, I am satisfied that the proceedings a quo were fatally defective and constitute a nullity for failure to comply with Rule 18 of the High Court Rules….,.”

When the draft order annexed to the application is read against the two rules, it becomes evident that the relief sought is more in line with Rule 35 than Rule 5 of the Constitutional Court Rules.

A closer examination of the two rules reveals, that, the relief sought by the applicants is provided under Rule 35(1) and sub-rule (3)(a), (b), and (c).

Therefore, Rule 5 of the Constitutional Court Rules, under which the applicants purport to approach the court for relief, is not the applicable law as it does not make provision for the filing of an application and does not provide for the relief sought.

It is not a Rule to premise an application upon.

Based on this Rule, the applicants cannot be said to have filed a proper application for condonation for the late filing of an application for leave.

The applicants are, therefore, non-suited before this Court.

Since this point is dispositive of the matter, it is unnecessary to consider the other preliminary point. Consequently, this application is a nullity as it stands on nothing.

DISPOSITION

It would be futile for this Court to proceed to determine the preliminary point raised by the first respondent. Before this Court can consider the contents of this application, it must be satisfied that a valid application is before it.

This application is not; it must be therefore struck off the roll.

The first respondent sought costs on the legal practitioner and client scale in its papers. However, it failed to motivate why the applicants should be mulcted by an award of costs on a higher scale.

It is not suggested, that, the applicants are guilty of vexatious conduct or that the application is frivolous.

I see no reason to deviate from the general approach in constitutional matters, that is, that no party should be penalised with an order of costs, save in exceptional circumstances. No such special circumstances as would justify an order of costs, even on the ordinary scale, are evident in this matter.

Accordingly, the following order is made:

The application is struck off the roll with no order as to costs.

HMA38-19 : BERRINGTON ZVANYANYA and OTHERS vs ZIMBABWE SUGAR MILLING INDUSTRY WORKERS UNION and OTHERS
Ruled By: MAFUSIRE J

Applicants 1 to 10 (Berrington Zvanyanya, Samuel Jinjika, Nyararai Dembo, Madhuvura Emmanuel, Madzuro Stiriki, Lovemore Muteurwa, Vengai Masungwini, Ngonidzashe Mabina Mudambanuki, Joe Gasva and Masacha Tapiwa) are one faction of a trade union.

Respondents 2 to 6 (Godfrey Katerere, Brawl Chikandiwa, Tavanga Vandirai, Lucia Chirilele and Nokhutula Dube) are the other.

The trade union is the first respondent (Zimbabwe Sugar Milling Industry Workers Union).

The seventh respondent (Tongaat Hulett Ltd t/a Triangle Ltd or Hippo Valley Estates Ltd) is the undertaking or industry in which the trade union is established. It is the employer. It is cited as a nominal party. It did not file any papers, electing to abide by the decision of the court.

Respondents 2 to 6 (Godfrey Katerere, Brawl Chikandiwa, Tavanga Vandirai, Lucia Chirilele and Nokhutula Dube) are members of the National Executive Committee of the trade union.

The applicants allege respondents 2, 3 and 4 (Godfrey Katerere, Brawl Chikandiwa and Tavanga Vandirai) are no longer employees of the seventh respondent (Tongaat Hulett Ltd t/a Triangle Ltd or Hippo Valley Estates Ltd).

For that reason, they allege, these respondents are automatically disqualified from continuous membership of the trade union.

So, the applicants seek two inter-related orders as follows:

(i) That, respondents 2, 3 and 4 are no longer members of the trade union by virtue of the termination of their contracts of employment with the employer; and

(ii) That respondents 2, 3 and 4 are disqualified from holding positions in the trade union's National Executive Committee.

The applicants also seek two inter-related orders in respect of the trade union.

They want it to hold elections to choose members of its National Executive Committee and to hold Annual General Meetings in terms of its Constitution.

Costs of suit are sought against respondents 2, 3 and 4 on an attorney-client scale....,.

With regards the non-holding of general elections, the respondents argue that the issue has been relegated to the periphery owing to the endless legal fights that have dogged the trade union. But plans are underway to hold the general meetings....,.

The argument in respect of the relief sought against the first respondent, relating to the holding of general meetings, has not been fully developed.

Both parties seem to have just ignored this aspect of the case.

The draft order on this aspect is open-ended.

An order is sought directing the first respondent to hold elections to choose members of the National Executive Committee. When should these elections be held? The other relief sought is that the first respondent should hold Annual General Meetings in terms of its Constitution. Again, when? How many such Annual General Meetings?

An order of court is not a pious exhortation. It must be efficacious. It must not be a brutum fulmen.

Evidently, the energy and primary focus of the applicants have been on the disqualification of respondents 2, 3 and 4 against whom costs are sought on an attorney and client scale.

However, and be that as it may, given that the respondents have all but admitted breach of the first respondent's Constitution by not holding general meetings as prescribed, I consider that even though open ended, the remedies sought against the first respondent can also be granted, albeit with slight modifications.

Members elected to the executive committee of the trade union must cause the holding of general elections as prescribed by the trade union's Constitution....,.

(i)...,.

(ii)...,.

(iii) The first respondent shall hold elections to choose members of the National Executive Committee within sixty (60) days of the date of this order, or within such other time frame as may be agreed upon.

(iv) The first respondent shall hold an Annual General Meeting in terms of its Constitution by not later than the 31st of December 2019.

CC10-22 : FRANCIS BERE vs JUDICIAL SERVICE COMMISSION and SIMBI MUBAKO and REKAYI MAPOSA and TAKAWIRA NZOMBE and VIRGINIA MABHIZA and PRESIDENT OF ZIMBABWE and MINISTER OF JUSTICE LEGAL & PARLIAMENTARY AFFAIRS
Ruled By: GARWE JCC, HLATSHWAYO JCC and PATEL JCC

This is an application lodged in terms of Rule 32 of the Constitutional Court Rules 2016, for leave to appeal against the whole judgment of the Supreme Court (the court a quo) handed down on 14 January 2022 as Judgment SC01-22.The decision of the court a quo had dismissed the ...

This is an application lodged in terms of Rule 32 of the Constitutional Court Rules 2016, for leave to appeal against the whole judgment of the Supreme Court (the court a quo) handed down on 14 January 2022 as Judgment SC01-22.

The decision of the court a quo had dismissed the applicant's appeal against the judgment of the High Court in Case No. HC2302/20.

The Background

The applicant is a former judge of the Supreme Court. He has cited seven respondents in all. The first respondent is the Judicial Service Commission. The second, third, and fourth respondents (Simbi Veke Mubako, Rekayi Maposa and Takawira Nzombe) were the members of a Tribunal that was established to inquire into the question of the applicant's removal from judicial office. The fifth respondent (Virginia Mabhiza) was the Secretary of that Tribunal. The sixth respondent is the President of Zimbabwe, while the seventh respondent is the Minister of Justice, Legal and Parliamentary Affairs.

Both the sixth and seventh respondents are cited in their official capacities.

On 3 March 2020, the applicant was suspended from judicial office following the appointment of the aforementioned Tribunal by the sixth respondent (hereinafter “the President”). The Tribunal was established to consider the applicant's suitability to hold the office of a judge. The suspension was pursuant to a resolution by the first respondent (hereinafter “the JSC”) made on 13 December 2019 to refer the question of his removal from office to the President.

The applicant was dissatisfied with the manner in which his case had been referred to the President.

Consequently, on 13 May 2020, he filed an application in terms of section 4 of the Administrative Justice Act [Chapter 10:28] alleging, that, the Judicial Service Commission (JSC) had failed to comply with section 3(1)(a) of the Administrative Justice Act by failing to act lawfully, reasonably, and in a fair manner when it gave advice to the President, in terms of section 187(3) of the Constitution.

The High Court dismissed the application before it with costs in favour of the Judicial Service Commission (JSC). The court found that the question of the applicant's alleged gross misconduct was a matter for the Tribunal to determine.

On appeal to the Supreme Court, the applicant raised five grounds of appeal, which are largely replicated in the intended grounds of appeal to this Court in the event that the instant application for leave to appeal is granted.

The Supreme Court upheld the finding of the High Court, that, the deponent to the Judicial Service Commission's opposing affidavit was lawfully authorised to do so. The court a quo also upheld the finding of the High Court, that, the applicant had failed to prove that the JSC was inquorate and functus officio at its meeting held on 13 December 2019. Lastly, the court held, that, the applicant's right to be heard had not been violated.

In the event, the court dismissed the applicant's appeal with no order as to costs.

The intended appeal before this Court is predicated on the assertion, that, the court a quo erred by avoiding an in-depth determination of various constitutional issues before it, despite having been alive to those issues.

The applicant accordingly asserts, that, the question of whether or not there was a constitutional matter before the court a quo must be answered in the affirmative. He further avers that the intended appeal to this Court does enjoy prospects of success.

The intended grounds of appeal

As paraphrased, the intended five grounds of appeal asseverate that the court a quo erred and thereby misdirected itself in the following respects:

(i) In determining that the appeal was moot when the challenge to the referral by the Judicial Service Commission (JSC), under section 187(3) of the Constitution, was that it was unconstitutional.

(ii) In not finding, that, any person who was not a member of the Judicial Service Commission (JSC) was prohibited from representing it in any application pursuant to section 187(3), and, consequently, in not finding that the JSC was not properly before the High Court.

(iii) In not finding that section 344 of the Constitution places the onus to prove that it had a quorum on the Judicial Service Commission (JSC) and not on the appellant.

(iv) In not finding that section 187(3) of the Constitution requires the Judicial Service Commission (JSC) to grant a judge the full scope of the audi alteram partem rule before sending its advice to the President.

(v) In not finding that the Judicial Service Commission (JSC) is required to determine the existence or otherwise of the jurisdictional facts under section 187(3) before sending its advice to the President.

The applicant avers that the foregoing grounds of appeal enjoy prospects of success for a number of reasons:

(i) As regards the first ground, he contends, that, mootness does not arise when a thing is void for being unconstitutional.

(ii) On the second ground, he states, that, the Constitution does not permit the Judicial Service Commission (JSC) to delegate to its Secretary the critically important duty of defending in court its advice to the President under section 187(3) of the Constitution.

(iii) With respect to the third ground, he argues, that, section 344 of the Constitution would be undermined if a constitutional body is not obliged to prove that it had a quorum and that the independence of the judiciary would be threatened by the possibility of an inquorate Judicial Service Commission (JSC) proceeding in terms of section 187(3) of the Constitution.

In relation to the fourth and fifth grounds, he avers, that, a rigorous process preceding the tendering of advice in terms of section 187(3) of the Constitution requires the full scope of the audi alteram partem rule and a finding by the Judicial Service Commission (JSC) on the existence of the jurisdictional facts contemplated in section 187(1) of the Constitution.

(iv) Lastly, the applicant asserts, that, the intended appeal is of public importance because it is central to the independence of the judiciary. He contends, that, the position of this Court on the issues raised will clarify the law and protect the Constitution.

In the premises, he prays for an order for leave to appeal to be granted.

The Judicial Service Commission (JSC), through an affidavit deposed to by its Secretary, firmly opposes the instant application.

It denies that there are any constitutional issues or matters to be decided as contemplated by Rule 32(2) of the Rules. It also asserts, that, the issues that were before the court a quo were resolved on non-constitutional bases. It further disputes the argument, that, it is in the public interest to grant leave to appeal. It is contended that the application does not satisfy the requirements for leave to appeal under Rule 32 of the Constitutional Court Rules.

The sixth and seventh respondents (President of Zimbabwe and the Minister of Justice, Legal and Parliamentary Affairs) also oppose the application through an affidavit deposed to by the seventh respondent.

In essence, it is averred, that, the court a quo did not decide any constitutional matter. Consequently, it is argued that the applicant has failed to show that his application has any prospects of success.

Both respondents pray that the application be dismissed with costs.

Applications for Leave to Appeal

Applications for leave to appeal to this Court are governed by Rule 32 of the Constitutional Court Rules. The requirements to be satisfied by an applicant seeking leave to appeal are now firmly established in the jurisprudence of the Court. They are as follows:

(i) The constitutional matter raised in the decision to be appealed against, and any other connected issues, must be clearly and concisely set out.

(ii) The applicant must intend to apply for leave to appeal against the decision of the subordinate court on a constitutional matter.

(iii) The applicant must demonstrate prospects of success on appeal.

(iv) The intended appeal must be in the interests of justice which are a paramount consideration.

See Cold Chain (Pvt) Ltd t/a Sea Harvest v Makoni 2017 (1) ZLR 14 (CC)…,.; Muza M v Saruchera N.O. & Ors CC05-19; Bonnyview Estate (Pvt) Ltd v Zimbabwe Platinum Mine (Pvt) Ltd & Anor CC06-19; Ismail v St. Johns College & Ors CC19-19; TBIC Investments (Pvt) Ltd v Mangenje & Ors CC15-20; Rita Mbatha v National Foods CC06-21; Gift Konjana v Dexter Nduna CC09-21.

I shall address each of the above requirements ad seriatim in their application to the facts and circumstances of the present matter.

Clear and concise exposition of constitutional matter

The application in casu, at its outset, relates to the requirements of Rule 32(3)(c) of the Constitutional Court Rules and proceeds to set out “the constitutional matters raised in the decision sought to be appealed against.”

These matters tally with the five grounds of appeal delineated in the draft notice of appeal. They are further elaborated in the applicant's founding affidavit.

There can be no doubt, and this appears to be common cause, that the applicant has satisfied and complied with the requirements of Rule 32(3)(c) of the Constitutional Court Rules.

Decision appealed against on constitutional matter

The more difficult question that arises herein is whether or not the decisions of the High Court and the Supreme Court, being the decisions impugned in casu, bear upon any constitutional issue or matter.

Counsel for the applicant answers that question in the affirmative.

He submits, that, the relevant constitutional matters were raised, both in the High Court and before the Supreme Court. In support of his position, he refers to several passages in the applicant's founding affidavit before the High Court and in his heads of argument before both of the subordinate courts.

Counsel for the applicant further submits, that, the fact that the Supreme Court wrote its judgment without reference to these points is irrelevant.

He nevertheless accepts, that, the mere reference to a constitutional point, whether in the pleadings or in the judgment to be appealed against, is not sufficient to satisfy the requisite test.

He is absolutely correct in that respect: see Moyo v Sgt. Chacha & Ors CC19-17; Chani v Mwayera J & Ors CC02-20.

He also contends, much less persuasively so in my view, that a constitutional matter does not cease to be so simply because there is no reference to the Constitution itself.

It is necessary to pinpoint the relevant references adverted to by counsel.

In the founding affidavit in Case No. HC2302-20 at paragraph 12, the applicant avers, that, the President can only act under section 187(3) of the Constitution, if the advice given to him is lawful in compliance with section 3(1)(a) of the Administrative Justice Act. At paragraphs 55 and 56, the applicant asserts that no jurisdictional circumstances exist that would have entitled the Judicial Service Commission (JSC) to refer the matter to the President.

In particular, he avers that the JSC does not appear to have addressed its mind at all to the grounds for removal from judicial office prescribed by section 187(1) of the Constitution. He then argues, that, if the decision to refer the matter to the President was premised on facts incapable of sustaining any of the three grounds for the removal of a judge “such a decision was grossly unreasonable and irrational.”

At paragraph 57, the applicant attacks the decision of the Judicial Service Commission (JSC) to revisit his case on the basis of new allegations without having been availed an opportunity to consider and respond to those allegations. This was in violation of the audi alteram partem rule and “the dictates of natural justice.”

At paragraphs 63, 65 and 66, the applicant avers that the JSC was both inquorate and improperly constituted when it took the decision to refer his matter to the President and the subsequent decision to suspend him.

These decisions were made outside its constitutive instruments, in particular section 189 of the Constitution, and, therefore “liable to be set aside as being unlawful and grossly irregular.”

At paragraph 68, the applicant assails the failure of the Judicial Service Commission (JSC) to place before the High Court a record of its minutes and deliberations, in keeping with its mandate under section 191 of the Constitution to conduct its business in “a just, fair, and transparent manner.”

At paragraph 70, the applicant observes that the office of a judge is sacrosanct; and, at paragraph 77, he affirms the need for the JSC to protect its judges from unmeritorious attacks on their dignity and standing.

He then concludes that the JSC's advice to the President “was contrary to section 3(1)(a) of [the Administrative Justice Act] and thus null and void”. Accordingly “the subsequent acts of [the President are a nullity and must be set aside.”

Turning to the applicant's heads of argument in the High Court, paragraphs 2 to 4 address the point, that, the Judicial Service Commission (JSC) cannot delegate its constitutional duties, in particular, the defence of its conduct under section 187(3) of the Constitution, to its Secretary or Acting Secretary. The same point is addressed at paragraphs 2 to 7 of the applicant's heads of argument before the Supreme Court.

The applicant reiterates the argument that the JSC was not properly before the High Court, as the deponent to its opposing affidavit was prohibited by the Constitution from representing it in an application brought by a judge pursuant to section 187(3) of the Constitution.

At paragraphs 11 to 17, the applicant sets out his attack on the quorum of the Judicial Service Commission (JSC) at the meeting whereat it decided to refer his matter to the President under section 187(3) of the Constitution. Reliance is placed upon section 341(1) and (2) of the Constitution pertaining to the quorum of any constitutional body.

It is argued, that, the decision of the JSC “was unconstitutional, unlawful and null and void” and that, consequently, the onus to prove that it was quorate at the meeting in question shifted to and lay upon the JSC rather than the applicant.

At paragraphs 36 to 43, the applicant canvasses the alleged failure of the High Court to determine the existence or otherwise of the jurisdictional facts under section 187(1) of the Constitution warranting the referral of the applicant's case to the President in terms of section 187(3). It is argued, that, the actions of the JSC, under section 187(3) of the Constitution, are “clearly subject to review” and that “what was before the court a quo was a challenge to the prior administrative action of advising [the President] under section 187(3) of the Constitution.”

It is further argued that the failure of the Judicial Service Commission (JSC) to “indicate the ground under section 187(1) that is being “relied on” rendered “the action under section 187(3) unconstitutional, unlawful and null and void.”

Lastly, it is submitted that “section 187(1) requires [the JSC] to first reach the conclusion that there is a prima facie case…, before acting under section 187(3)” and that “to reach the prima facie verdict, [the JSC] must carry out an adjudicative process and set out reasons for its conclusions…, before invoking section 187(3).”

Counsel for the first respondent submits, that, the application before the High Court was clearly premised on the provisions of the Administrative Justice Act. The court was not seized with any specific constitutional challenge. In essence, so it is argued, the applicant did not file any constitutional matter before the High Court or the Supreme Court.

Consequently, the doctrines of subsidiarity and avoidance come into play. Additionally, leave to appeal is a very limited right, and, in the present case, there is no basis for appealing to this Court.

Counsel for the sixth and seventh respondents adopts the same stance.

He submits, that, the applicant did not directly impugn the conduct of the Judicial Service Commission (JSC) on any constitutional ground. He filed what was essentially an Administrative Law matter and he cannot deviate from that position. Furthermore, the applicant attacks the Supreme Court for not making various findings. This shows that there was no proper basis for that court to adjudge any constitutional matter.

It is further argued, that, references to the Constitution before the High Court and the Supreme Court were purely incidental and not directly relied upon. Such references were only ancillary and in support of section 3 of the Administrative Justice Act. Accordingly, both subordinate courts were correct in not dealing with the case as involving any constitutional matter.

In reply, counsel for the applicant argues, that, where a constitutional issue arises in any litigation, the court may deal with it, and, if it does address that issue, then a constitutional appeal must lie against its decision.

Moreover, a point raising a constitutional issue may be taken at any time.

Co-counsel for the applicant submits, that, when one relates to the Administrative Justice Act then one is seeking to enforce the Constitution itself.

As regards referrals to the President under section 187(3) of the Constitution, the Judicial Service Commission (JSC) must apply its mind to that process and choose to apply the procedures available under the Judicial Code of Ethics as opposed to a referral to the President in terms of section 187(3) of the Constitution.

Proceedings in the High Court

The application before the High Court, in its heading, declares, categorically and unequivocally, that, it is a court application in terms of section 4 of the Administrative Justice Act.

Again, in paragraphs 5 and 6 of the application, it is asserted that the Judicial Service Commission (JSC), being an administrative authority, failed to act in accordance with section 3(1)(a) of the Administrative Justice Act and that its decision, to refer the matter to the President, was “unlawful, grossly irregular and therefore invalid.”

In similar vein, the founding affidavit in the High Court sets out the nature of the application in paragraph 11 as being made in terms of section 4 of the Administrative Justice Act and on the premise that the JSC did not comply with section 3(1)(a) of the Administrative Justice Act in that it failed “to act lawfully, reasonably, and in a fair manner.”

On the other hand, paragraph 7(5) of the application, relating to the alternative prayer sought, is framed on the basis that Proclamation No.1 of 2020 does not set out the jurisdictional circumstances necessary to found a prima facie case for the dismissal of a judge as envisaged by section 187(3) of the Constitution. This is also mirrored in paragraph 5 of the draft order sought in the High Court.

Additionally, the founding affidavit, in paragraph 56 refers to the failure of the JSC to apply its mind to the grounds for the removal of a judge in terms of section 187(1) of the Constitution.

However, very notably, the conclusion drawn in that regard is that the decision of the Judicial Service Commission (JSC), to refer the matter to the President, was “grossly unreasonable and irrational.”

Turning to the record of proceedings before the High Court, counsel for the applicant, in addressing the propriety of the JSC's opposing affidavit, its allegedly inquorate status, and the absence of jurisdictional circumstances warranting referral of the matter to the President, certainly appears to have relied upon various provisions of the Constitution in order to buttress his arguments.

Nevertheless, it is abundantly clear, that, the judgment of the High Court, and its reasoning in arriving at its conclusions, are not in any way grounded upon any constitutional principle or requirement. On the contrary, the judgment and the reasons therefor are firmly anchored in the relevant provisions of the Administrative Justice Act.

Having regard to the pleadings and proceedings in the High Court, it appears to me, that, the applicant did not raise any specific constitutional issue for determination by that court.

To the extent that he did allude to certain provisions of the Constitution, he did so purely incidentally in order to demonstrate the alleged failure of the Judicial Service Commission (JSC) “to act lawfully, reasonably and in a fair manner” in compliance with section 3(1)(a) of the Administrative Justice Act.

The applicant's cause of action, as expounded throughout the application and his founding affidavit, was essentially predicated on the perceived unlawful, unreasonable, and unprocedural conduct of the JSC, in alleged violation of its duties and obligations as an administrative authority, albeit as a creature of the Constitution.

CC08-18 : JOYCE MUJURU vs PRESIDENT OF ZIMBABWE and PARLIAMENT OF ZIMBABWE and MINISTER OF FINANCE AND ECONOMIC DEVELOPMENT and RESERVE BANK OF ZIMBABWE and GOVERNOR OF THE RESERVE BANK and ATTORNEY GENERAL
Ruled By: CHIDYAUSIKU CJ, MALABA DCJ, GWAUNZA JCC, GARWE JCC, HLATSHWAYO JCC, PATEL JCC, GUVAVA JCC, MAVANGIRA JCC and UCHENA JCC

After hearing argument on a point in limine raised by the first and third respondents (President of Zimbabwe and Minister of Finance and Economic Development) this Court issued the following order:“1. The preliminary point raised by the respondents is upheld.2. The matter is struck off the roll with costs.3. The ...

After hearing argument on a point in limine raised by the first and third respondents (President of Zimbabwe and Minister of Finance and Economic Development) this Court issued the following order:

“1. The preliminary point raised by the respondents is upheld.

2. The matter is struck off the roll with costs.

3. The reasons for this order are to follow in due course.”

What follow are the reasons for that order.

FACTUAL BACKGROUND

The Presidential Powers (Temporary Measures) Act [Chapter 10:20] (“the Presidential Powers Act”) provides as follows:

“2 Making of Urgent Regulations

(1) When it appears to the President that -

(a) A situation has arisen or is likely to arise which needs to be dealt with urgently in the interests of defence, public safety, public order, public morality, public health, the economic interests of Zimbabwe or the general public interest; and

(b) The situation cannot adequately be dealt with in terms of any other law; and

(c) Because of the urgency, it is inexpedient to await the passage through Parliament of an Act dealing with the situation; then, subject to the Constitution and this Act, the President may make such regulations as he considers will deal with the situation.

(2) Regulations made in terms of subsection (1) may provide for any matter or thing for which Parliament can make provision in an Act: Provided that such regulations shall not provide for any of the following matters or things -

(a) Authorizing the withdrawal or issue of moneys from the Consolidated Revenue Fund or prescribing the manner in which withdrawals may be made therefrom; or

(b) Condoning unauthorized expenditure from the Consolidated Revenue Fund; or

(c) Providing for any other matter or thing which the Constitution requires to be provided for by, rather than in terms of, an Act; or

(d) Amending, adding to or repealing any of the provisions of the Constitution.

3….,. (not relevant)

4. Regulations to be laid before Parliament

(1) Copies of all regulations made in terms of section two shall be laid before Parliament no later than the eighth day on which Parliament sits next after the regulations were made.

(2) If Parliament resolves that any regulations that have been laid before it, in terms of subsection (1), should be amended or repealed, the President shall forthwith amend or repeal the regulations accordingly.

(3) Where any regulations have been amended or repealed in terms of subsection (2) in accordance with a resolution of Parliament, the President shall not, within a period of six months thereafter, make any further regulations in terms of section two that are identical in substance to the regulations before they were so amended or repealed, as the case may be.

5. Effect of Regulations

Regulations made in terms of section two shall, to the extent of any inconsistency, prevail over any other law to the contrary, apart from regulations that have been made and are in force in terms of the Emergency Powers Act [Chapter 11:04].”

Pursuant to the provisions of section 2 of the Presidential Powers (Temporary Measures) Act, the President of the Republic of Zimbabwe, in a supplement to the Zimbabwe Government Gazette dated 31 October 2016, issued the Presidential Powers (Temporary Measures) (Amendment of Reserve Bank of Zimbabwe Act and Issue of Bond Notes) Regulations, 2016 (“the Bond Notes Regulations”).

Sections 2 and 3 of the Regulations, contained in Statutory Instrument 133/16, S.I.133 of 2016 provide:

“2. (1) The Reserve Bank of Zimbabwe Act [Chapter 22:15] (No.5 of 1999) (“the principal Act”) is amended by the insertion in Part VI ('Banknotes and Coinage') of the following section after section 44A -

“44B Legal Tender of Bond Notes and Coins

(1) The Minister may, by notice in a statutory instrument, prescribe that a tender of payment of bond notes and coins issued by the Bank that are exchangeable at par value with any specified currency other than Zimbabwean currency prescribed as legal tender for the purposes of section 44A shall be legal tender in all transactions in Zimbabwe to the same extent as that prescribed currency.

(2) Section 42 shall apply to bond notes prescribed under subsection (2) as they apply to banknotes.”

APPLICANT'S CASE BEFORE THIS COURT

Following the publication of the above Regulations, the applicant filed a court application which she said was made in terms of section 167(2)(d) of the Constitution of Zimbabwe as read with Rules 15 and 27 of the Constitutional Court Rules 2016. She sought an order in the following terms:

“1. That, the first respondent be and is hereby declared to have failed to fulfil his constitutional obligation to obey section 134(a) of the Constitution of Zimbabwe 2013 by exercising Parliament's primary law-making powers through his making of Statutory Instrument 133 of 2016.

2. As a consequence arising from 1, that it be and is hereby declared that the Presidential Powers (Temporary Measures) (Amendment of Reserve Bank of Zimbabwe Act and Issue of Bond Notes) Regulations 2016 (SI133 of 2016) be and are hereby declared null and void and of no force or effect, having arisen from 1st Respondent failure to fulfil his constitutional obligation within the contemplation of section 167(2) as read with section 2 of the Constitution of Zimbabwe 2013.

3. That the 2nd Respondent be and is hereby declared to have failed to fulfil its constitutional obligation to protect section 134(a) of the Constitution of Zimbabwe 2013 by allowing section 2(2) of the Presidential Powers (Temporary Measures) Act (Chapter 10:20) to remain on the statute books long after the enactment of the Constitution of Zimbabwe 2013.

4. As a consequence arising from 2, that, section 2(2) of the Presidential Powers (Temporary Measures) Act (Chapter 10:20), to the extent to which it permits the making of a statutory instrument that amends an Act of Parliament be and is hereby declared null and void and of no force or effect, having remained on the statute books from 2nd Respondent failure to fulfil its constitutional obligation within the contemplation of section 167(2) as read with section 2 of the Constitution of Zimbabwe 2013 (sic).

5. That, the proposed introduction of bond notes by the Respondents be and is hereby declared unconstitutional and therefore null and void for arising from the failures by the 1st and 2nd Respondents to fulfil their constitutional obligations as aforesaid (sic).

6. That, the Respondents (if they oppose this application) jointly and severally pay the costs of this application the one paying the others to be absolved.”

In her founding affidavit, the applicant avers, that, in terms of section 90 of the Constitution, the first respondent, as President, has a constitutional obligation to uphold, defend, obey and respect the Constitution as the law of the nation.

Paragraph 10 of Schedule 6 to the Constitution provides, that, all existing laws continue in force but must be construed in conformity with the Constitution.

The law therefore imposes a constitutional obligation on the President not to invoke section 2(2) of the Presidential Powers Act which is clearly inconsistent with the Constitution.

He has a constitutional obligation not to resort to section 2(2) of the Presidential Powers Act to the extent that it purports to empower him to amend an existing Act of Parliament. That section fell away the moment section 134(a) of the Constitution became law.

Section 134 of the Constitution provides that Parliament's primary law making function cannot be delegated.

This means a Statutory Instrument cannot purport to amend an Act of Parliament.

The President's constitutional obligation is to ensure that he does not make statutory instruments that amend Acts of Parliament. Instead, he is obligated to initiate legislation to repeal such legislation.

In respect of Parliament, the applicant avers, that, the Bond Notes Regulations have usurped Parliament's primary law making power.

Parliament must not allow the President, or any member of the executive, to usurp legislative powers.

Parliament has therefore failed to fulfil its constitutional obligation in two respects:

(i) First, it ought not to have allowed section 2(2) of the Presidential Powers (Temporary Measures) Act to remain on the statute books for more than three years after the promulgation of the 2013 Constitution. Instead, it should have repealed that section.

(ii) Secondly, it ought to have taken steps, within 24 hours of the gazetting of the Bond Notes Regulations, to direct the President to repeal them.

The applicant made it clear that this was not an application made in terms of section 85(1) of the Constitution, but, rather, one under section 167(2) of the Constitution.

She submitted that it was not necessary, therefore, to allege a breach of any of her fundamental rights.

Having said so, however, and in order to demonstrate how the failure by the President and Parliament, in upholding their constitutional obligations, is affecting her, she listed the rights violated as:

(a) Equal protection and benefit of the law – section 56(1) of the Constitution;

(b) Private property rights – section 71(2) of the Constitution; and

(c) Choosing and carrying on any profession, trade or occupation – section 64 of the Constitution.

OPPOSITION BY FIRST AND THIRD RESPONDENTS

The third respondent (the Minister of Finance and Economic Development) filed opposing papers on behalf of both respondents (the President of Zimbabwe and Minister of Finance and Economic Development). He took a point in limine.

It was this.

The Presidential Powers (Temporary Measures) Act, under which the President acted, is still part of our law and the President is duty bound, in the exercise of his duties, to make use of it.

The opinion by the applicant that the Presidential Powers (Temporary Measures) Act is constitutionally invalid cannot be used to claim that the President has failed to discharge a constitutional obligation.

In fact, by using an existing law, the President is discharging his constitutional obligation, and, in these circumstances, one cannot approach the court in terms of section 167(2) of the Constitution.

If the complaint were on the constitutionality of the Presidential Powers (Temporary Measures) Act, then, the applicant could only have approached this Court in terms of section 85(1) of the Constitution and allege a breach of one or other of her rights.

The third respondent further stated, that, the validity of the Bond Note Regulations is currently before Parliament. That institution has the right to amend or repeal the said Regulations.

Further, in terms of section 9 of the Fifth Schedule to the Constitution, Parliament may also apply to this Court for a declaration of invalidity in respect of the Regulations.

Accordingly, the matter is not ripe for constitutional determination as there exists a process within the law for the determination of the fate of the statutory instrument.

Lastly, he submitted, that, since the applicant is not applying for redress of any breach of her rights in terms of section 85(1) of the Constitution, she does not have the right to directly make an application to this Court but should have made an application to the High Court which could have adequately dealt with the matter.

OPPOSITION BY THE SECOND RESPONDENT

In its opposing papers, Parliament, represented by its Speaker, has submitted that section 117(1)(c), read together with section 134(a) of the Constitution, allows Parliament to confer legislative powers on another body or authority.

The Speaker has denied that Parliament has failed to fulfil its constitutional mandate since the statutory instrument in question is undergoing scrutiny by its Legal Committee.

FOURTH AND FIFTH RESPONDENTS OPPOSITION

In his opposing affidavit, the Governor of the Reserve Bank prays for the dismissal of the application with costs on the higher scale. He has stated as follows:

The Bond Note Regulations were meant to fortify and underpin the existing legal framework for the issuance of bond notes. That instrument was promulgated by the President pursuant to the lawful authority given to him by the Presidential Powers (Temporary Measures) Act, which Act remains part of our law as it has not been repealed by the Constitution.

In any event, paragraph 10 of the Sixth Schedule to the Constitution provides that all existing laws remain in force but must be construed in conformity with the Constitution.

He denies that the President has exercised primary law-making power as envisaged in section 134(a) of the Constitution.

ISSUES FOR DETERMINATION

On the basis of the papers before this Court, the first issue that arises for determination is whether the applicant has properly approached this Court in terms of section 167(2)(d) of the Constitution.

Should that question be answered in the positive, the issue that will follow is whether the President and Parliament have failed to fulfil their constitutional obligations.

I deal first with the preliminary point taken by the first and third respondents.

WHETHER THE APPLICATION IS PROPERLY BEFORE THE COURT

There is a presumption of validity in respect of all subsisting laws. Until such laws are set aside, they have legal effect and must therefore be complied with.

A court cannot, generally speaking, make an order declaring an act illegal, if, at the time the act was performed, it was done in terms of a valid law.

Once an act is done in terms of a valid law, that act is legal.

The only exception to this position is where the legislature, in clear and unambiguous language, or by necessary implication, retrospectively prohibits the doing of something that was legal at the time it was performed, that is to say, where the law expressly states that something that was not prohibited before the promulgation of the retrospective law is illegal – Greatermans Stores (1979) (Pvt) Ltd t/a Thomas Meikles Stores and Anor v The Minister of Public Service, Labour and Social Welfare & Anor CC02-18…,.

This Court has, on several occasions, held that there is a presumption of constitutionality of a law that has not been challenged for alleged unconstitutionality.

The court has further held, that, not only does an unchallenged law compel full obedience but that even a law that is under challenge commands the same level of obedience unless declared invalid.

In this regard, in In Re: Prosecutor General of Zimbabwe on his Constitutional Independence and Protection from Direction and Control CC13-17, this court remarked…,:

“…, it is important to acknowledge the well-known canons that the Constitution is the supreme law and that the rule of law is a founding principle of our nation (section 3(b) of the Constitution).

The quintessence of the rule of law is this, and simply this, that, where there is a law, it must be complied with…,.”

The court further cited with approval the Supreme Court decision in Econet Wireless (Pvt) Ltd v Minister of Public Service, Labour and Social Welfare & Ors 2016 (1) ZLR 268 (S) where…, the court remarked thus:

“It is a basic principle of our law, which needs no authority, that, all subsisting laws are lawful and binding until such time as they have been lawfully abrogated. If, however, any authority is required for this proposition, one need not look further than Black on the Construction and Interpretation of the Laws (1911) page 10 para 41, where the learned author says:

'Every act of the legislature is presumed to be valid and constitutional until the contrary is shown. All doubts are solved in favour of the validity of the Act. If it is fairly and reasonably open to more than one construction, that construction will be adopted which will reconcile the statute with the Constitution and avoid the consequence of unconstitutionality.'

What it means is that all questioned laws and administrative acts enjoy a presumption of validity until declared otherwise by a competent court.

Until the declaration of nullity, they remain lawful and binding, bidding obedience of all subjects of the law.

The doctrine of obedience of the law until its lawful invalidation was graphically put across by Lord Radcliffe in Smith v East Elloe Rural District Council [1956] AC 736 at 769 when he observed that:

'An Order, even if not made in good faith, is still an act capable of legal consequences. It bears no brand of illegality on its forehead. Unless the necessary procedures are taken at law to establish the cause of invalidity and to get it quashed or otherwise upset, it will remain as effective for its ostensible purpose as the most impeccable of orders.'”

The Presidential Powers Act is still part of our law, no court having declared it unconstitutional.

The opinion expressed by the applicant, that it is no longer valid law following the coming into force of the new Constitution, cannot be correct.

The Constitution itself has not said so.

To the contrary, the Constitution provides, in paragraph 10 of Part 4 of the Sixth Schedule, that, all existing laws remain valid, but are to be construed in conformity with the Constitution.

Implicit also in the opinion of the applicant is the suggestion that it is the constitutional obligation of the President to analyse all the laws under which he purports to act in order to ascertain their compliance with the Constitution.

Surely, that cannot be the correct legal position.

In the absence of a specific provision in the Constitution invalidating a law previously enacted, it cannot be the duty of a sitting President to embark upon such an inquiry. That is a role for the courts.

Section 134 of the Constitution does not impose such an obligation on the President.

What is sought before this Court is a declaration, in terms of section 167(3) of the Constitution, that the President and Parliament have both failed to fulfil obligations imposed on them by the Constitution.

The relief sought is predicated upon conduct of the President acting in terms of an Act of Parliament which allows him to make Regulations to deal with urgent situations and which Regulations have supremacy over any other law to the contrary.

It is clear that the applicant should have sought, but did not do so, a declaration that the Presidential Powers Act is unconstitutional.

However, having come under section 167(2)(d) of the Constitution, that is not the issue before the court.

Further, having proceeded in terms of section 167(2)(d), the question whether section 2 of the Presidential Powers Act amounts to unlawful delegation of Parliament's primary law-making function is not an issue before the court.

I agree with learned counsel for the first and third respondents, that, since, as it appears, the gravamen of the complaint by the applicant is on the constitutional validity of section 2 of the Presidential Powers Act, the applicant should have, in these circumstances, approached this Court in terms of section 85(1)(a) of the Constitution, alleging a violation of one or more of her constitutional rights.

In Berry (Nee Ncube) & Anor v Chief Immigration Officer & Anor 2016 (1) ZLR 38 (CC), the first applicant in that case approached the court, both in her own interest and that of her husband, seeking an order to the effect that her fundamental right to freedom of movement and residence, under section 66 of the Constitution, had been violated because the respondents, acting in terms of section 17 of the Immigration Act [Chapter 4:02] had refused to grant her husband entry into and residence in Zimbabwe.

It was common cause that the applicants had not sought to challenge the constitutional validity of section 17 of the Immigration Act.

At page 45G-H, this Court (per GWAUNZA JCC…,.) remarked:

“The applicants, therefore, take issue with the mere fact of the respondents doing their job, in other words, the respondents actions in properly applying an unchallenged law that falls under their direct responsibility.”

And, at p46C-D the court concluded:

“…, one cannot impugn, on a constitutional basis 'conduct' that constitutes a proper, lawful application of the law, without challenging the constitutional validity of the same law, or actions premised on a misinterpretation of it.”

The conclusion is therefore inescapable, that, the application is not properly before this Court and that it stands to be struck off the roll.

CC08-18 : JOYCE MUJURU vs PRESIDENT OF ZIMBABWE and PARLIAMENT OF ZIMBABWE and MINISTER OF FINANCE AND ECONOMIC DEVELOPMENT and RESERVE BANK OF ZIMBABWE and GOVERNOR OF THE RESERVE BANK and ATTORNEY GENERAL
Ruled By: CHIDYAUSIKU CJ, MALABA DCJ, GWAUNZA JCC, GARWE JCC, HLATSHWAYO JCC, PATEL JCC, GUVAVA JCC, MAVANGIRA JCC and UCHENA JCC

Since..., the gravamen of the complaint by the applicant is on the constitutional validity of section 2 of the Presidential Powers Act, the applicant should have, in these circumstances, approached this Court in terms of section 85(1)(a) of the Constitution, alleging a violation of one or more of her constitutional ...

CC10-23 : LAW SOCIETY OF ZIMBABWE vs PARLIAMENT OF ZIMBABWE and PRESIDENT OF THE SENATE and SPEAKER OF THE NATIONAL ASSEMBLY and PRESIDENT OF ZIMBABWE and MINISTER OF JUSTICE, LEGAL AND PARLIAMENTARY AFFAIRS and ATTORNEY-GENERAL N.O.
Ruled By: GARWE JCC, MAKARAU JCC, GOWORA JCC, HLATSHWAYO JCC, PATEL JCC, UCHENA AJCC and MAKONI AJCC

The applicant approaches this Court under section 167(2)(d) as read with section 85(1) of the Constitution of Zimbabwe.It seeks an order declaring that the Constitution of Zimbabwe Amendment No.1 Bill, alternatively, the Constitution of Zimbabwe Amendment No.1 Act, and the Constitution of Zimbabwe Amendment No.2 Act are invalid.Ultimately, the applicant ...

The applicant approaches this Court under section 167(2)(d) as read with section 85(1) of the Constitution of Zimbabwe.

It seeks an order declaring that the Constitution of Zimbabwe Amendment No.1 Bill, alternatively, the Constitution of Zimbabwe Amendment No.1 Act, and the Constitution of Zimbabwe Amendment No.2 Act are invalid.

Ultimately, the applicant seeks an order that both be set aside following a declaration of invalidity.

THE PARTIES

The applicant herein, the Law Society of Zimbabwe (hereinafter 'the LSZ') is a statutory corporate body set up in terms of the Legal Practitioners Act [Chapter 27:07]. It is the body responsible for the welfare and regulation of and for representing the legal fraternity in the country. It is capable of suing and being sued in its own right.

The first respondent is the Parliament of Zimbabwe (“Parliament”), with the second and third respondents being the heads of the Senate and the National Assembly, respectively.

The third respondent (hereinafter the 'Speaker') has deposed to the opposing affidavit on behalf of Parliament and the second respondent.

The fourth respondent is the President of Zimbabwe (hereinafter referred to as the 'President'), and the fifth respondent is the Minister of Justice, Legal and Parliamentary Affairs (hereinafter referred to as the 'Minister').

The sixth respondent is the Attorney-General of Zimbabwe. He is the Chief Legal Adviser to the government and has deposed to the opposing affidavit on behalf of the fourth and fifth respondents as well as himself.

Mr. Mubaiwa appears as amicus curiae.

THE FACTS

Sometime in 2017, Parliament enacted the Constitutional Amendment No.1 Act after it had gone through both the National Assembly and Senate. Its promulgation was challenged in this Court on the premise that it had not been validly enacted.

On 31 March 2020, the Constitutional Court set aside the proceedings of the Senate of 1 August 2017 because a two-thirds majority had not been reached. The Senate was directed to conduct a vote by the procedure set out in section 328(5) of the Constitution within a prescribed period.

For reasons not germane to this dispute, the Senate could not conduct a vote and applied to the Constitutional Court for an extension of the time to do so.

On 6 April 2021, the Senate passed the Constitution Amendment No.1 Bill pursuant to an order of the Constitutional Court granting an extension.

The applicant contends, that, the Constitution Amendment No.1 Bill, alternatively, Constitution Amendment No.1 Act 2021, is invalid for the reason that Parliament failed to fulfil a constitutional obligation, in that:

(i) It passed the Constitution Amendment No.1 Bill 2017 in violation of section 147 of the Constitution;

(ii) It failed to follow the procedure set out in section 328 of the Constitution;

(iii) It acted contrary to its constitutional duty, under section 119 of the Constitution, in failing to protect the Constitution and promote democratic governance in Zimbabwe;

(iv) In conformity with its constitutional duty, under section 119 of the Constitution, it still needs to ensure that its provisions are upheld and that it acts constitutionally and in the national interest.

On 17 January 2020, Parliament gazetted the Constitutional Amendment No.2 Bill.

On 8 June 2020, Parliament notified the public, through the Clerk to Parliament, that the Portfolio Committee on Justice, Legal & Parliamentary Affairs was to conduct nationwide public hearings on the Constitutional Amendment (No.2) Bill. The dates scheduled in the notice were 15 to 19 June 2020.

The record shows that the hearings were conducted from 14 to 19 June 2020.

On 20 April 2021, Parliament passed the Constitutional Amendment (No.2) Bill of 2019.

The applicant contends, that, Parliament failed to comply with the provisions of section 328(4) of the Constitution in that it did not immediately invite members of the public, as required by the section, to express their views on the proposed Bill in public meetings.

The applicant contends, that, Parliament should have convened meetings or availed facilities for holding public meetings for the said consultations.

In this regard, the applicant argues that Parliament failed to fulfil a constitutional obligation.

Consequently, it seeks relief against Parliament only, in respect of both Constitutional Amendment No.1 Act and Constitutional Amendment No.2 Act, more specifically, an order declaring that both were promulgated in violation of the Constitution and are thus invalid.

The respondents have all filed papers opposing the application on various bases.

Parliament has raised preliminary points in its opposing papers.

Although the other respondents did not raise any preliminary objections in their sole opposing affidavit, counsel for the fourth, fifth and sixth respondents, has, in oral argument before the Court, set out several points in limine, which I will advert to hereunder before determining the merits of the application.

At the outset of the matter being heard, counsel for the applicant informed the Court, that, the applicant no longer relied on section 85 of the Constitution to seek relief. He submitted that the applicant did not seek an express declaration of rights. Therefore, the application would be solely based on the provisions of section 167(2)(d) of the Constitution in that, in respect of both matters, Parliament had failed to fulfil its obligations under the Constitution in the manner in which both Acts were passed into law.

The first, second, and third respondents have raised several points in limine, which they contend are dispositive of the application, thus obviating the need to determine it on the merits.

The fourth, fifth, and sixth respondents did not raise any objections in the opposing affidavit or their heads of argument. The objections were, however, raised in oral argument by counsel at the inception of the hearing.

They are all on points of law relating to the procedural aspects of the application, and, therefore, stand for resolution by the Court.

This is a trite position in our court system which requires, that, any issue placed before the court by the parties must be determined and a decision rendered in respect of the same.

OBJECTIONS IN LIMINE BY PARLIAMENT

The first objection raised by Parliament, the first respondent herein, is that the applicant lacks the required locus standi to approach this court for the relief sought.

Counsel for the first respondent argued, that, the concession by the applicant, that it was no longer proceeding under section 85 of the Constitution, left it without a cause of action.

Secondly, it is contended on behalf of Parliament, that, the matter is not properly before the Court.

In this regard, Parliament suggests, that, the challenge by the applicant, of both the Constitution of Zimbabwe Amendment No.1 Act and the Constitution of Zimbabwe Amendment No.2 Act, on the basis that the respondents have failed to fulfil a constitutional obligation, cannot be bundled up in one application. The obligations sought to be invoked are disparate and distinct.

A challenge to the alleged absence of jurisdiction on the part of the Court, raised in the opposing affidavit, was not motivated in the written submissions, nor was it moved in the oral argument.

I take the view that it has been abandoned.

The last objection is that the applicant has no causa for the relief it seeks from the Court.

Counsel for the first respondent submitted, that, the applicant conceded that the Constitution of Zimbabwe Amendment No.1 Act was promulgated pursuant to an order of court. It is the position of counsel for the first respondent, that, once the applicant accepted that the amendment was effected in compliance with an order from the Court, then, it cannot found a cause of action under section 167(2)(d) of the Constitution alleging that the respondents had failed to fulfil a constitutional obligation.

SUBMISSIONS ON BEHALF OF THE FOURTH, FIFTH AND SIXTH RESPONDENTS

Counsel for the fourth, fifth, and sixth respondents, submitted that the application was invalid.

This objection stemmed from the fact, that, in the founding affidavit, the applicant states that the application was premised on section 167(2)(d) as read with section 85 of the Constitution and Rule 27 of the Constitutional Court Rules 2016. He argued, that, the validity of the application was determinable at the date of filing at which stage the applicant had stated that it was proceeding in terms of the provisions stated above.

Counsel argued further, that, the Constitutional Court enjoys exclusive jurisdiction under section 167(2)(d) of the Constitution, and the joinder of an application under section 85 of the Constitution was impermissible.

In this instance, he argued, that, the combination of the two causes of action rendered the application a nullity.

The second objection related to the relief being sought.

He argued that the draft order was defective as it was unclear whether the Court was being asked to invalidate the Act or the Bill.

Regarding the issue of locus standi, counsel argued that the relief in the application was not sought in terms of section 85 of the Constitution. The applicant did not seek a declaratur that a fundamental right had been violated and that consequential relief be issued by way of redress. Consequently, the cause of action had failed to relate to the relief being sought from the Court.

SUBMISSIONS ON BEHALF OF THE APPLICANT

Counsel for the applicant made the following submissions in response:

Counsel submitted, that, the applicant had not sought an express declaration of a violation of a right enshrined in [Chapter 4] of the Constitution. As a result, he was no longer relying on section 85 of the Constitution for relief.

Instead, he would pray for an order to the effect that Parliament had failed to fulfil its constitutional obligation in passing both Constitutional Amendment Act No.1 and No. 2 and that, consequently, both are invalid and should be set aside.

Regarding locus standi, counsel submitted, that, the applicant had standing under the Legal Practitioners Act. He contended, that, the applicant had alleged that it had a substantial and direct interest in the matter, thus establishing its standing.

He argued further, that, his counterparts were misconstruing the principle in Mudzuri & Anor v Minister of Justice, Legal and Parliamentary Affairs 2016 (2) ZLR 45 (CC) and that instead of limiting standing, the authority extended the basis on locus for any approach to the Constitutional Court.

SUBMISSIONS BY THE AMICUS CURIAE

Mr. Mubaiwa, who appeared as amicus curiae at the behest of the Court, made the following submissions:

He suggested that the applicant had pleaded standing under section 85 of the Constitution. As a result, it was his view that its reliance on section 167 of the Constitution, for standing, did not pass muster.

He contended, that, the applicant must have pleaded standing under section 167 of the Constitution, but failed to do so. The abandonment of section 85 of the Constitution left the applicant needing locus standi to approach the Court.

He prayed that, as a consequence, the application should be dismissed....,.

THE CAUSE OF ACTION

I turn next to the objections raised by the respondents. In this regard, I propose to address the alleged absence of a cause of action in so far as such causa is linked to the locus standi pleaded by the applicant.

Depending on its determination, I will proceed to determine the remaining objections ad seriatim.

The respondents have all taken issue with the alleged absence of a cause of action on the papers.

Even though counsel for the applicant abandoned reliance on section 85 of the Constitution for relief, this remains the sole cause of action pleaded by the applicant. The respondents contend that the cause of action has been destroyed by the applicant failing to plead and establish locus standi in terms of section 167(2)(d) of the Constitution before the Court.

I proceed to consider that objection simultaneously with the second objection, which is that the applicant has joined two causes of action in a single application.

This objection is premised on the averment in the founding affidavit that the application is brought in terms of section 167(2)(d) of the Constitution as read with section 85 of the Constitution.

It is contended by the fourth, fifth, and sixth respondents, that, an application under section 167 of the Constitution does not permit the citation of any party other than the President or Parliament.

Under section 167(2)(d) of the Constitution, so the argument went, this court enjoys exclusive jurisdiction, and the joinder of an application under section 85 of the Constitution is bad at law and highly improper.

Counsel also argued, that, the joinder of the two applications is improper and renders the application a complete nullity.

This court has previously considered and determined the impropriety of joining two causes of action in one application premised on the above provisions.

The jurisdiction exercised by the Constitutional Court under section 167(2)(d) of the Constitution is clear and distinct from that exercised under section 85 of the Constitution.

Regarding section 167(2)(d) of the Constitution, only the Constitutional Court may determine whether the President or Parliament has failed to fulfil a constitutional obligation. On the other hand, under section 85 of the Constitution, the Constitutional Court enjoys parallel jurisdiction with different courts as it permits any person to approach any court alleging the violation of a fundamental right enshrined under Chapter 4.

Section 85(3) of the Constitution is pertinent in this regard. It provides that “the rules of every court must provide for the procedure to be followed in cases where relief is sought under subsection (1) and those rules must ensure that…,.”

Thus, the conflation of the two causes of action under one application is impermissible and bad at law.

This Court underscores this in Zimbabwe Human Rights Association v Parliament of Zimbabwe & Ors CC06-22. In that decision, PATEL JCC stated…:

“For the sake of completeness, it is necessary to point out, that, the application, to the extent that it is premised on section 85(1) of the Constitution, has been made without leave in terms of Rule 21 of the Rules.

The need to comply with the Rules, generally, and with Rule 21 in particular, was forcefully reaffirmed by MAKARAU JCC in the recent case of Museredza & Ors v Minister of Agriculture, Lands, Water and Rural Resettlement & Ors CC11-21, at pp9, 11, 13-14 and 15.

The Court noted the critical distinction between the jurisdiction of a court, which is a matter of substantive law, and access to that jurisdiction, which is a question of adjectival or procedural law. It was further observed that applications for leave to obtain direct access, under Rule 21, serve the dual purpose of confirming that it is in the interests of justice to determine the matter at hand and as a gate-keeping function to sieve matters that this Court must determine in the interests of justice. The learned judge accordingly held, at p15, that:

'The practice of this Court therefore is that, where a litigant wishes to bring a new and fresh cause and the matter is not listed in Rule 21 as one for which leave is not required, then leave must be sought even if the matter is in the exclusive jurisdiction of the Court.'”…,.

The above remarks apply with equal force in casu.

Not only has the applicant not properly pleaded its cause of action, it has also conflated two causes of action into a single in a situation where the rules of the Constitutional Court set different procedural requirements in any approach to the court justifying the exercise of its specialized jurisdiction.

Section 167(5) of the Constitution provides that the Rules of the Court must permit any person, when it is in the interests of justice, with or without leave, to bring an application directly to the Court or to appeal directly to the Court from any other court.

Thus, section 167(5) of the Constitution speaks directly to those persons approaching the Constitutional Court, either directly, or wishing to appeal against the decision of a subordinate court, on the premise that it is in the interests of justice for the Court to grant them direct access.

In my view, the important phrase therein is “when it is in the interests of justice.”

There is no suggestion by the applicant that it seeks to approach the Court for relief and that its application falls in the category of applications contemplated under section 167(2)(d) of the Constitution.

From a construction of the provisions of section 85 and section 167(2)(d) of the Constitution, I find that the former is an application brought in the interests of justice whereas an application under section 167(2)(d) is not.

It seems to me that there is a clear distinction between applications under section 85 and applications under section 167(2)(d) of the Constitution.

While an application under section 85 of the Constitution may, depending on the peculiar circumstances of the case, require leave of court, one under section 167(2)(d) of the Constitution does not; whilst the Rules have therefore made provision for the requirement of leave under Rule 21, the requirement for leave has been dispensed with in an application under section 167(2)(d) of the Constitution.

It seems to me, therefore, that, the objection by counsel for the fourth, fifth and sixth respondents, on the joinder of two causes of action, was properly taken.

The objection is therefore upheld.

Ordinarily, this should be dispositive of the application, but, I take the view that it is pertinent and necessary to determine the issue of whether or not the applicant has satisfied the obligation to plead locus standi which is linked to or premised on the cause of action and relief sought before the Court.

LOCUS STANDI

The starting point, in my view, is the court's approach to standing under the common law, which is stringent and restrictive.

In general terms, under the common law, a litigant who approaches the court for relief must establish that he or she has a direct and substantial interest in the matter in question. To be properly before the court, such a litigant must show the infringement of some right or that his or her personal interests have been adversely affected, resulting in the litigant approaching the court for redress.

Thus, a party must show that he or she has a direct, personal, and substantial interest in the matter in contention.

In Zimbabwe Stock Exchange v Zimbabwe Revenue Authority SC56-07, MALABA JA…, said:

“The common law position on locus standi in judicio of a party instituting proceedings in a court of law is that to justify participation in the action, the party must show that he or she has a direct and substantial interest in the right, which is the subject matter of the proceedings and the relief sought.”…,.

Locus standi in judicio refers to one's right, ability, or capacity to bring legal proceedings in a court of law.

One must justify such right by showing that one has a direct and substantial interest in the subject-matter and outcome of the litigation: see Zimbabwe Teachers Association & Ors v Minister of Education and Culture 1990 (2) ZLR 48 (HC).

See also Dalrymple & Ors v Colonial Treasurer 1910 TS 372; Henri Viljoen (Pty) Ltd v Awerbuch Brothers 1953 (2) SA 151 (O); United Watch Diamond Co (Pty) Ltd & Ors v Disa Hotels Ltd & Anor 1972 (4) SA 409 (C); Deary NO v Acting President & Ors 1979 RLR 200 (G); SA Optometric Association v Frames Distributors (Pty) Ltd t/a Frames Unlimited 1985 (3) SA 100 (O); Molotlegi & Anor v President of Bophuthatswana & Ors 1989 (3) SA 119 (B).

In Sibanda & Ors v The Apostolic Faith Mission of Portland Oregon (Southern African Headquarters) Inc SC49-18, HLATSHWAYO JA…, considered the principle of locus standi and stated the following:

“It is trite that locus standi is the capacity of a party to bring a matter before a court of law. The law is clear on the point, that, to establish locus standi, a party must show a direct and substantial interest in the matter: see United Watch & Diamond Company (Pty) Ltd & Ors v Disa Hotels Ltd & Anor 1972 (4) SA 409 (C) at 415 AC and Matambanadzo v Goven SC23-04.”

In accordance with the general rule, that the party instituting proceedings must allege and prove that he has locus standi, the onus of so establishing rests upon the applicant.

Consequently, a litigant must show that he has the right or capacity to bring a matter to court and a right to appear in court.

Locus standi is the other side of the coin to jurisdiction.

It is incumbent, therefore, that, the applicant establishes locus standi in judicio to invoke the jurisdiction of the court to exercise its power in its favour: see Mars Incorporated v Candy World (Pty) Ltd 1991 (1) SA 567 (AD)…,.

A party instituting legal proceedings of any nature must show that both he and the party being sued, in layperson's terms, have a real interest in the matter being brought to court. A litigant must show his authority to sue or be sued and that the other party is one over which the court can exercise its jurisdiction. Any party instituting process in which relief is sought from the court is obliged to place itself as a party before the court seized with the dispute.

The applicant approached the court pursuant to section 85 of the Constitution. It did so more specifically in terms of section 85(1)(e) as the association has an obligation, in terms of the Legal Practitioners Act, to represent the interests of the legal fraternity in the country.

The applicant also states that it has “a direct and substantial interest to see that laws are passed and/or amended in compliance with the Constitution, including the Constitution itself.”…,.

The contention made on the respondents behalf is that the applicant has not pleaded any basis upon which it could be found as having locus standi in judicio under section 167(2)(d) of the Constitution in terms of which it sought relief.

In casu, in its papers, particularly the founding affidavit, the applicant had specifically pleaded that it is approaching this Court in terms of section 85 of the Constitution. The reasonable expectation that arises from this statement or averment is that a litigant approaching a court in terms of section 85 of the Constitution intends to enforce a fundamental human right or freedom.

The approach of the courts, generally, on the question of locus standi under the common law is rather restrictive.

The South African Supreme Court of Appeal in Four Wheel Drive Accessory Distributors CC v Rattan NO 2019 (3) SA 451 (SCA) considered the requirements of locus standi. It held that –

“The logical starting point is locus standi — whether, in the circumstances, the plaintiff had an interest in the relief claimed, which entitled it to bring the action.”

Generally, the requirements for locus standi are these:

The plaintiff must have a sufficient interest in the subject matter of the litigation, usually described as a direct interest in the relief sought; the interest must not be too remote; the interest must be actual, not abstract or academic; and it must be a current interest and not a hypothetical one.

The duty to allege and prove locus standi rests on the party instituting the proceedings.

On the other hand, the courts have adopted a broad and generous approach when it comes to standing to give access to court to those litigants wishing to enforce rights under the Constitution.

The principle upon which the courts exercise this discretion is that the effective enforcement of a justiciable Bill of Rights requires that courts adopt a broad approach in so far as standing under the Constitution is concerned.

This Court has extensively canvassed the issue of locus standi in the case of Gonese & Anor v President of Zimbabwe & Ors CC10-18, wherein PATEL JCC elucidated the approach of this Court as follows:

“In the Doctors for Life case (supra), at para 218, NCGOBO J recognized the need to find a proper balance between avoiding improper intrusions into the domain of Parliament and ensuring that constitutional provisions are sufficiently justiciable so as not to be rendered nugatory.

The latter consideration, in my view, behoves this Court to adopt a liberal and generous approach to locus standi in matters involving constitutional rights and obligations. This is so notwithstanding the constitutional and statutory independence enjoyed by Parliament in the control of its own affairs: see Smith v Mutasa N.O. & Anor 1989 (3) ZLR 183 (SC) at 208 & 209. See also Mudzuru & Anor v Minister of Justice, Legal and Parliamentary Affairs N.O. & Ors CC12-15, at pp.13-15, where this Court, per MALABA DCJ (as he then was), eschewed the narrow traditional conception of locus standi in favour of a broad and generous approach to standing in constitutional matters.”…,.

What I must consider, therefore, is whether the applicant has sufficiently placed enough factual allegations to lead to a conclusion that it has the necessary locus standi to approach the Constitutional Court for relief under section 167(2)(d) of the Constitution.

From a perusal of the founding affidavit, in setting out the premise of its locus standi, the applicant avers that, in addition to it approaching the Court in terms of section 85, on behalf of its members, it “has substantial interest to see that laws are passed and/or amended in compliance with the Constitution - including amendments to the Constitution.”

Although the applicant pleads that it has primarily approached the Court in terms of section 85 of the Constitution, in other portions of its founding affidavit, it purports to approach the Court in terms of section 167(2)(d) of the Constitution.

As already noted, the Rules relating to standing for each approach are different.

Whilst the applicant brought the matter premised on an alleged violation of a fundamental right enshrined in Chapter 4 of the Constitution, the relief sought, however, is an order to the effect that Parliament failed to fulfil a constitutional obligation in the manner in which the amendments were passed into law.

Section 85(1) of the Constitution defines the different classes of people who may approach the Constitutional Court to seek redress in terms of that section. This Court has settled the position that section 85(1) of the Constitution has liberalised standing, thus allowing a person who ordinarily could not seek redress for an injury another person had suffered to do so.

See M & Anor v Minister of Justice, Legal and Parliamentary Affairs N.O. & Ors 2016 (2) ZLR 45 (CC) and Mawarire v Mugabe & Ors 2013 (1) ZLR 466 (CC).

Section 167(2)(d) of the Constitution, however, is silent on the nature of standing entitling a person to approach this Court under it.

Rule 27 of the Constitutional Court Rules is also silent on the nature of standing that an applicant is expected to set out.

The generous approach to locus standi, in constitutional matters, does not excuse a litigant from satisfying the Court that he or she has the requisite standing to bring the suit.

A comparison of the provisions of Rule 21of the Constitutional Court Rules, allowing for access under section 85 of the Constitution, and Rule 27 of the Constitutional Court Rules, in terms of which the conduct of the President or Parliament may be impugned for failing to comply with a constitutional obligation, shows that those provisions are very different.

Whereas Rule 21 of the Constitutional Court Rules obliges an applicant to establish that the application is in the interests of justice, the latter Rule premises the application on an allegation of failure to comply with a constitutional obligation.

The requirement for a litigant approaching the court in terms of a provision of the Constitution to properly plead its cause and adhere to the Rules was emphasized in Zimbabwe Human Rights Association v Parliament of Zimbabwe & Ors CC06-22, wherein PATEL JCC opined:

“I should also highlight the other imperative of the rules of practice and procedure, to the effect, that, the pleadings relied upon by every litigant must be framed with crystal clarity to enable the court and the other parties involved to comprehend and respond to that litigant's cause of action and assertions.

This aspect was crisply underscored by GARWE JA (as he then was) in Medlog Zimbabwe (Pvt) Ltd v Cost Benefit Holdings (Pvt) Ltd 2018 (1) ZLR 449 (S), at 455G:

'In general, the purpose of pleadings is to clarify the issues between the parties that require determination by a court of law.'

After citing various authorities, both in this jurisdiction and elsewhere, the learned judge concludes, at 457G:

'The position is therefore settled, that, pleadings serve the important purpose of clarifying or isolating the triable issues that separate the two litigants. It is on those issues that a defendant prepares for trial and that a court is called upon to make a determination. Therefore, a party who pays little regard to its pleadings may well find itself in the difficult position of not being able to prove its stated cause of action against an opponent.'”…,.

Attention may also be drawn to the cautionary sentiments of MAKARAU JCC in Mliswa v Parliament of the Republic of Zimbabwe CC02-21, on the need to plead one's cause of action with precision.

In casu, a perusal of the founding affidavit reveals that even though the applicant pleaded locus standi under section 85 of the Constitution, there is no cause of action linked to section 85 of the Constitution on the papers. Instead, all the averments in the affidavit point to an alleged failure to fulfil a constitutional obligation on the part of Parliament.

It seems to me that the applicant, in framing the application, wished to place itself before the Court under section 85 of the Constitution in order to establish its locus standi, but sought relief under section 167(2)(d) of the Constitution.

It is apparent, that, the applicant assumed, and, was under the mis-apprehension that it was entitled to plead both section 85 and section 167(2)(d) of the Constitution as the vehicle to place itself before the Constitutional Court.

What an applicant needs to plead to establish locus standi under section 167(2)(d) of the Constitution was clarified by the Constitutional Court in Chirambwe v President of the Republic of Zimbabwe & Ors CC04-23.

This Court remarked as follows from paragraph 40 of the judgment:

“…,. That the new Constitution expanded the locus standi of persons seeking to approach the court is now settled. For example, in direct applications brought under section 85(1) of the Constitution, torch bearers are now permitted to seek redress on behalf of the general public or in the interests of a group or class of persons.

In respect of an application alleging that the President or Parliament has failed to fulfil a constitutional obligation, Rule 27 of the Constitutional Rules 2016 requires an applicant to depose to an affidavit setting out the constitutional obligation in question and what it is alleged the President or Parliament failed to do in respect of such obligation.

That the locus standi of applicants seeking constitutional protection and enforcement has been extended is now accepted by this Court.

In Everjoy Meda v (1) Maxwell Matsvimbo Sibanda (2) Zambe Nyika Gwasira (3) The Sheriff of the High Court of Zimbabwe (4)The Registrar of Deeds CC10-16, MALABA CJ made pertinent remarks…, that:

'The purpose of the section is to allow litigants as much freedom of access to the courts on questions of violation of fundamental human rights and freedom with minimal technicalities…,.'

Similarly, in Innocent Gonese (2) Jesse Majome v (1) The President of Zimbabwe (2) Parliament of Zimbabwe (3) Minister of Local Government, Public Works and National Housing N.O. CC10-18, PATEL JCC, writing for the court, remarked…, that:

'…, the latter consideration, in my view, behoves this Court to adopt a liberal and generous approach to locus standi in matters involving constitutional rights and obligations: See also Mudzuru & Anor v Minister of Justice, Legal & Parliamentary Affairs N.O. & Ors CC12-15 at pp13-15 where this Court, per MALABA DCJ (as he then was), eschewed the narrow traditional conception of locus standi in favour of a broad and generous approach to standing in constitutional matters…,. In my view, the applicants have an unquestionable right, both as citizens and as legislators, to vindicate any perceived violation of the Constitution….,.

Considering the whole tenor of the current Constitution and the cases cited above, I have no doubt in my mind, that, it is no longer a requirement for an applicant in a constitutional application, such as the present, to demonstrate that a particular constitutional right has been violated in respect of him/her personally.

The applicant makes it clear that he approaches the court in his capacity as a citizen and resident of Zimbabwe. The point in limine taken on this aspect must therefore fail.”

Given the above dicta, as clearly expressed by this Court, it is apparent that the applicant must aver, in its affidavit, facts which, if proved, would establish a failure to fulfil a constitutional obligation.

The complete absence of a factual basis upon which to approach the Constitutional Court for relief under section 167(2)(d) of the Constitution may leave a litigant without obtaining relief.

When describing the nature of the application, the applicant stated, that, it was an application brought in terms of section 167(2)(d) of the Constitution as read with section 85 of the Constitution.

This is all that it pleaded in justifying its approach to the Constitutional Court under section 167(2)(d) of the Constitution.

This must be read in conjunction with its claim to locus standi under section 85 of the Constitution wherein it states that it has a direct and substantial interest to see that laws are passed and/or amended in compliance with the Constitution, including amendments to the Constitution itself.

This statement is vague as it only speaks to laws being passed and/or amended in compliance with the Constitution, including amendments to the Constitution itself. It does not make specific reference to the intention to hold Parliament to account and the standing upon which the applicant considers that it is clothed with the requisite locus standi to do so.

This is against the settled position that legal standing should be pleaded or established.

The need to comply with the Rules in any application under the Constitution was re-affirmed by PATEL JCC in Zimbabwe Human Rights Association v Parliament of Zimbabwe & Ors CC06-22 wherein the learned judge stated:

“Having regard to the relevant passages in the founding affidavit that I have referred to earlier, it is abundantly clear that the applicant has predicated its locus standi on section 85(1) of the Constitution. On the other hand, its cause of action is specifically founded on the alleged failure of the first and second respondents to fulfil their constitutional obligations. Thus, the applicant's claim to activate the jurisdiction of this Court is exclusively anchored in section 167(2)(d) of the Constitution. This is then mirrored in the declaratory and substantive relief that it seeks both of which are confined to the juridical ambit of section 167(2)(d). The order prayed for makes no mention whatsoever of any infringement of a fundamental right giving rise to locus standi under section 85(1) and the jurisdictional competence of this Court under that provision.

In essence, what the applicant has purported to do is to proceed under two mutually exclusive provisions of the Constitution, viz. section 85(1) and section 167(2)(d).

This course of action was pointedly frowned upon in Central African Building Society v Stone & Ors SC15-21…, where GWAUNZA DCJ observes that:

'…,. An application under section 85 of the Constitution should not be raised as an alternative cause of action…,. Section 85(1) is a fundamental provision of the Constitution, and, an application under it, being sui generis, should ideally be made specifically and separately as such.'”

I find myself in agreement with the dicta in the above authorities and I respectfully associate myself with the remarks therein.

The applicant was obliged to plead its locus standi with the precision and clarity required. It ought to have pleaded a cause of action properly, starting with locus standi, thus enabling the court to exercise its special jurisdiction under section 167(2)(d) of the Constitution.

I find, that, in the circumstances, the matter can be resolved in favour of the respondents. The applicant, therefore, has not established locus standi in judicio to approach the court for relief under section 167(2)(d) of the Constitution.

DISPOSITION

Thus, it is the duty of the party instituting court proceedings to make out a case that he or she has locus standi to approach the Court for appropriate relief and that the Court can exercise jurisdiction over the party on the other side.

If he fails to do so, his case will fail. He will not have an opportunity to correct his error.

An opposing party can raise the issue of an absence of locus standi at any time in the proceedings.

The Court may not condone the lack of locus standi, even if the parties agree between them to litigate with one another. If locus standi is absent, the proceedings are invalid.

While the question of locus standi, to an extent, is a procedural issue, it is also a matter of substance. It concerns the sufficiency and directness of a person's interest in litigation justifying a basis for that person to be accepted as a litigating party. The sufficiency or the existence of the requirement of interest depends on the facts of each case. It is for the party instituting proceedings to allege and prove its locus standi.

The onus to establish any issue rests on that party relying upon it.

It is thus necessary for a party, in all cases, to allege, in its pleadings, facts sufficient to show that it has locus standi to bring an action. This applies to all proceedings, whether by application or summons.

The applicant has not met the onus to establish locus standi in judicio.

In addition, the applicant has conflated two causes of action, and, in practical terms, this resulted in the applicant placing itself out of the Court's jurisdiction. The application must therefore fail and should be dismissed.

In opposing the application, the respondents prayed for the application to be dismissed with costs.

The prayer for costs was not persisted with in argument.

This is a proper approach, as, the general principle is that courts should not order costs against the losing litigant, in constitutional matters, lest deserving litigants are discouraged from approaching the courts for redress.

In the premises, I make the following order:

The application is dismissed with no order as to costs.

View Appeal
HH264-21 : MUSA KIKA vs MINISTER OF JUSTICE LEGAL & PARLIAMENTARY AFFAIRS and THE CHIEF JUSTICE HONOURABLE LUKE MALABA N.O. and OTHERS
Ruled By: ZHOU J, CHAREWA J and MUSHORE J

IntroductionThis judgment is in respect of two matters, HC2128/21 and HC2166/21. The two matters were heard together because the substance of their complaints is the same.Both matters were brought by way of application. HC2128/21 was instituted as an urgent court application while HC2166/21 was brought as an urgent chamber application.Both ...

Introduction

This judgment is in respect of two matters, HC2128/21 and HC2166/21. The two matters were heard together because the substance of their complaints is the same.

Both matters were brought by way of application. HC2128/21 was instituted as an urgent court application while HC2166/21 was brought as an urgent chamber application.

Both applications are opposed by some of the respondents.

Opposing papers, answering affidavits, and heads of argument were filed following a case management meeting with the parties representatives at which the dates for filing the papers were set by consent.

In case no. HC2128/21 the applicant, a legal practitioner and director of the Zimbabwe Human Rights NGO Forum, cited the Minister of Justice, Legal and Parliamentary Affairs, and all the judges of the Constitutional Court and Supreme Court as well as some of the judges of the High Court, on the basis that they are acting judges of the Supreme Court or have been called upon to act as such.

The judges were cited in official capacities.

The Judicial Service Commission (JSC) was joined in the proceedings, at its instance, at the case management conference.

In HC2166/21 the respondents cited are the Judicial Service Commission (JSC), the Chief Justice of Zimbabwe, Honourable Luke Malaba N.O. and the Attorney General N.O. The applicants in that case are Young Lawyers Association of Zimbabwe and Frederick Charles Moses Mutanda, a liberation war veteran.

Background

On 7 May 2021, the Constitution of Zimbabwe Amendment (No.2) Act 2021 became law after being assented to by the President. The contentious aspects of the Amendment Act which are the subject of the instant applications are found in its section 13.

That section repealed section 186 of the Constitution 2013 and substituted it with a new section 186.

Upon gathering that section 186 of the Constitution, introduced by the Amendment, would apply to the second to eighteenth respondents (Luke Malaba, Elizabeth Gwaunza, Paddington Garwe, Rita Makarau, Anne-Mary Gowora, Ben Hlatshwayo, Bharat Patel, Antonia Guvava, Susan Mavangira, Chinembiri Energy Bhunu, Tendai Uchena, Nicholas Mathonsi, Charles Hungwe, Felistus Chatukuta, Alfas Chitakunye, Samuel Kudya and Lavender Makoni) the applicants instituted the two applications. The applicant in Case No. HC2128/21 seeks the following relief:

“IT IS DECLARED THAT:

1. In accordance with provisions of sections 186(1)(a) and 186(2) (of the Constitution of Zimbabwe 2013) in their original form and notwithstanding provisions of Constitutional Amendment Number 2, second to eighteenth respondents hold office they reach the age of seventy years, whereupon they must, by operation of law, retire.

2.The attempt to subvert the position encapsulated in the "original" section 186(1)(a) and 186(2) of the Constitution of Zimbabwe 2013 is contrary to law and therefore in breach of applicant's right to the protection of the law as set out in section 56(1) of the Constitution of Zimbabwe 2013.

IT IS CONSEQUENTLY ORDERED THAT:

ln Case No. HC2166/21 the applicant sought declaratory relief as follows:

“IT IS DECLARED THAT:

The relief sought in paragraphs 2, 3, 4 and 5 is the same one being sought by the applicant in HC2128/21 save for the reference to section 69(4) of the Constitution.

View Appeal
HH264-21 : MUSA KIKA vs MINISTER OF JUSTICE LEGAL & PARLIAMENTARY AFFAIRS and THE CHIEF JUSTICE HONOURABLE LUKE MALABA N.O. and OTHERS
Ruled By: ZHOU J, CHAREWA J and MUSHORE J

Introduction

Background

“IT IS DECLARED THAT:

IT IS CONSEQUENTLY ORDERED THAT:

3. LUKE MALABA, must or did, at midnight on 15 May 2021, cease to hold the office of CHIEF JUSTICE OF ZIMBABWE.

4. Any action, conduct, or deed of LUKE MALABA post the 15th of May 2021, purportedly as CHIEF JUSTICE OF ZIMBABWE, is null and void and of no effect.

5. ln accordance with the provisions of section 181 of the Constitution 2013, with effect from midnight on the 15th of May 2021, ELIZABETH GWAUNZA became/becomes the ACTING CHIEF JUSTICE OF ZIMBABWE until such a time as a substantive CHIEF JUSTICE OF ZIMBABWE is appointed.

6. In accordance with the provisions of section 181 of the Constitution 2013, with effect from midnight on the 15th of May 2021, PADDINGTON GARWE became/becomes the ACTING DEPUTY CHIEF JUSTICE OF ZIMBABWE until such a time as a substantive DEPUTY CHIEF JUSTICE OF ZIMBABWE is appointed.

7.There shall be no order as to costs."

During argument, counsel for the applicant abandoned the relief sought in paragraph 6 of the draft order and moved that the draft be amended accordingly.

We point out, that, notwithstanding the statement suggesting that what is being sought in paragraphs 3-7 of the draft order is consequential relief, the relief is clearly in the form of a declaration.

The second to eighteenth respondents did not file opposing papers.

They will therefore be taken not to have opposed the application: see Prosser & 35 Others v Ziscosteel Company Ltd HH201-93 and Panganai and 20 Others v Kadir & Sons (Pvt) Ltd HH26-95.

We do not accept the submission by their counsel that they oppose the application without filing opposing papers. This is because the directions issued on 12 May 2021 required the respondents to file opposing papers if they were opposing the application. Their grounds of opposition would have to be contained in the opposing affidavits.

ln Case No. HC2166/21 the applicant sought declaratory relief as follows:

“IT IS DECLARED THAT:

1. The first respondent (Judicial Service Commission) in failing to activate the provisions of section 180 of the Constitution of Zimbabwe Amendment (No.20) Act 2013 and/or the provisions of section 180 of the Constitution of Zimbabwe as amended by Constitution of Zimbabwe Amendment (No.2) Act 2021 (No.2 of 2021) diligently and without delay violated section 324 of the Constitution of Zimbabwe as amended.

2. The second respondent (Chief Justice Luke Malaba) cannot, by virtue of section 328(7) of the Constitution of Zimbabwe, as amended, benefit from the term limit extension as introduced by an amendment of section 186 by the Constitution of Zimbabwe Amendment (No.2) Act 2021.

3. As a consequence of 2 above, the second respondent shall vacate office as the Chief Justice of Zimbabwe on (sic) midnight of 15 May 2021.

4. Any action, conduct, act, or deed of second respondent post the 15th of May 2021, purportedly as Chief Justice of Zimbabwe, is null and void and of no force or effect.

5. Any attempt to continue in office by second Respondent as Chief Justice of Zimbabwe and/or any continuation in office by second respondent, purportedly as Chief Justice of Zimbabwe, violates applicants right of access to a court of law established by law and applicants right to protection of the law in accordance with section 69(4) and section 56(1) of the Constitution 2013 as amended.

6. The second respondent, in any event, can no longer be a judge of the Constitutional Court for more than 15 years in violation of section 186(1) of the Constitution 2013 as amended.

7. ln the alternative, section 14 of the Constitution of Zimbabwe Amendment (No.2) Act 2021 (No.2 of 2021) is invalid for violating section 56(3) of the Constitution 2013 and is accordingly struck down.

8. There shall be no order as to costs."

The relief set out in the first paragraph was not persisted with as it was predicated upon a misreading of the Constitutional provisions pertaining to the appointment of a Chief Justice in Zimbabwe.

The applicants were under the mistaken belief that the first respondent, the Judicial Service Commission (JSC) had the mandate to call for candidates to participate in an interview.

Section 180 of the Constitution provides that the Chief Justice is appointed by the President after consultation with the Judicial Service Commission (JSC).

The relief sought in paragraphs 2, 3, 4 and 5 is the same one being sought by the applicant in HC2128/21 save for the reference to section 69(4) of the Constitution.

The relief sought in paragraph 6 of the draft order was abandoned during argument. Also, the applicant did not make any submissions in support of the alternative relief being sought in paragraph 7 of the draft order.

We take it that this relief, seeking the declaration of invalidity in respect of section 13 (which was incorrectly referred to as section 14) of the Constitution of Zimbabwe Amendment (No.2) Act 2021, is not being persisted with.

Preliminarv Issues and Obiections

The parties raised preliminary issues and objections:...,.

The Alleged Absence of a Cause of Action

This objection is taken by the third respondent in HC2166/21…,. Although it is raised as an objection in limine, the submissions show that it is an argument on the merits of the matter.

The point being made is that the applicants in HC2166/21 failed to establish their entitlement to the right of access to the courts, as enshrined in section 69(3) of the Constitution 2013, and how the continued occupation of the office of Chief Justice by the second respondent violates the applicants rights as protected by section 69 and section 56 of the Constitution 2013.

This objection is therefore dismissed.

View Appeal
HMA06-19 : WILLMORE MAKUMIRE vs MINISTER OF PUBLIC SERVICE, LABOUR & SOCIAL WELFARE and ATTORNEY GENERAL OF ZIMBABWE
Ruled By: MAFUSIRE J

This judgment is given in default of appearance by the respondents. I am much concerned by the conduct of the officials from the office of the Attorney General, the second respondent herein.

This was an opposed application.

The respondents, through the Attorney-General, filed a notice of opposition. The record indicates, that, the notice of set down was served personally on one Talent Undenge, the law officer in the Attorney General's office who runs its civil division at Masvingo. But, on the day of hearing, not only was there no appearance by anyone from the Attorney General, but, also, there was not a word or any advice on what the respondents position was. Yet the relief sought by the applicant has far reaching consequences.

The relief sought by the applicant has far reaching consequences in that he wants a declaration of constitutional invalidity of section 93(5a) of the Labour Act [Chapter 28:01] and section 8(3) of the Labour (National Employment Code of Conduct) Regulations 2006, S.I.15 of 2006 (“the National Employment Code of Conduct”).

The applicant says that section 93(5a) of the Labour Act violates section 68(3) and section 69(2) of the Constitution; that, section 8(3) of the National Employment Code of Conduct violates the right to the protection of the law as guaranteed by section 56(1) of the Constitution and that both section 93(5a) of the Labour Act and section 8(3) of the National Employment Code of Conduct contravene section 134(b) of the Constitution.

As such, he wants his case referred to the Constitutional Court for final determination, allegedly in terms of section 167(3) of the Constitution.

In simple terms, section 93(5a) of the Labour Act, a recent amendment to the Labour Act (i.e. in 2015), empowers a labour officer to apply to the Labour Court for the enforcement of his or her determination against an employer.

Only the employer gets cited in such an application.

For that, the applicant says, the provision discriminates against employees, something contrary to section 68 and section 69 of the Constitution. These two provisions of the Constitution guarantee to every person the right to administrative justice and to a fair hearing.

As for section 8(3) of the National Employment Code of Conduct, the applicant wants it struck off on the ground that it contains a typographical error in that it refers to a non-existent provision. He says because of it, he became non-suited in his dispute against his employer. Yet, section 56(1) of the Constitution guarantees to everyone the right to equal treatment and protection before the law.

On the other hand, section 134(b) of the Constitution does not permit a statutory instrument (such as the National Employment Code of Conduct) to infringe or limit any of the rights and freedoms set out in the Declaration of Rights.

The Constitution is the supreme law of Zimbabwe. No other law can say something to the contrary and remain valid. The courts have the power and mandate to declare a statutory provision as being inconsistent with the Constitution. But, this function is not a light matter. It is not a power that is exercised arbitrarily. Laws are made by Parliament, a legislative body made up of two Houses. The men and women who sit in them take time to scrutinise, debate, and critique a law before it is passed. It is only in cases where the court is completely satisfied that a particular law is at war with the Constitution that it will strike it down.

In this case, with the respondents in default, I could have simply granted a default judgment and announced it ex tempore on the day of hearing. But, given what is at stake, I considered it prudent to reserve my decision and think through it properly, moreso as the applicant was not represented.

Even though it was evident someone with a glimpse of legal knowledge was advising and drafting the papers for the applicant behind the scenes, it was not that easy to quite grasp the factual matrix of the dispute and its trajectory from the moment it arose.

I ended up asking the applicant to file supplementary papers on what exactly had transpired, both at the workplace and in the labour “courts.”

The matter is an employment dispute. It has a chequered past.

The dispute erupted at the workplace. It bobbed there for a while. Eventually, it bounced into the chambers of the Labour Officer. From there, it escalated to the Labour Court. After that, it became a game of ping pong. The matter was thrown back to the labour office; back to the Labour Court; back to the labour office again; back to the Labour Court; back to the workplace; back to the labour office; back to the Labour Court; and, finally to the Supreme Court.

The superior court did not decide the matter. The applicant felt unstuck. He finally came to the High Court.

I heard the applicant on 27 August 2018. He tried his best. But, at the end, I was none the wiser. The employer was not cited as a party. As said already, the Attorney-General was in default. He and the first respondent had been barred anyway for failure to file heads of argument in accordance with Order 32 Rule 238(2) and (2a) of the Rules of this Court.

But, in a matter with such a rugged past, and given the nature of the relief sought, I could do with some properly reasoned arguments and a graceful presentation. Yet, the applicant is entitled to administrative justice in terms of section 68 of the Constitution.

Rule 238(2b) of the High Court Rules says, where a respondent fails to file heads of argument timeously he or she is barred. Thereafter, the court or judge may deal with the matter on the merits or direct that it be set down for hearing on the unopposed roll.

I opted to hear the matter on the merits.

The facts were these:

In the beginning, the applicant was an employee of a trade union, the Zimbabwe Educational Scientific, Social and Cultural Workers Union. He was a Regional Officer based at Masvingo. He was dismissed for misconduct. The dismissal followed a disciplinary process in terms of the National Employment Code of Conduct.

The applicant wanted to appeal the dismissal. He said he faced a dilemma. The dilemma stemmed from what he perceived to be a typographical error in the National Employment Code of Conduct.

Evidently, there is such an error in those Regulations.

Section 8 of the National Employment Code of Conduct governs appeals at, and from the workplace. It provides for internal appeal structures at the work-place in the form of an Appeals Officer or Appeals Committee, depending on the size of the establishment or work place. Such internal appeal structures should not exceed two appeal authorities.

In terms of section 8(3) of the National Employment Code of Conduct, a person aggrieved by a decision can appeal, in writing, and within seven working days, to the Appeals Officer or Appeals Committee.

There is a problem with this sub-section.

It is imprecise. It does not say whose decision is appealable to the Appeals Officer or Appeals Committee. It says it is a decision “…, made in terms of section (2)…,.”

But, section (2) does not exist.

The substantive section 2 is an interpretation provision. It has nothing to do with disciplinary proceedings. Disciplinary proceedings, such as would lead to the termination of employment, are governed by section 6 of the National Employment Code of Conduct. So, section 2 cannot be the provision section 8(3) of the National Employment Code of Conduct purports to refer to.

At any rate, it is a technique of legislative drafting not to use brackets for numerals representing substantive, standalone sections in statutes.

So, if the reference in section 8(3) of the National Employment Code of Conduct cannot be to a substantive section 2, one would assume it is meant to refer to section 8(2) of the National Employment Code of Conduct. But, again, that cannot be. Section 8(2) does not deal with disciplinary processes. It is the one that provides for the internal appeal structures that should not exceed two authorities.

The applicant says, faced with such a dilemma, he looked elsewhere. He discovered that section 8(6) of the National Employment Code of Conduct is another provision dealing with appeals. That provision says a person who is aggrieved by a decision or manner in which an appeal is handled by the employer or the Appeals Officer or Appeals Committee may refer the case to a Labour Officer or an Employment Council within seven days.

The applicant says he considered it was section 8(6) of the National Employment Code of Conduct that applied to his situation because section 8(3) referred to a non-existent provision.

At any rate, his employer had no appeal structures as envisaged by the National Employment Code of Conduct. He referred his case to the Labour Officer the same day that he received the dismissal penalty.

That was in March 2015.

In terms of section 8(7) of the National Employment Code of Conduct, a Labour Officer, to whom a matter is referred in terms of section 8(6), can dispose of it in one of several ways set out in section 93 of the Labour Act. Before this section was amended in 2015, these ways included conciliation or a reference to compulsory arbitration. The Labour Officer had thirty days to dispose of the matter. It was through the amendment in 2015 that the Labour Officer was now clothed with the power to approach the Labour Court as aforesaid.

After the applicant had referred his dispute, the Labour Officer, for one reason or other, did not dispose of it within the prescribed thirty days. Two months after the expiry of the thirty days, the applicant applied to the Labour Court, asking it to dispose of his appeal in terms of section 93(7) of the Labour Act.

That was in May 2015.

Section 93(7) of the Labour Act is the provision that allows any party to a dispute to approach the Labour Court to dispose of it where a Labour Officer has failed to settle it through conciliation and has issued a Certificate of No Settlement, or has, for any reason, refused to issue such a certificate.

The Labour Court, four months later, referred the matter back to the Labour Officer with instructions to appoint an arbitrator to dispose of the applicant's appeal.

That was in September 2015.

That did not happen, apparently for two reasons:

(i) Firstly, the first respondent was phasing out the system of external arbitrators. As such, the applicant was advised, that, no arbitrator could be appointed in line with the directive from the Labour Court.

(ii) Secondly, the Labour Act had just been amended as aforesaid.

Among others, the said section 93(5a) of the Labour Act had just been inserted. Disputes of right, as opposed to disputes of interest, would now be resolved in accordance with the new provisions. Among other things, once a Labour Officer made a finding of unfair labour practice against an employer, he or she would have to approach the Labour Court for his or her decision to be confirmed.

The matter was referred back to the Labour Court, by a Labour Administration Officer, who requested for directions.

In March 2016, the Labour Court gave such directions.

It directed that the matter was to be heard by a Labour Officer in terms of section 93(5)(c) of the Labour Act. This is the provision that empowers a Labour Officer to find whether or not an employer is guilty of an unfair labour practice. If he or she makes such a finding, he or she can, among other things, order the cessation of the unfair labour practice and direct the payment of moneys and/or damages.

With the newly introduced section 93(5a) of the Labour Act, the Labour Officer is then to approach the Labour Court for confirmation of his or her decision.

The Labour Officer eventually set to hear the matter in line with the directive from the Labour Court.

In May 2016, he gave his ruling. He made a finding that he had no jurisdiction to determine the appeal. His reason was, that, the first time the applicant had referred his appeal to the Labour Officer (in March 2015) he had erred. He said in terms of section 8 of the National Employment Code of Conduct, no appeal lies to the Labour Officer from a decision of a disciplinary authority at the workplace. It is only an appeal, decision, or the conduct of an appeal authority that may be referred to the Labour Officer.

So, in the end, the Labour Officer held, that, he had no jurisdiction to determine the appellant's appeal because it was not an appeal against an appeal decision, but an appeal against the decision of a disciplinary authority in the first instance.

Before this ultimate conclusion, the Labour Officer had made the observation, that, instead of appealing to the Labour Officer in terms of section 8 of the National Employment Code of Conduct, as he had done, the applicant ought to have appealed straight to the Labour Court, allegedly in terms of section 92D of the Labour Act.

Section 92D of the Labour Act is the one that governs appeals to the Labour Court that are not provided for elsewhere in the Labour Act. It says a person who is aggrieved by a determination made under an employment code, may appeal to the Labour Court in the manner and time prescribed.

In September 2016, the Labour Court confirmed the ruling of the Labour Officer.

But, the applicant had applied to that court for condonation for late noting of appeal. Condonation was refused “…, for failure to exhaust local forum.”

The applicant went back to the workplace. He said heeding what the Labour Officer had said about appeals lying to them only from an appeal decision by, or conduct of, an appeals authority of the employer, he filed an appeal to the Appeals Officer/Appeals Committee a day after receiving the Labour Court's decision.

He also sought condonation for the late noting of the appeal. But, without referring it to the Appeals Officer or Committee proper, the employer, through the General Secretary, acting on external legal advice, dismissed the appeal and the request for condonation on the basis that there was no provision for an application for condonation in the National Employment Code of Conduct.

That was in October 2016.

The applicant appealed to the Labour Officer. He lost. The conclusion reached by the employer's General Secretary was upheld.

The Labour Officer took his decision to the Labour Court for confirmation, purportedly in line with the new section 93(5a) of the Labour Act.

The Labour Court declined to do so on the basis, that, the Labour Officer had an inherent power to hear an application for condonation which he should have exercised and that the decision by the employer, which the Labour Officer had wrongly upheld, was irregular in that it had been made by a fellow employee supplanting an Appeals Committee.

The Labour Court referred the matter back to the workplace and directed the employer to set up an appeals structure for the determination of the applicant's appeal within thirty days, or such extended period as might be granted. The Labour Court also directed, that, in the event that the employer failed to hear the appeal as directed, then, the applicant would automatically be reinstated without loss of salary and benefits while the parties might be taking their case to any next level.

That was in May 2017.

The employer was aggrieved by the decision of the Labour Court. It appealed to the Supreme Court. It took a point in limine, that, by section 93(5a) of the Labour Act, only when a Labour Officer has ruled against an employer is he or she required to approach the Labour Court for confirmation of his or her decision, not, as was the case in this matter, where the Labour Officer has ruled against the employee.

The applicant said he conceded the point in limine. He presumed the Supreme Court would uphold it because it had done so in a previous case where the same point had been raised.

The applicant felt he was back to nowhere.

His appeal was never determined on the merits.

He felt the culprit was section 93(5a) of the Labour Act that allows approaches to the Labour Court by a Labour Officer only where he or she rules against the employer, but not where he or she rules against the employee.

The employee who loses before a Labour Officer has nowhere else to go, whereas an employer who loses before the same Labour Officer is actually and automatically guaranteed another hearing before a court.

The applicant also felt, that, the ambiguity brought about by the error in section 8(3) of the National Employment Code of Conduct blocked his right of access to the courts.

He then turned to the High Court for an order of invalidity against the two offending provisions.

Interestingly, in their notice of opposition, the respondents agreed with the applicant in relation to section 93(5a) of the Labour Act. They said:

“Respondent concedes to the challenges against 93(5a) of the Labour Act [Chapter 28:01] as amended and has since sought to repeal the provision in its current Labour Act Amendment Bill. I however deny that section 8(3) of Statutory Instrument 15 of 2006 violates the Applicant's rights for the reasons advanced in my paragraphs 9 and 10.”

But, despite their denial in regards to section 8(3) of the National Employment Code of Conduct, the respondents essentially conceded the error. They said:

“Indeed, the said section makes reference to a section 2 which is not there; but, however, a departure from the ordinary grammatical interpretation of the section will lead to a reasonable conclusion that the section being referred to is section 6.”

Arguing that a diligens paterfamilias applying their mind to the intention of the Legislature would have come to the logical conclusion that section 8(3) of the National Employment Code of Conduct meant to refer to section 6, the respondents said the remedy sought by the applicant was outrageous and should therefore be dismissed with costs.

Justice must not only be done. It must also be seen to be done.

The respondents openly admit inherent problems or errors in pieces of legislation made by, and administered by them.

In relation to section 93(5a) of the Labour Act, the respondents promised repeal. That has not happened.

In relation to section 8(3) of the National Employment Code of Conduct, the respondents expressly admit the error but urge the applicant to resort to some tenet of construction to unravel what they meant to say.

Yet, in his quest for justice, the applicant has, for more than three years, been shunted from pillar to post by the administrative and adjudication structures under their purview. These structures have differed in their interpretation of the impeached provisions.

What is more, as the respondents are mulling getting rid of section 93(5a) of the Labour Act, the Supreme Court, in an unrelated case, the judgment of which was delivered at about the same time the applicant was filing this application with this court, has impugned the provision and urged the Legislature to have a look at it.

This was in Drum City (Pvt) Ltd v Garudzo SC57-18.

The superior court noted, that, section 93(5a) and (5b) of the Labour Act do not empower the Labour Court to confirm a draft ruling of a Labour Officer made against an employee. The employee is excluded from the confirmation proceedings. Yet, he or she has a direct and substantial interest in those proceedings.

He or she has a right to be heard.

The superior court further said, that, a procedure that says a Labour Court can sit for the confirmation or non-confirmation of a ruling by a Labour Officer, in the absence of an employee, who is an interested party, is an irregularity and a travesty of justice.

The court noted a myriad of problems posed by such a procedure, not least:

(i) The fact that even where the ruling by the Labour Officer is in favour of the employee, but is not confirmed by the Labour Court, the employee who is affected by the non-confirmation cannot appeal. Conversely, where the Labour Court confirms the ruling, the employer may wish to appeal to the Supreme Court, but, the employee is necessarily absent. Yet the outcome at the Supreme Court may be adverse to the employee.

(ii) The fact that even where the Labour Court confirms the ruling against the employee and he or she wants to enforce it by execution, the writ cannot be in his or her name because that name appears nowhere in the final orders.

As a way around the absurdities created by section 93(5a) of the Labour Act, the Supreme Court suggested, that, the employee should always be joined as a party to the confirmation proceedings before the Labour Court. However, the superior court also urged the Legislature to seriously reconsider the provision - exactly the same thing the respondents herein have promised they are doing.

Therefore, it seems obvious that section 93(5a) of the Labour Act is impeachable. The respondents concede it. The Supreme Court virtually confirms it.

The question of the declaration of constitutional invalidity of section 93(5a) of the Labour Act and section 8(3) of the National Employment Code of Conduct was not before the Supreme Court.

It is squarely before me now.

I hold that section 93(5a) of the Labour Act is ultra vires section 56(1) and (3) of the Constitution that guarantee the equality of all persons before the law, and the right not to be treated in an unfairly discriminatory manner on the grounds of, inter alia, economic or social status.

It also violates section 68 of the Constitution that guarantees the right to administrative justice that is, inter alia, lawful, efficient, reasonable, impartial and both substantially and procedurally fair.

The applicant says he seeks the declaratur in terms of section 14 of the High Court [Chapter 7:06].

But, in terms of this provision, a declaratur, it is not sought by anyone and anyhow; otherwise, any public busybody or watchdog whose hobby it is to surf the legislative landscape for any statutory provisions mis-aligned with the Constitution would clog the judiciary with endless suits for declarations of constitutional invalidity.

A mover for a declaratory order, under section 14 of the High Court Act, must demonstrate more than mere academic interest. The court does not decide abstract or hypothetical questions: see Adbro Investments Co. Ltd v Minister of the Interior & Ors 1961 (3) SA 283 (T)…, and Johnsen v Agricultural Finance Corp 1995 (1) ZLR 65 (S). He or she must show the existence of some tangible and justifiable advantage to himself.

In terms of section 14 of the High Court Act, a person who qualifies to move for a declaratory order is one who has an interest in having his or her existing, future or contingent right or obligation determined even if he or she cannot claim any relief consequential upon such determination…,.

In the draft order, the applicant does not seek the determination of existing or future or contingent rights. He does not seek determination of any rights at all. His woes with his employer are all in the past now.

I do not underrate them. It is only because he has been importunate that the matter is now before this court.

But, under section 14 of the High Court Act, one does not seek a declaratur for the determination of rights existing in the past.

I am mindful that section 14 of the High Court Act does not require that one who seeks a declaratory order should claim any relief consequent upon the determination by the court. But, at least, he or she must have an existing or future or contingent right that the court should, or will determine.

It seems the undisclosed lawyers handling the applicant behind the scenes eventually wisened up to this pitfall. They filed heads of argument, even though as a “self-actor” the Rules do not require the applicant to file any. In the very last paragraph, it is submitted, that, in addition to the relief sought in terms of the draft order, the applicant should be granted a further remedy as follows:

(i) That, in the case of the impugned section 8(3) of the National Employment Code of Conduct, the applicant should be granted the right to file an appeal against the decision of the disciplinary authority to the internal appeals authority; or

(ii) That, in the case of section 93(5a) of the Labour Act, the applicant should have the right to appeal against the ruling by the Labour Officer to the Labour Court.

I consider that the applicant's request in the heads of argument brings him within the purview of section 14 of the High Court Act. His claim in the draft order ceases to be merely academic.

But, even if I should be wrong on this, I consider that section 85 of the Constitution has widened the scope under which a declaratur may be sought if it is in relation to the enforcement of fundamental human rights and freedoms under Chapter 4 Part 4 of the Constitution.

In this case, the rights the applicant alleges have been infringed in relation to himself fall under this part of the Constitution. They are the right to equal protection before the law and the right not to be discriminated against (section 56 of the Constitution); the right to administrative justice (section 68 of the Constitution) and the right of access to the courts or some other tribunals (section 69 of the Constitution).

Section 85 of the Constitution reads:

“85 Enforcement of Fundamental Human Rights and Freedoms

(1) Any of the following persons, namely —

(a) Any person acting in their own interests;

(b) Any person acting on behalf of another person who cannot act for themselves;

(c) Any person acting as a member, or in the interests, of a group or class of persons;

(d) Any person acting in the public interest;

(e) Any association acting in the interests of its members; is entitled to approach a court, alleging that a fundamental right or freedom enshrined in this Chapter has been, is being or is likely to be infringed, and the court may grant appropriate relief, including a declaration of rights and an award of compensation.”…,.

Thus, a right existing in the past which an applicant can show was infringed in relation to themselves can support a claim for a declaratur.

However, my conclusion above is only in relation to section 93(5a) of the Labour Act.

I am not satisfied that it was really the typing error in section 8(3) of the National Employment Code of Conduct that led the applicant to adopt the course that he did.

Despite that error, it is evident, even as presently worded, that the reference of a matter to a Labour Officer that section 8(3) envisages, is not from a decision of a disciplinary authority at the first instance. It is from a decision or conduct of an Appeals Authority on appeal.

It was wrong for the applicant to invoke section 8(6) of the National Employment Code of Conduct and assume it applied to his case.

In the final analysis, the applicant, having sought no order as to costs, the following order is issued:

1. It is hereby declared that section 93(5a) of the Labour Act [Chapter 28:01] is in conflict with section 56(1) and (3); section 68(1) and section 69(3) of the Constitution of Zimbabwe and is therefore invalid.

2. The declaration of constitutional invalidity in paragraph (1) above may be referred for final determination by the Constitutional Court of Zimbabwe in terms of section 175 of the Constitution and the Rules of that Court.

3. Subject to paragraph (2) above, the applicant is hereby granted the right to appeal to the Labour Court, as soon as practicable, the decision of the Labour Officer/Designated Agent, E Muzvidziwa, Esquire, handed down on 9 December 2016.

4. There shall be no order as to costs.

Appealed
SC75-17 : EDWARD MADYAVANHU vs REGGIE SARUCHERA and GRANT THORNTON CAMELSA CHARTERED ACCOUNTANTS (ZIMBABWE) and CAIRNS FOODS LTD
Ruled By: GWAUNZA JA, GUVAVA JA and ZIYAMBI AJA

The appellant wrote to the Registrar requesting the reasons for the order. These are they.

The facts of this case are as follows:

The appellant was formerly employed by the third respondent. Sometime in 2004, he obtained judgment in the Labour Court awarding him damages for unlawful termination of employment. The quantum of damages that he was granted came to ZW$26,076,252= after quantification by the Labour Court.

However, before the third respondent could make any payment, it was placed under judicial management.

The first respondent, who works for the second respondent, was appointed the Judicial Manager. The appellant then filed, with the Master of the High Court, a claim for his debt to be placed on the list of the third respondent's other creditors.

The claim was provisionally accepted but later revoked at the instance of the first respondent.

This was because, while the appellant's debt was denominated in Zimbabwean dollars, he had lodged his claim in United States dollars amounting to USD3,057,199= without an order of court converting his Zimbabwean dollar claim to United States dollars.

He had, it seemed, done the conversion of the amount himself.

The appellant then approached the court a quo seeking to be reinstated on the list of creditors. The specific order that he sought read as follows:

It is ordered that:

“1. Applicant's claim be and is hereby reinstated to the creditors of third respondent.

2. Within 48 hours of the issuance of this order, fourth respondent avails to applicant the payment schedule for third respondent's judicial management creditors.

3. On a jointly and severally basis (sic) and within 21 days of the issuance of this order, first, second, and third respondents pay applicant:

(a) The full amount of his claim in accordance with the schedule of payment of creditors of the same class.

(b) Interest at the prescribed rate on all overdue payments.

(c) First, second, and third respondent pay costs of suit.”

A point in limine was raised by the first respondent, on behalf of the second respondent, to the effect, that, there was no legal basis for the appellant to sue the latter as this was done solely for the reason that the first respondent worked for the second respondent.

The court a quo upheld the point in limine and also dismissed the whole application on the merits for the following reasons;

(a) At the time the appellant filed the application before the court a quo, the third respondent was no longer under judicial management, therefore, the relief he sought could no longer bind the first respondent because he ceased to be the third respondent's judicial manager the moment it was removed under judicial management; and

(b) The claim lodged by the appellant, before the Master of the High Court, was an amount which had not been properly converted at law, therefore, the court could not direct the Master to reinstate the claim.

Aggrieved by the court a quo's decision, the appellant approached this Court, on appeal, seeking the following relief;

“It is prayed that;

1. The High Court judgment be set aside.

2. Leave be granted for registration with the High Court in Harare, for purposes of enforcement, my claim of USD3,057,199 against third respondent which was proved and admitted in the creditors meeting held on 13 February 2013 pursuant to the company's judicial management and has never been set aside or varied.

3. Interest at the prescribed rate be paid on the claim amount from 3 November 2015, the day following the date of cancellation of the final judicial management order, to the date of final settlement.

4. The respondents pay the whole litigation cost for this matter.”

In their heads of argument, the respondents raised three points in limine with regards to the relief sought:

(i)...,.

(ii)...,.

(iii) Thirdly, the respondents argued, that, the relief sought was 'fatally defective' in that the appellant sought an order for costs against all the respondents but did not seek any substantive relief against the first and second respondents....,.

On the point that he was not seeking any substantive relief against the first two respondents except for costs, the appellant argued, that, it is clear from his papers that the first two respondents were liable to him under delict for the third respondent's failure to pay his debt....,.

The Court found there was merit in the respondents points in limine...,.

Finally, and as correctly observed by the respondents, the appellant's claim for costs against parties from whom no substantive relief was sought was incompetent and therefore not to be sustained.

In this respect, the court notes, that, the appellant, in his draft order, did not seek the setting aside and substitution of the High Court's decision upholding the point in limine concerning the misjoinder to the proceedings of the second respondent.

That part of the court a quo's decision therefore stands unchallenged, with the result, that, the second respondent was, in reality, wrongly cited in this appeal.

It follows, that, the order of costs sought against it is incompetent.

In any case, the court finds no merit in the appellant's submission, that, the second and third respondents were liable to him 'in delict' and are therefore properly sued for costs.

The proceedings a quo were clearly not delictual in nature and the appellant's claim for costs cannot, by that token, be founded on them.

Appealed
SC75-17 : EDWARD MADYAVANHU vs REGGIE SARUCHERA and GRANT THORNTON CAMELSA CHARTERED ACCOUNTANTS (ZIMBABWE) and CAIRNS FOODS LTD
Ruled By: GWAUNZA JA, GUVAVA JA and ZIYAMBI AJA

On 21 July 2016, the High Court dismissed the appellant's chamber application for the reinstatement of his claim on the third respondent's creditors list. Aggrieved, the appellant filed this appeal, which we dismissed with costs on 6 July 2017.

The appellant wrote to the Registrar requesting the reasons for the order. These are they.

The facts of this case are as follows:

The appellant was formerly employed by the third respondent. Sometime in 2004, he obtained judgment in the Labour Court awarding him damages for unlawful termination of employment. The quantum of damages that he was granted came to ZW$26,076,252= after quantification by the Labour Court.

However, before the third respondent could make any payment, it was placed under judicial management.

The first respondent, who works for the second respondent, was appointed the Judicial Manager. The appellant then filed, with the Master of the High Court, a claim for his debt to be placed on the list of the third respondent's other creditors.

The claim was provisionally accepted but later revoked at the instance of the first respondent.

This was because, while the appellant's debt was denominated in Zimbabwean dollars, he had lodged his claim in United States dollars amounting to USD3,057,199= without an order of court converting his Zimbabwean dollar claim to United States dollars.

He had, it seemed, done the conversion of the amount himself.

The appellant then approached the court a quo seeking to be reinstated on the list of creditors. The specific order that he sought read as follows:

It is ordered that:

“1. Applicant's claim be and is hereby reinstated to the creditors of third respondent.

2. Within 48 hours of the issuance of this order, fourth respondent avails to applicant the payment schedule for third respondent's judicial management creditors.

3. On a jointly and severally basis (sic) and within 21 days of the issuance of this order, first, second, and third respondents pay applicant:

(a) The full amount of his claim in accordance with the schedule of payment of creditors of the same class.

(b) Interest at the prescribed rate on all overdue payments.

(c) First, second, and third respondent pay costs of suit.”

A point in limine was raised by the first respondent, on behalf of the second respondent, to the effect, that, there was no legal basis for the appellant to sue the latter as this was done solely for the reason that the first respondent worked for the second respondent.

The court a quo upheld the point in limine and also dismissed the whole application on the merits for the following reasons;

(a) At the time the appellant filed the application before the court a quo, the third respondent was no longer under judicial management, therefore, the relief he sought could no longer bind the first respondent because he ceased to be the third respondent's judicial manager the moment it was removed under judicial management; and

(b) The claim lodged by the appellant, before the Master of the High Court, was an amount which had not been properly converted at law, therefore, the court could not direct the Master to reinstate the claim.

Aggrieved by the court a quo's decision, the appellant approached this Court, on appeal, seeking the following relief;

“It is prayed that;

1. The High Court judgment be set aside.

2. Leave be granted for registration with the High Court in Harare, for purposes of enforcement, my claim of USD3,057,199 against third respondent which was proved and admitted in the creditors meeting held on 13 February 2013 pursuant to the company's judicial management and has never been set aside or varied.

3. Interest at the prescribed rate be paid on the claim amount from 3 November 2015, the day following the date of cancellation of the final judicial management order, to the date of final settlement.

4. The respondents pay the whole litigation cost for this matter.”

In their heads of argument, the respondents raised three points in limine with regards to the relief sought:

(i) Firstly, they contended, that, the appellant failed to pray for the success of his appeal in this court hence the relief sought was incompetent.

(ii) Secondly, they argued that the relief which the appellant was seeking on appeal, before this Court, was different from that which he sought in the court a quo.

(iii) Thirdly, the respondents argued, that, the relief sought was 'fatally defective' in that the appellant sought an order for costs against all the respondents but did not seek any substantive relief against the first and second respondents.

In response to these points in limine, the appellant, in his heads of argument, argued, that, there is no provision in the Rules which requires a party to expressly state whether or not the appeal should succeed as the judges can themselves simply state that the appeal succeeds or not.

He explained that the intention that the appeal succeeds is apparent from the very act of appealing itself.

With regards to the allegation that he now seeks what he did not seek in the court a quo, the appellant's position was that only the method of enforcement had changed but he still sought the same relief.

On the point that he was not seeking any substantive relief against the first two respondents except for costs, the appellant argued, that, it is clear from his papers that the first two respondents were liable to him under delict for the third respondent's failure to pay his debt.

The Court found there was merit in the respondents points in limine, in particular, that, the appellant's Notice of Appeal did not satisfy the provisions of Rule 29 of the Supreme Court Rules. This Rule provides that;

“29 Entry of Appeal

(1) Every civil appeal shall be instituted in the form of a notice of appeal signed by the appellant or his legal representative, which shall state —

(a) The date on which, and the court by which, the judgment appealed against was given;

(b) If leave to appeal was granted, the date of such grant;

(c) Whether the whole or part only of the judgment is appealed against;

(d) The grounds of appeal in accordance with the provisions of Rule 32;

(e) The exact nature of the relief which is sought;

(f) The address for service of the appellant or his attorney;”

The wording of the provision shows that the Rule is mandatory in nature, meaning, that, any document labelled 'Notice of Appeal' must comply with it in order to be a valid notice of appeal.

The information required in terms of this provision must be clearly set out even where it may be obvious or deducible from the given text of the grounds of appeal.

The purported Notice of Appeal in casu, in the court's view, did not meet the requirements set out in the mandatory provision cited. It also fell short in other respects as indicated below.

The respondents are correct in the submission, that, the appellant's failure to pray for the success of the appeal in this court, before the judgment a quo could be set aside and substituted, constitutes a serious defect in the Notice of Appeal.

Rule 29(1)(e) of the Supreme Court Rules is specific in its language and requires that the relief sought be exact and competent so that the court is left in no doubt as to what exactly the appellant seeks.

In Ndlovu v Ndlovu and Another SC133-02, MALABA JA…, dealing with a similarly defective Notice of Appeal, held that;

“The exact nature of the relief sought was not stated. What was prayed for in the notice of appeal was that the judgment of the court a quo be dismissed with costs. It is the appeal which is dismissed or allowed. If the appeal is allowed, the judgment or decision appealed against is then set aside and a new order substituted in its place. In this case, it was not known what order the appellants wanted this Court to make in the event the appeal succeeded.”

These words are fully applicable to the circumstances of this case.

The respondents point in limine in this respect is accordingly upheld.

The second point in limine raised by the respondents, concerning new relief being sought on appeal by the appellant, also has merit.

As correctly observed, the appellant approached the court a quo seeking to reinstate his claim on the third respondent's list of creditors in the office of the Master of the High Court.

The application a quo having failed, the appellant, on appeal, now sought an order granting him leave to register his claim for payment of USD3,057,199= by the third respondent, for purposes of enforcement.

This request pre-supposes, quite erroneously, that the High Court made an order reinstating his claim on the creditors list. This not having happened, the relief now sought is not one that is open to this Court to grant.

An Appeal Court, by nature, is one that considers and assesses the correctness or otherwise of the decision of a lower court on any particular issue. Where no such issue is considered by an inferior court, it follows, generally, that, there is nothing for the Appeal Court to determine.

It is in the appellant's interest to fully appreciate this point, which was aptly captured in Dynamos Football Club (Pvt) Ltd & Anor v ZIFA & Ors 2006 (1) ZLR 346 (S) 355.

MALABA JA…, in that case, held, that, generally a party cannot seek, on appeal, relief that they did not seek in the lower court: see also Goto v Goto 2001 (2) ZLR 519 (S) where the court held that it was not open to the appellant in that case, in the absence of an amendment to her declaration, to claim on appeal something which she did not claim in the court a quo.

The exception to this rule was outlined in Dynamos Football Club (Pvt) Ltd & Anor v ZIFA & Ors 2006 (1) ZLR 346 (S) 355 where it was held as follows;

“There are, however, other decisions to the effect, that, the Appellate Court has a discretion, in appropriate cases, to grant relief claimed for the first time on appeal if it is satisfied that all the facts on which the court of first instance would have decided the matter had it been raised with it were available for its consideration and such facts as are essential to the decision are common cause or well-nigh incontrovertible: see Workmen's Compensation Commissioner v Crawford and Anor 1987 (1) SA 290 at 307G; Donelly v Barclays National Bank Ltd 1990 (1) SA 375 at 380I-381A.”

When this is applied to the facts of this matter, it is evident that the requirements listed, which would have entitled the appellant to seek the relief in question for the first time on appeal, have not been met.

Related to this issue, this Court finds, as did the court a quo, that, the amount claimed by the appellant was not converted into US dollars by a court of competent jurisdiction.

It was not enough for the appellant to attempt a conversion on his own, using a rate that was not known and coming up with a figure which no court had endorsed. Consequently, the appellant (a quo) failed to establish a proper basis for the inclusion of the US dollar amount that he sought, on the third respondent's list of creditors.

The judgment of the court a quo cannot, in this respect, be faulted.

Finally, and as correctly observed by the respondents, the appellant's claim for costs against parties from whom no substantive relief was sought was incompetent and therefore not to be sustained.

In this respect, the court notes, that, the appellant, in his draft order, did not seek the setting aside and substitution of the High Court's decision upholding the point in limine concerning the misjoinder to the proceedings of the second respondent.

That part of the court a quo's decision therefore stands unchallenged, with the result, that, the second respondent was, in reality, wrongly cited in this appeal.

It follows, that, the order of costs sought against it is incompetent.

In any case, the court finds no merit in the appellant's submission, that, the second and third respondents were liable to him 'in delict' and are therefore properly sued for costs.

The proceedings a quo were clearly not delictual in nature and the appellant's claim for costs cannot, by that token, be founded on them.

It is noted, that, a number of matters have been struck off the roll by this Court on the ground that the relief sought was not exact in nature, and that, as a result, the related Notice of Appeal was incurably defective: see Ndlovu v Ndlovu and Another SC133-02.

However, in this case, the court found, that, the appeal was not only incurably defective but wrong and bad in law. The appeal could therefore not properly be struck off the roll because the appellant had no avenue, legally or procedurally, to follow in case he was inclined to bring the same appeal before this Court.

It is emphasized, in this respect, that, the appellant could not have secured the relief that he sought in the court below from the first respondent, for the simple reason, that, he had ceased to be the Judicial Manager of the third respondent, which, in its turn, had ceased to be a company under judicial management.

There was, therefore, no longer a list on which the appellant's claim could be included.

View Appeal
HH236-18 : MFUNDO MLILO vs THE PRESIDENT OF THE REPUBLIC OF ZIMBABWE
Ruled By: MANGOTA J

This is an ordinary opposed application which the applicant turned into an urgent one. He did so through a letter which he addressed to the Registrar of this court. The letter is dated 20 February 2018. It reads, in part, as follows:“2. As you will be aware, the application, among ...

“2. As you will be aware, the application, among other things, seeks to challenge the constitutionality of the Presidential Powers (Temporary Measures) Act [Chapter 10:20] amended to Electoral Act Regulations 2016 published in Statutory Instrument 117/2017.

3. As you are aware of, the regulations we (sic) enacted on 15 September 2017 and therefore they will naturally expire by 15 March 2017.

4. In order to avoid a situation where arguments will be academic on aspects of the regulations, and given the fact that both parties have filed heads of argument in this matter, we seek that the matter be determined urgently.”…,.

It is evident, from the foregoing, that, the applicant was rushing against time.

However, the application was, in my view, not urgent. It was more of self-created urgency than it was urgent in the sense which the rules of court contemplate.

The Regulations were published on 15 September 2017. The applicant did not apply, as he should have done, shortly after the publication of the Regulations. He only filed his application some thirty-five (35) days after the event. He filed it on 20 October 2017. He did not explain the cause of the delay.

The form which he employed showed, that, the application should not have been enrolled on applications which fall under Rule 244 of the High Court Rules 1971. It did not have a certificate from a legal practitioner. It did not give reasons for its urgency. It was filed under Form 29 instead of under Form 29B of the rules of this court.

Urgency was, therefore, created by the applicant himself.

He suddenly became aware of the date of the expiration of the Regulations. He, accordingly, requested the Registrar to draw the court's attention to his predicament, and, in the process, he moved the court to hear the application before the period of the expiration of the Regulations.

The applicant used the Regulations as his point of entry into the substance of the application.

The application has less business with the Regulations. It, in fact, has more business with the constitutionality or otherwise of the Presidential Powers (Temporary Measures) Act [Chapter 10.20].

Paragraph 2 of the applicant's letter of 20 February 2018 is relevant in the mentioned regard.

He states, in the same, that, the application seeks to challenge the constitutionality of the Presidential Powers (Temporary Measures) Act [Chapter 10:20].

This, in my view, is the thrust of the application....,.

I have already stated, in the foregoing portions of this judgment, that, the Presidential Powers (Temporary Measures) Amendment of Electoral Act Regulations, S.I.117 of 2017 are not the subject of this application.

The subject, from the perspective of the applicant, is the Presidential Powers (Temporary Measures) Act itself.

If the Regulations were the issue, the applicant would have invoked section 3(1)(b) of the Presidential Powers (Temporary Measures) Act as read with subsection (2) of the same. He would, in other words, have objected to the publication of the Regulations when the President made his intention known to him, and others, through the Government Gazette Extraordinary, Volume XCV No.61.

The fact that the applicant did not object to the publication of the Regulations, at the time that the President's intention appeared in the Gazette, shows his real intention.

The intention is that he wanted to use the Regulations, after they had been published, as his entry point into criticizing the substance of the Presidential Powers (Temporary Measures) Act.

The observed matter, therefore, takes the discourse to the substantive legality or otherwise of the Presidential Powers (Temporary Measures) Act.

SC86-14 : W. CHOMUREMA and E. MUZOKOMBA vs TELONE
Ruled By: GWAUNZA JA

In chambers in terms of Rule 5 of the Rules of the Supreme Court 1964.

The applicants are appearing before a judge of this Court for the third time, their earlier applications having been dismissed on procedural grounds.

Essentially, in this, and the previous two applications, the applicants are requesting this Court to give to them leave, which they perceive to have been denied by the Labour Court, to file a belated appeal against their dismissal from employment with the respondent.

In this quest, the two have made tracks back and forth between the Labour Court and this Court, with the result that the matter is now hopelessly entangled in procedural niceties.

It became evident to me that this 'tangle' had to be unravelled first before a way forward could be ascertained. This is particularly so given that the legally unrepresented, but determined, applicants are pressing to have their day in court, albeit, they complicated matters further by filing lengthy and repetitive submissions with each application they brought before both the courts.

Accordingly, after hearing the parties, and, in order to enable me to properly determine the matter, I directed them to re-construct the record and arrange all the applications, and other papers, in the order they had been filed. I indicated I would then peruse the record and give any directions that may be necessary to unlock the process and have the matter move forward.

This would, at the same time, point the applicants to any options that may be open to them in terms of the way forward.

Chronicled below, in conveniently numbered paragraphs, are the relevant facts of the matter, as well as the sequence of events, in so far as I have been able to make them out. I have interspersed the narration/analysis with relevant observations or findings of my own;

1. The applicants are former employees of the respondent; they were dismissed on misconduct charges of theft and fraud in 2009.

2. Having unsuccessfully pursued all internal remedies for redress, they appealed to the Labour Court, on the 30th of October 2009 against their dismissal. In a detailed judgment, the Labour Court dismissed the appeal having found that the two had been properly charged, convicted, and dismissed.

3. The two resolved to appeal to this court but failed to apply to the Labour Court for leave to appeal within the 30-day period which is stipulated in that court's rules.

This, in my view, is where their problems started.3. The two resolved to appeal to this court but failed to apply to the Labour Court for leave to appeal within the 30-day period which is stipulated in that court's rules.

This, in my view, is where their problems started.

4. On the 16th of March 2010, some sixty-six days beyond the stipulated time limits, the applicants filed an application in the Labour Court titled “APPLICATION FOR LEAVE TO APPEAL TO THE SUPREME COURT.”

The relief sought, according to their draft order, mirrored the same title.

A look at the founding affidavit shows that the applicants appreciated the fact that their application would be filed out of time, and that, therefore, they would need to secure condonation of the late filing of the application.

This is evidenced by paragraph (viii) of the founding affidavit, which reads as follows;

“I humbly urge this Honourable Court to condone the delay in this application for leave to appeal to the Supreme Court on the basis that:

(i) I travelled to my rural home ending up in too much delay of noting an appeal (sic).

(ii) As a self-actor, I took too long to find the Labour Court Rules that I can prepare my application.” (sic)

The request for condonation, apart from not being reflected in the title of the application, was, in addition, not incorporated into the draft order.

As indicated later in this judgment, the Judge a quo took the view, that, no application for condonation was before the court.

5. Nevertheless, the Judge issued the following order on the 23rd of June 2010;

“The application for leave to appeal to the Supreme Court be and is hereby denied on the basis that it was out of time and the reason for the delay was not a reasonable one.”…,.

I find this order to be incomprehensible in a number of respects;

(a) Having taken the view that there was no proper application for condonation of the late application for leave to appeal to the Supreme Court, it is not clear why or how the court could have proceeded to 'dismiss' the application for leave to appeal to the Supreme Court.

(b) The reasons given for the 'dismissal' of the application for leave to appeal to the Supreme Court are reasons properly associated with an application for condonation of failure to comply with the rules of the court;

(c) While the reasons might have suggested that the Labour Court had in fact entertained an application for condonation of the late filing of the application for leave to appeal, the court dispelled this notion by specifically stating in its order, that, it had dismissed the application for leave to appeal to the Supreme Court; and

(d) Even were it to be taken that the court entertained the application for condonation, the absence of an order specifically granting such condonation establishes otherwise.

6. What is evident, though, is that the Labour Court did not consider the merits of the application for leave to appeal to the Supreme Court. Indeed, it could not have properly done so without first condoning the late filing of such an application. The applicants were barred, and, at that point in time, out of court.

The applicants should have filed a composite application;

(a) For condonation of the late filing of the application for leave to appeal; and

(b) For leave to appeal to the Supreme Court.

Because they did not do so, the application for leave to appeal to the Supreme Court was not properly before the Labour Court.

7. I am of the firm view, that, instead of dismissing the application for leave to appeal to the Supreme Court for the reasons it gave, the Labour Court should have properly struck the application off the roll.

It is also my opinion, that, since a court cannot dismiss what is not before it, the Labour Court's order of 23 June 2010, was incompetent.

8. Had the Labour Court struck the matter of the roll, the applicants would most likely have been alerted to the need to file a proper application with the same court, for condonation, together with one for leave to appeal to the Supreme Court.

9. As this did not happen, the applicants, who felt aggrieved by the decision 'dismissing' their application for leave to appeal, and had no reason to believe the order to be incompetent, mistakenly, but understandably (being legally unrepresented), filed a chamber application before this court on the 19th of July 2010, under case number SC175/10.

They sought the leave of a Judge to appeal to it (purportedly) in terms of section 92F(3) of the Labour Court Act (“the Act”).

10. The application was dismissed in chambers by GARWE JA on the 14th of December 2010, without considering the merits thereof. This was on the basis, that, this Court could not consider the application for leave to appeal to it before:

(i) Condonation for the late filing of that application in the Labour Court had been obtained; and

(ii) The leave of the Labour Court had been properly sought and denied.

11. After the dismissal of their application by a Judge of this Court, significantly, not on the merits, as indicated in paragraph 9, the applicants approached the Labour Court on the 21st of December 2010 and filed a composite application for -

(i) Condonation of the late filing of the application for leave to appeal to the Supreme Court against the Labour Court's order of 30 October 2009; and

(ii) Leave to appeal to the Supreme Court.

12. On the 21st of February 2011, the Labour Court made a ruling that it could not 'plough the same road' as it had already made a decision on that particular issue. It made the following order;

“1. The Court has dealt with the application for leave to appeal and dismissed it on 23 June 2010;

2. The court is thus functus officio and must dismiss the present application;

3. The application is accordingly dismissed.”…,.

13. It is my considered view, based on the foregoing analysis, that the Labour Court was misguided in its view that it had already heard and determined the application for leave to appeal to this Court. As stated above, and despite the wording of its order of 23 June 2010, the court had NOT properly heard nor determined the application for leave to appeal against its decision of 30 October 2009.

14. In stating this, I am fully cognisant of the fact, that, I am not sitting as an Appeal Court to consider this matter.

Accordingly, as a single judge in chambers, I cannot make, and indeed, should not be taken to be making, a final pronunciation on the matter.

Such a task would properly be within the preview of an appeal bench of this Court.

With this in mind, I nevertheless hazard to express the view, that, contrary to its finding, the Labour Court was, in effect, not functus officio and should properly have entertained the application filed by the applicants on 21 December 2010.

It seems to me, that, the Labour Court judge failed to appreciate the fact, that, the applicant's seemingly repeated filing of the same application was traceable, in part, to the court's failure from the onset (i.e. 16 March, 2010) to indicate to the applicants (by striking the matter off the roll) that they could not apply to it for leave to appeal to the Supreme Court without first seeking its condonation of the late filing of such application.

That the court fully appreciated that this was the correct sequence of events to be followed, is evident from the following observations contained in the judge's reasons for the decision in the question;

“The reason (for dismissing the application of 21 December 2010, for condonation and for leave to appeal) are that on 23 June 2010 an application for leave to appeal was dismissed because it was filed out of time. At that time, no application for condonation was made….,.

The two applications that were filed sought to resuscitate a matter that had been dealt with to finality - at least before this Court. Should I condone the application for leave that has already been denied? I could not consider the second application for leave to appeal because I had already denied it. It was water under the bridge. I could not deal with the application because it was ill timed. It ought to have preceded the first application for leave which I had already dismissed.”

15. A couple of pertinent observations can be made from this rather unclear reasoning.

(i) Firstly, the judge a quo properly realised that the first application by the appellants needed to be preceded by an application for condonation of its late filing. The learned judge, however, then fell into the error of not fully appreciating the implication of this default vis a vis the application for leave to appeal to the Supreme Court.

This was that, absent an application for condonation of late filing of the application for leave to appeal, there was nothing before the court to dismiss.

The later application could not stand on its own, being premised on nothing.

(ii) Secondly, since the dismissal in question was, in my view, incompetent, there would have been nothing to prevent the court from hearing the two applications.

Thus, nothing was dealt with 'to finality'.

16. Be that as it may, the applicants did not, as they may have done, take the requisite steps to appeal to this Court against the Labour Court's finding that;

(i) It was functus officio; and

(ii) That, it had already dealt with the application for leave to appeal to the Supreme Court.

17. The applicants, instead, came back to this court seeking an order for leave to appeal against the court a quo's decision on the main dispute.

18. Needless to say, this application was repetitive and therefore improper.

The ground upon which the first application had been dismissed, that is, absence of condonation by the Labour Court, was still in point.

19. The application was heard and dismissed by GARWE JA on 17 November 2011. As a mark of its displeasure, this Court ordered that the applicants pay costs on the higher scale.

20. To the extent that this court had earlier dismissed the same application, albeit, and also without considering the merits, it could have been argued that the matter was res judicata and that this court was functus officio.

The judge, however, did not make a pronouncement nor issue an order to this effect.

21. The appellants apparently felt they could still pursue the dispute, and, in a manner suggestive of their now being totally confused and entangled in a true web of procedural technicalities, the relentless applicants went back to the Labour Court on 7 December 2011 and filed an application with this somewhat confusing title;

“CHAMBER APPLICATION FOR CONDONATION FOR LATE FILING OF AN APPLICATION FOR LEAVE TO APPEAL AGAINST THE DENIAL OF CONDONATION AND APPLICATION FOR LEAVE TO APPEAL AGAINST THE DENIAL OF CONDONATION FOR LEAVE TO APPEAL TO THE SUPREME COURT”

What immediately becomes evident from this title is the fact, that, the application in question was premised on the view, that, an application for condonation of the late filing of an application for leave to appeal to the Supreme Court had been heard and refused by the Labour Court.

The opposite was in fact the case.

The learned judge, in the excerpt from her judgment that is cited in paragraph 14 above, made it very clear why she was not going to entertain such an application. Nor did she, in the end, do so.

The application was therefore misguided.

22. Having, again, found no satisfaction from the Labour Court, the applicants have now, yet again, approached this Court with this application, which is no less misguided than the last one they made before the Labour Court (see above).

The application brings nothing new to this Court unless it is to demonstrate the applicants sheer determination to pursue the matter to what they perceive to be its logical conclusion - whatever pitfalls may stand in their way.

As this Court has entertained the same matter several times, it is my view, that, the court is now functus officio.

The dispute has gone round in circles for a period of over five years and there must be finality to litigation.

The application now before me is, in any case, not sustainable in its current form.

Accordingly, the application is dismissed with costs.

HMT03-19 : THE TRUSTEES OF THE UNITED MUTARE RESIDENTS AND RATEPAYERS TRUST (UMRRT) vs CITY OF MUTARE and THE MINISTER OF LOCAL GOVERNMENT, PUBLIC WORKS & NATIONAL HOUSING
Ruled By: MUZENDA J

On the 23rd of March 2015, Mr Sebastian Bakare; Mr Terrance Moody; Ms Natsai Nyamuwanza; Mr Cephas Sagwete; Ms Poshier Magada; Ms Maraidza Elizabeth Mutambara joined together to form United Mutare Residents and Ratepayers Trust.

Counsel for the applicant appears on the copy of the Resolution dated 3rd July 2018 which was prepared just a day before the current application was filed at Court was added to the list of Trustees.

Clause 6 of the Deed of Trust specifies the applicant's Core Business thus:

“The provision of a comprehensive platform for residents participation in local governance, service delivery, local democracy, and policy formulation, accountability and transparency.”

Article 2, captioned “LEGAL STATUS” provides inter alia:

“The Trust shall be a body corporate and as such…,.”

It is not clear as whether it can sue or be sued in its name, however, it can acquire, own, and is
limited to its property in as far as liability is concerned.

On the 4th of July 2018, the applicant filed an application seeking the following relief:

“It is declared that 1st Respondent has failed to comply with its Constitutional mandate to 'ensure good governance by being effective, transparent, accountable and institutionally coherent' in exercising its right to govern the local affairs of the Community of Mutare by not carrying out an external audit of books, balance sheet and accounts for the financial years ending 30 June 2014, 30 June 2015, 30 June 2016 and 30 June 2017.

2. And it is ordered that:

(a) 1st Respondent appoints a reputable firm of registered public auditors within 30 days of the granting of this order to carry out an audit of its books, balance sheets and accounts referred in section 286 of the Urban Councils Act [Chapter 29:15] for the financial years ending 30th June 2014-2017.

(b) Further that, 1st Respondent produce to the auditors for the purpose of audit, accounts, balance sheets, all relevant books, papers, writings and minutes books in its possession for the financial years ending 30 June 2014-2017 within 30 days of the granting of this order.

(c) Further, that, 1st Respondent prepare and present before this court a comprehensive report within the first 90 days of the granting of this order, detailing how it has complied with this order and at 180 days mark, an audit report for the financial years ending 30th June 2014-2017 as provided under section 306(3) of the Urban Councils Act [Chapter 29:15] failure which 1st Respondent shall be in contempt of court.

3. 1st Respondent will pay costs of suit on a legal practitioner-client scale.”

Facts

From 10 to 19 December 2015, the second respondent embarked on an institutional special investigative audit report at the first respondent's institution following complaints that the first respondent's, the City Council, employees were being owed salary arrears of eighteen months.

Obviously, the report by the Ministry was adverse and revealed anomalies committed by Mutare City Council.

The applicant accessed the investigative report and offered to assist the City Council.

The City Council refused and the applicant wrote threatening letters to the first respondent and indicated to Municipality of Mutare that it was going to advise residents to boycott payment of utility bills until the City Council met their demands.

The City Council responded encouraging dialogue, and, further letters were exchanged and the letter of 16 April 2018, written by the applicant's legal practitioners, proposed a tripartite meeting between the applicants, the City Council officials, and the residents and ratepayers on the other side.

No meeting was held.

The City Council supplied some information in June 2018, availing to the applicant schedules of Zinara funds, education levy, and outstanding debts due to the Council per ward.

The applicant was not amused by the conduct of the City Council, and, on the 4th of July 2018, this application was filed at the court.

The first respondent, the City Council, is opposing the application.

The first respondent raised three points in limine;

(i) The first one being that of locus standi in judicio;

(ii) The second one is that the relief sought is vague, imprecise, and unusual; and

(iii) The third and final one is that the applicant did not exhaust domestic remedies.

On the other hand, after receiving the first respondent's opposing papers, the applicant, in its replying affidavit, also introduced the fourth point in limine before this court, challenging the authority of Mr Joshua Maligwa in preparing the opposing affidavit without a resolution of the City Council.

On that note, the applicant proposed to the court, that, there is no valid opposition and the application has to be granted.

On the date of hearing of the application, I granted the first respondent an opportunity to address the court, first, focusing on all the points in limine - including that raised by the applicant.

After the first respondent had addressed the court, the applicant was given the opportunity to reply and address the court on the question of Mr Maligwa's lack of authority....,.

Whether the sought relief is vague, imprecise and unusual

The first respondent submitted, that, the relief being sought is incompetent and cannot be granted in the circumstances.

The applicant seeks an interdict in the form of a mandamus and structural interdict; in addition, the applicant seeks a declaratur. The cover of the court application reads:

“Court application for an order of Declaratur, Mandamus, Structural Interdict and Ancillary Relief”

According to the first respondent, this clearly demonstrates the ineptitude and the irrationality of the relief that is being sought.

The first respondent submitted, that, the applicant has not proved the requirements of an interdict nor does the affidavit outline the allegations or facts which establish such pre-requisites. The applicant has not demonstrated that it has a clear right to compel the first respondent to do an audit. The applicant falsely believes, that, by forming a Trust, it grants it an automatic right to compel the first respondent to abide by its demands; there is no contract of such a right to compel the first respondent.

The applicant must aver or adduce evidence to establish such a right and it has failed.

The first respondent further added, that, the applicant has dismally failed to demonstrate on its papers any potential harm it may suffer or its beneficiaries may suffer if the relief it seeks is not granted.

The first respondent added, that, the application should also fail on the basis that there are other remedies available to the applicant; the applicant has not approached the Minister, the second respondent, to exhaust domestic remedies.

Where there is an alternative remedy, there is no basis for seeking the interdict.

The first respondent also impugned the applicant for failing to demonstrate the requirements of a structural interdict; that is, by proving that there is inefficiency in the system, and, as such, there will be need to be controlled.

The applicant did not manage to prove that there is incompetence or gross inefficiency which warrants the imposition of a structural interdict.

The first respondent cited the case of Kenton on Sea Ratepayers Association & Ors v Ndlambe Local Municipality 2017 (2) SA 86 (ECG).

The City Council also pointed out the dangers associated with structural interdicts, moreso, in that it violates the concept of separation of powers.

The court would end up treading into institutional spheres of control and result into undue interference with other spheres of governance.

The final point hammered by the first respondent is that even for a declaratur, the applicant failed to meet the requirements of section 14 of the High Court Act by failing to demonstrate the existing, future right which will be affected if the court does not give judgment.

It prayed for the dismissal of the application.

The first respondent cited the matter of Johnson HFC 1995 (1) ZLR 65 (S)…,.; GUBBAY CJ held:

“The condition precedent to the grant of a declaratory order under section 14 of the High Court of Zimbabwe Act 1981 is that the applicant must be an 'interested person' in the sense of having a direct and substantial interest in the subject matter of the suit which could be prejudicially affected by the judgment of the Court. The interest must concern an existing, future, or contingent right. The Court will not decide abstract, academic, or hypothetical questions unrelated thereto. But, the presence of an actual dispute or controversy between the parties interested is not a pre-requisite to the exercise of jurisdiction.”

This point in limine lies on the borderline of law and fact.

In my view, these issues dealt with herein would have been appropriately dealt with in the main, that is, on the merits.

However, the first respondent's submission is that the applicant did not crisply, in its founding papers, exhaustively encapsulate these ingredients in order to achieve its intended purpose. Such a failure should putatively paralyse the application and this court should uphold the preliminary point and dismiss the application.

Apparently, the face of the court application is a mixed bag of separate reliefs “God's plenty” and like a hunter's arrow any prey can be caught and the hunter will attain his purpose of a catch.

I agree with the first respondent that the relief being sought is vague and embarrassing.

An examination of the affidavit, in conjunction with the draft order, indeed causes concern and the applicant ought to have crisply tabulated its facts and the draft, sealing, clearly, the relief sought.

The basis upon which the ultimate relief is premised was not established and I accordingly uphold this preliminary point.

HH54-16 : AIR DUCT FABRICATORS (PVT) LTD vs A.M. MACHADO & SONS (PVT) LTD
Ruled By: CHIGUMBA J

This is an opposed matter in which the applicant (defendant in the main matter) filed a special plea, that the respondent's (plaintiff in the main matters) action be stayed, pending the final determination of the dispute by the arbitrator in terms of the parties agreement.

Both parties are companies which are duly incorporated in accordance with the laws of Zimbabwe.

This case brings to the fore the vexing question of the effect, that, the raising of a special plea ought to have on the proceedings in the main matter.

Various other contentious issues come to mind, such as; whether a special plea should only be raised in circumstances where, if it is upheld, it is likely to dispose of the matter, and, what the purpose of a special plea is as a tool in litigation?

These interesting legal conundrums aside, the issue that arises for determination in this matter is simple.

Does the existence of an arbitration clause in an agreement between parties preclude one of the parties from instituting legal proceedings until the matter has been referred to and determined by an arbitrator?

The background to this special plea is that the respondent issued summons against the applicant on 16 February 2015 in which it claimed payment of the sum of USD$17,313=75 being the 5% retention fund held in terms of the agreement between the parties, as well as costs of suit.

On 5 February 2013, the parties entered into an agreement in terms of which the respondent undertook to supply and fix air-conditioning and mechanical ventilation systems as a nominated sub-contractor in the Nestle new laboratory and administration block project. The respondent averred in the summons, that, it completed its mandate by 4 February 2014 and that it was issued with a certificate of practical completion of works by the Architect.

It is common cause, that, on 13 May 2014, the final certificate of payment in the sum of USD$17,313=75, the 5% retention fund held in terms of the agreement, was issued to the applicant for onward transmission to the respondent. The respondent averred, that, the applicant had failed or refused to release this money to it, in breach of the parties agreement.

The applicant filed notice of entry of appearance to defend on 3 March 2015, and, on 24 June 2015, after further particulars and further and better particulars had been sought and supplied, the applicant filed its special plea.

The basis of the special plea was clause 27 of the CIFOZ Conditions of Building Subcontracts, which the applicant averred provided, that, any dispute or difference that arose between the parties would be referred to arbitration.

According to the applicant, the dispute between the parties arose from the fact that the retention money, to the value claimed by the respondent, was and is still being held in a retention fund trust at Tetrad Investment Bank Limited for Nestle Zimbabwe (Private) Limited (Nestle) and the respondent.

The retention fund was created on 16 November 2012 under the instruction of the respondent and a nominated architect, together with the applicant for the benefit of Nestle.

The applicant contended, that, the respondent ought to have sued Nestle in its summons.

The applicant contended further, that, in terms of clause 13(c) of the CIFOZ Conditions of Building Sub-contracts, the respondent accepted the cession of the retention money to it by the applicant, therefore its claim ought to be against Nestle.

It is common cause that Tetrad Investment Bank Limited (Tetrad) was placed under judicial management, that is why the applicant has not been paid from the retention fund....,.

In the case before me, it is common cause that the main contractor has failed to pay the sub-contractor. It is also common cause that the parties agreed to place certain funds in an escrow account with Tetrad Investment Bank Limited which is now in liquidation. It is common cause that the reason why the main contractor is unable to pay the sub-contractor is that the escrow funds are stuck at Tetrad Investment Bank Limited, the account has been frozen in the process of liquidation. The amount due and payable is not disputed.

There is no dispute between the parties which requires resolution...,.

HMT08-19 : STELLA MASUNGA vs FORWARD KAPIYA
Ruled By: MWAYERA J and MUZENDA J

On 23 July 2018, Mr Forward Kapiya (the respondent) of Stand 254 Headlands Location issued summons at Rusape Magistrate's Court against the appellant, Stella Masunga, where he was seeking eviction of the appellant from a commercial Stand No.193, Headlands known as Kapiya General Dealer.

In the summons, he averred that the appellant was his ex-wife and he had since separated with her, and, since she was then co-habiting with other men, she ought to move out of the property.

The defendant filed her appearance to defend, and, on 3 August 2018 she filed her plea. In her plea she contended that the respondent herein was not the owner of the property. She is the one who bought Stand 193 in 2004 and started constructing it alone before customarily marrying the respondent in 2006.

When she married the respondent, in 2006, the shop was about to be roofed.

In 2010, she admitted changing the name from her name to that of the respondent since the respondent was going to marry her. When the appellant changed the names, she did not know that the respondent wanted to grab her shop.

On 12 September 2018, the matter proceeded to trial and both parties led evidence to prove their cases and called witnesses.

After hearing, the court granted eviction against the appellant and ordered her to vacate the premises by 31 December 2018. The order was granted on 19 November 2018.

On 30 November 2018, the appellant noted an appeal against the whole judgment of the magistrate and outlined the grounds of appeal as follows:

“1. The learned Magistrate erred in ordering the eviction of the appellant by 31 December 2018 on Stand No.193 Headlands, despite the following:

(a) The Stand in question belongs to the appellant.

(b) That responsible authority, which is in Makoni Rural District Council, through its representative, Fungai Misi, having been given subpoena, confirmed that appellant is the one who had purchased the said Stand.

2. The learned Magistrate misdirected herself by failing to appreciate the evidence of the responsible authority to the effect that the Stand is registered in appellant's name.

3. The learned magistrate erred and misdirected herself by failing to consider the evidence of the responsible authority to the effect that indeed there was an attempt to do a cession but that was not done because there were issues which needed to be ironed out first.

4. The court failed to appreciate that indeed appellant has a clear right over the Stand hence could not be evicted.

5. The court failed to appreciate that respondent was lying and sought to rely on his evidence.

6. The court erred and misdirected itself in relying with the evidence of a brick moulder.

7. The judgment imposed by the trial magistrate is shocking and should be set aside.

WHEREFORE appellant prays that an order for eviction imposed by the trial magistrate be set aside with costs that she be allowed to carry out her business as the owner of Stand 193 Headlands.”

I have cited the prayer of the appellant to show that it is defective. However, we condoned that defect in the interests of justice and allowed the appellant to argue its appeal.

For the record, the prayer in an appeal should be framed as follows:

“(a) The appeal is upheld with costs.

(b) The judgment of the court a quo is set aside and substituted by the following:

The claim for eviction of the defendant from Stand 193 Headlands is dismissed with costs.”

The appellant's legal practitioner, on the date of hearing, sought the leave of the court to consolidate grounds of appeal 1, 2 and 3 to be represented by ground 1. Effectively, the appellant chose to abandon ground 2 and 3.

The appellant also abandoned ground of appeal 7, though, in counsel's submission, he smuggled it back whilst seeking an order allowing the court to take into account the proprietary right of the appellant over Stand 193 Headlands.

We allowed the consolidation and refinement of the grounds of appeal for there was no prejudice on the respondent.

The grounds of appeal to be dealt with by this court were then 1, 4, 5 and 6.

WHETHER THE MAGISTRATE ERRED IN ORDERING EVICTION OF THE APPELLANT?

The appellant submitted, that, Stand No.193 Headlands belonged to her because it is still registered in her name on the papers held by Makoni Rural District Council.

In the appellant's own pleadings filed of record, she unreservedly and voluntarily contended, that, although she is the one who bought the Stand (a fact which is disputed by the respondent herein) she changed ownership in 2010 when she was about to wed the respondent.

To consolidate that commitment towards change of ownership, there are copies of affidavits signed by both the appellant and the respondent and submitted at Headlands District office.

Whether those papers were forwarded to Makoni Rural District Council offices for cession remains, in our view, academic.

The evidence of Fungai Misi was of no effect because the appellant, in her own papers, concedes, that, in 2010, she changed ownership of the Stand to that of the respondent.

The affidavits of cession signed by the appellant were not revoked nor set aside, they remain extant up to this date.

In any case, the court a quo dealt extensively on the evidence of the appellant, more particularly on the aspect of the purchase price.

The appellant, in her pleadings, contended, that, she bought the Stand for ZW$800. She later on changed the purchase price to ZW$8,000.

The purchase price of ZW$800,000, through a cheque paid by the respondent, was the one confirmed by the Rural Council employee and the court a quo justifiably impugned the appellant's evidence on that aspect questioning how and why the appellant conflicted herself on the price if she was the one who purchased the Stand?

This aspect was based on the credibility, and, the trial court believed the respondent.

There is no basis for this court to interfere with that finding of credibility and we find no misdirection on the part of the learned Magistrate.

That element of the purchase price only added weight to the fact, that, the issue of ownership was resolved by the appellant herself on the date she deposed to an affidavit ceding her rights to that of the respondent.

Ground of appeal number 6 denigrates the evidence of the brick moulder.

We fail to see the legal basis for criticising the learned magistrate in placing probative value on that witness's evidence.

The brick moulder, Mr John Rwapungu, was contracted to mould bricks (usually called “home-made”) by the respondent. He agreed and did the work. He also ferried the bricks to the site using an animal drawn cart. There were no developments at the site. The moulder's bricks were the ones which were used by the respondent's builder to construct development at Stand 193 Headlands.

The court a quo accepted the moulder's evidence, and also the respondent's evidence, to the effect, that, the developments at Stand 193 Headlands were effected by the respondent and belongs to him.

We find no misdirection by the learned magistrate.

When all these aspects are considered, cumulatively, the finding by the court a quo, that Stand 193 Headlands was bought by the respondent and developed by him, is unimpeachable, and, in fact, belongs to the respondent.

The appellant had to be evicted from that Stand since she is not occupying it with the permission of the owner, hence the appellant was an unlawful occupier.

WHETHER THE COURT FAILED TO APPRECIATE THAT APPELLANT HAD A CLEAR RIGHT OVER THE STAND AND HENCE COULD NOT BE EVICTED

The appellant contends, that, she found a clear right and focuses her argument on the issue of registration of that Stand with the local authority, Makoni Rural District Council.

As already ruled, if the appellant had not pleaded change of ownership in her papers, as well as signing affidavits ceding such rights to the respondent, the interpretation of the situation might have been different.

In our view, the intention to cede those rights by the appellant was done voluntarily and had not been reversed.

The respondent's evidence, that, the property is now in his name, has not been challenged in cross examination.

The application before the court a quo was that of eviction and not sharing of property.

The appellant did not counter claim the Stand ownership and does not raise fraud preceding her cession of rights.

We are unable to agree with the appellant's submissions, that, the court a quo failed to appreciate that the appellant had a clear right. On the date the appellant agreed to cede her rights to the respondent, in 2010, the respondent acquired real rights over the Stand....,.

What is clear from the papers is that the appellant was assigned to go and pay for the Stand in her name without the approval of the respondent. Upon discovery of the situation by the respondent, the parties, for whatever reason, agreed to sign papers where the appellant ceded her rights over the Stand to the respondent. Now that the appellant had separated from the customary union with the respondent, she surreptitiously seeks to have this court re-distribute the property....,.

This ground of appeal has equally no merit.

HH57-14 : TAMUKA GIYA vs RIBI TIGER TRADING t/a TRIANLE TYRE
Ruled By: CHIGUMBA J

At the hearing of this matter, I granted the application for registration of an arbitral award with costs on an ordinary scale.

I gave brief reasons for the judgment, being of the view, that, the law that governs the question of whether the noting of an appeal against an arbitral award suspends the operation of the award is settled and that there was no evidence that the respondent could successfully rely on to challenge the registration applied for.

I have now been asked to provide detailed reasons for judgment. These are they.

The applicant sought the registration of a Labour arbitral award handed down in compulsory arbitration proceedings on 23 November 2012, by Ms E. Maganyani.

In terms of section 98(14) and (15) of the Labour Act, any party to whom an arbitral award relates may submit it for registration to a court of corresponding monetary jurisdiction.

The applicant was awarded various sums of money totalling US$19,125 plus interest thereon at the prescribed sum, calculated from the date of the arbitral award to the date of payment in full.

In his founding affidavit, he averred, that, as at the date of his application for registration of the arbitral award, 7 December 2012, the respondent had failed, refused or neglected to pay this sum. Registration of the arbitral award was sought for purposes of enforcement. The application was served on the respondent on 10 December 2012.

The respondent filed a notice of opposition on 19 December 2012. The grounds of opposition were;

(i) Firstly, that the applicant was never its employee, but a mere contractor;

(ii) Secondly, that there was need for oral evidence from both parties;

(iii) Thirdly, that no quantification was done by both parties.

(iv) The last reason for opposing the registration of the arbitral award was that the respondent had since appealed to the Labour Court against the decision of the arbitrator, on points of law.

The details of the appeal were attached to the notice of opposition.

The applicant filed his answering affidavit on 16 April 2013. He attached copies of both parties written submissions which had been submitted to the arbitrator, to counter the allegation by the respondent that it had been denied an opportunity to be heard by the arbitrator. He denied having been a contract worker, and reiterated that he fitted the statutory definition of employee, as set out in the Labour Act.

He averred, that, the respondent had deliberately chosen not to attend the date of the hearing by the arbitrator, despite being notified of it. He reiterated that the arbitrator was asked to determine the matter on the basis of the papers filed of record when the respondent failed to respond to the notice of set down of the hearing.

He alleged, that, the respondent's appeal to the Labour Court was fatally defective, being filed out of time, and alleged that the opposition to the registration of the arbitral award was an attempt by the respondent to frustrate him and delay in paying him his dues.

At the hearing of the matter, both parties abided by their heads of argument and had nothing of value to add.

The applicant submitted, that, the issue that the court ought to determine was whether the arbitral award, made on 23 November 2012, can be registered as an order of this court for purposes of enforcement.

I agree with that submission, and note, that, the issue is purely one of law....,.

In regards to the merits of the matter, the applicant contended, that, an arbitral award which has not been set aside, or in respect of which execution has not been stayed, must be registered as a matter of course.

He relied on the case of Greenland v Zimbabwe Community Health International Research Project HH93-13 as authority for that proposition where the court stated that…,:

“Where an award is not stayed or suspended, in terms of section 92E(3) of the Labour Act, the court will, as a matter of principle, register the award unless there are grounds, as provided for in Article 36 of the Model Law contained in the Arbitration Act [Chapter 7:15].

Article 36 of the Model Law, a schedule to the Arbitration Act [Cap 7;15] provides the grounds on which challenges to the registration of arbitral awards may be mounted.

Article 35 provides that arbitral awards shall be recognized as binding and shall be enforced subject to its provisions and to the provisions of Article 36.”

The respondent challenged the registration of the arbitral award on the basis that it was denied an opportunity to be heard, which falls under Article 36(1)(a)(ii) of the Model Law: that is:

“(1) Recognition or enforcement of an arbitral award, irrespective of the country in which it was made, may be refused only at the request of the party against whom it is invoked, if that party furnishes to the court, where recognition or enforcement is sought, proof that —

(i)…,.

(ii) The party against whom the award is invoked was not given proper notice of the appointment of an arbitrator or of the arbitral proceedings or was otherwise unable to present his case; or”…,.

And/or Article 36(3) of the Model Law which provides that:

“(3) For the avoidance of doubt, and without limiting the generality of paragraph (1)(b)(ii) of this article, it is declared, that, the recognition or enforcement of an award would be contrary to the public policy of Zimbabwe if the making of the award was induced or effected by fraud or corruption; or a breach of the rules of natural justice occurred in connection with the making of the award.”

In my view, it was open to the respondent to argue, that, the registration of the arbitral award was contrary to public policy because there was a breach in the rules of natural justice in the making of the award: see Article 36(3)(b) of the Model Law.

The respondent, unfortunately, did not make specific reference to Article 36.

The respondent contended, that, it was not afforded an opportunity to present oral evidence on the quantification of the entitlements awarded, in clear breach of the rules of natural justice, rendering the decision making process unprocedural.

This implies, that, the respondent was invoking the provisions of Article 36(1)(a)(ii) of the Model Law.

HH125-17 : GRANDWELL HOLDINGS vs ZIMBABWE CONSOLIDATED DIAMOND COMPANY LTD and COMMISSIONER GENERAL, ZIMBABWE REPUBLIC POLICE and MBADA DIAMONDS (PVT) LTD
Ruled By: TSANGA J

In March 2016, the applicant, Grandwell Holdings (Grandwell), which owns a 50% shareholding in Mbada Diamonds [Private] Limited (Mbada), a joint venture initiative for diamond mining in Chiadzwa, obtained an interim order under HC1977/16 (HH193-16).

The other 50% shareholding in Mbada is owned by Marange Resources [Private] Limited (Marange), a Government-owned company.

According to the applicant, the elements of the order which was granted entitled its security personnel, and its entire chain, to return to Chiadzwa in order to safeguard its assets. Among these are said to be diamond ore and unprocessed diamonds that are kept in a vault. The diamond ore, which has been crushed, awaits removal of diamonds.

What is not in dispute is that from March last year, the applicant's security personnel went on site as per the order by the court in HC1977/16.

What has brought the applicants back to court, on an urgent basis, is its allegation that their security personnel at the diamond site have now been removed and that massive looting of their diamond ore has taken place at the instance of the first respondent, Zimbabwe Consolidated Diamond Company Limited (ZCDC), and continues to take place - aided and abetted by the Zimbabwe Republic Police (the police), as the second respondent.

The ore is said to being loaded without any recording or chain of command making it impossible to ascertain what is being taken.

With the core mingling of the diamond ore with that being mined by the Zimbabwe Consolidated Diamond Company Limited (ZCDC), the fear is that it would be impossible to tell which diamonds come from which ore and that therein lies the irreparable harm.

Mbada Diamonds [Private] Limited's security personnel have been sterilised by these actions of ZCDC.

To compound the problem, the Zimbabwe Consolidated Diamond Company Limited (ZCDC) is said to have brought onto the mining site security personnel previously hired by Mbada Diamonds [Private] Limited who know how to open the vault locks. As such, a real fear is that of the diamonds being stolen.

Further, if the ore and the diamonds are taken, an equally real fear is that the pending appeal before the Supreme Court would be rendered nugatory.

Having invested US$100m in Mbada Diamonds [Private] Limited, Grandwell Holdings says it has a real and substantial interest in protecting the interests of Mbada Diamonds and its own investment.

An attempt is said to have been made to file the application on behalf of Mbada Diamonds [Private] Limited, but, it had failed to secure the signatures of representatives on the Board of Mbada Diamonds who represent Marange Resources [Private] Limited.

Grandwell Holdings, being a 50% shareholder in Mbada Diamonds [Private] Limited had therefore brought a derivative action to enforce the rights of Mbada Diamonds and to seek a possessory remedy to restore possession.

The basis upon which Grandwell Holdings says that Mbada Diamonds [Private] Limited has been despoilt is paragraph 7 of the Order that was granted in HC1977/16. The paragraph was couched as follows:

“Paragraph 7

For the purposes of safeguarding assets, all of the fifth respondent's security personnel, with all their chain of command, shall be entitled, authorised, and empowered to remain at the fifth respondent's mining site at Chiadzwa Diamond Concession, as directed in paragraph 2 of the order of this court on 29 February 2016, until the resolution of this matter.”

The police, as second respondents, were said not to have appealed against the order, whilst the Zimbabwe Consolidated Diamond Company Limited (ZCDC) which had indeed appealed, had only done so against the finding that it had committed acts of spoliation.

The appeal was therefore said to be in part, leaving paragraph 7, in essence, extant.

In addition, the fact, that, there was no appeal against the presence of security personnel, as per the court order, which is said to be extant, was said to be supported by the fact, that, for almost a year Mbada Diamonds [Private] Limited's security personnel remained firmly on site even as the appeal was pending.

However, the Zimbabwe Consolidated Diamond Company Limited's position is that any removal that has taken place has been as per the court order and arises from the fact, that, the mining grants which were acknowledged to have expired in the said order of the court have not been renewed.

Spoliation per se is denied.

The police say they are there in terms of their constitutional mandate, in section 219 of the Constitution, to maintain peace and order and safeguard property. They have asserted, that, they cannot be interdicted from carrying out a lawful mandate. Furthermore, their standpoint is that no police report was made regarding any theft to diamonds.

They too, essentially, deny despoiling Mbada Diamonds [Private] Limited....,.

I turn now to the merits.

The merits against the backdrop of facts I have already outlined, the bulk of counsel for the first respondent's submission were on the competing rights to the ore stemming from the non-renewal of the mining grants.

This, indeed, was of no relevance to an application for spoliation since its purpose is: “not the protection and vindication of rights in general, but, rather, the restoration of the status quo ante where the spoliatus has been unlawfully deprived of a thing, a movable or immovable, that he had been in possession or quasi-possession of:” see Zulu v Minister of Works, KwaZulu and Others 1992 (1) SA 181 (T).

Key to the remedy is the need to stop and reverse self-help in the resolution of disputes between parties.

Furthermore, as explained in Yeko v Qana 1973 (4) SA 735 (A)…, drawing in Voet 41.2.16:

“…, the injustice of the possession of the person despoiled is irrelevant as he is entitled to a spoliation order even if he is a thief or a robber. The fundamental principle of the remedy is that no one is allowed to take the law into his own hands. All that the spoliatus has to prove is possession of the kind which warrants protection of the remedy and that he was unlawfully ousted.”

An applicant in spoliation proceedings has to establish that they were in peaceful and undisturbed possession of the thing in question at the time they were deprived of possession.

As stated in the case of Gondo NO v Gondo 2001 (1) ZLR 376…,:

“In order to obtain a spoliation order, an applicant needs to prove no more than that -

(a) He was, at the time of the act of spoliation, in peaceful and undisturbed possession of the property; and

(b) He was forcibly or wrongfully, and against his consent, deprived of possession.”

Therefore, what is of relevance here is whether an act of spoliation has taken place entitling the return of possessory right to Mbada Diamonds [Private] Limited.

Fundamentally, also as observed in the case of Chikodzi & Anor v Mashonaland Tobacco (Pvt) Limited & Anor HH392-15, self help itself materially runs against the grain of rule of law as articulated in section 3(1)(a) and (b) of the Constitution of Zimbabwe Amendment Act (No.20) Act 2013 which states in section 3 in its founding values and principles that:

“Zimbabwe is founded on respect of the following values and principles –

(a) Supremacy of the Constitution.

(b) The rule of law.”

Self-help is inimical to a society in which the rule of law prevails as observed in the case of Chief Lesapo v Northwest Agricultural Bank 2000 (1) SA 409.

Notably, this dispute pits a joint venture entity with its foreign investor against a State-created entity.

It is as such important to bear in mind the broader picture.

Among the multitude of factors that have a bearing on investment anywhere in the world is observance of the rule of law in the settlement of disputes. It matters not that one of the parties feels contractually short-changed or thereby entitled to its actions. The rule of law ought to be the guiding principle and it is the duty of the courts to fearlessly foster dispute resolution through the proper channels at all times.

Disregard for the rule of law ultimately does nothing towards fostering a climate of trust for productive investment.

Much of the focus by counsel for the first respondent addressed the question of rights.

The dispute, in so far as this aspect is concerned, is under appeal.

The applicants were emphatic, that, the gravamen of their complaint is the removal of the security personnel who remain at Chiadzwa but have been confined to the residential areas.

In view of the order that was granted in HC1977/16, of which paragraph 7 has indeed, from an examination the notice of appeal, not been appealed against by the Zimbabwe Consolidated Diamond Company Limited (ZCDC), the first respondent, then, Mbada Diamonds (Private) Limited is entitled to an interim relief in the spirit of part of that remains extant.

It has been argued, that, Mbada Diamonds (Private) Limited has alleged spoliation and yet it seeks an interdict.

It is clearly in terms of the rights accorded in paragraph 7 of that Order that it bases its application for an interdict. As such, the argument that they have not satisfied the requirements of an interdict therefore cannot hold. It has merely sought a remedy that is appropriate to the facts. The interdict seeks, among things, to stop the removal of its ore.

No evidence was placed before the court for this hearing to challenge the applicant's assertion, that, Mbada Diamonds (Private) Limited's security personnel had in fact been on the site undisturbed from the time of the granting of the Order up until the recent developments of dispossession.

HH660-16 : IGNATIUS MASAMBA vs MERCY GORONGOZA
Ruled By: CHIGUMBA J

The matter came before me on the unopposed roll on 1 September 2016. I dismissed it on the basis that:

(a) There is no cause of action, therefore, the relief sought is incompetent.

(b) The papers are defective in that they do not comply with Order 32 of the Rules of this court.

After having been subjected to a barrage of letters by the applicant, the contents of which are self explanatory, and which form part of the record of proceedings, this is a formal setting out of the reasons for the dismissal of the application.

The court application filed of record, on 8 July 2016, made reference to five other applications filed before this court: HC11009-12, HC9428-14, HC2826-16, HC1511-16 and HC2622-16.

The draft order…, is a prayer for an order that the applicant be granted his wish to be allowed to pay lobola at his own convenience, on a date to pay that he will request from the inlaws - only if the respondent is a virgin.

The court was asked, further, to order the respondent to stop her part in the “beaming”.

The court was unable to determine, from the founding affidavit, what the cause of action was.

The court was unable to accede to an order that the respondent accept the applicant as a prospective husband; an order that the parents allow the applicant to pay lobola for her hand in marriage at his convenience; an order that she demonstrates that she is still a virgin; or an order that the respondent stops her part of the 'beaming'.

A cause of action is defined as “the facts that entitle a person to sue:” see Oxford Dictionary of Law, 8th ed Southern Law…,.

The cause of action may be a wrongful act, such as trespass, or the harm resulting from a wrongful act, as in negligence.

A reading of the founding affidavit suggests, that, the applicant's cause of action purports to be founded in delict.

A 'delict' is a civil wrong: see Principles of Delict, JONATHAN BURCHELL…,.

In a delictual claim, the plaintiff normally seeks damages as compensation from the defendant for infringement of his or her rights.

There is nothing in the applicant's founding affidavit which shows what civil wrong the respondent committed.

There is nothing in the founding affidavit to justify the relief sought by the applicant, in delict or in any other recognisable cause of action.

The court was not furnished with sufficient information or averments to understand what 'beaming' is.

To order the respondent to stop her part in the 'beaming' without sufficient foundation as to what this 'wrong' is would be incompetent.

It would be incompetent to order 'that the respondent' furnish the applicant with evidence of her virginity or that she agree to be 'lobolaed' by him.

HH699-16 : IGNATIUS MASAMBA vs ZETDC
Ruled By: MAKONI J

The applicant approached this court seeking rescission of default judgment entered against him in Case No. HC9544/15 on 8 March 2016.

The background to the matter is that the applicant, as plaintiff, sued the respondent, then the defendant, in the Magistrates Court. The particulars of claim were not clear and concise but they referred to some breach of contract by the respondent; a delictual claim based on the mental suffering that the applicant suffered as a result of the breach of contract.

The magistrate granted absolution from the instance at the close of the applicant, then the plaintiff's case.

The applicant appealed against the decision, in CIV “A” 457/14.

On the day of the hearing, the appeal was dismissed because the applicant defaulted by not appearing.

The applicant, in Case No. HC9542/15, applied for rescission of the default judgment.

Again, at the hearing of Case No. HC9542/15 the applicant was in default and the case was dismissed.

The applicant now seeks rescission of the judgment in terms of Rule 63 of the High Court Rules 1971 (Rules).

In terms of Rule 63, the court may set aside a judgment if there is good and sufficient cause to do so.

Good and sufficient cause has been defined, in a number of jurisdictions, as:

(i) A reasonable explanation for the default;

(ii) Where there is a bona fide defence to the main claim; and

(iii) Where the application for rescission is itself bona fide.

See Chivhayi Enterprises (Pvt) Ltd v Attish Investments (Pvt) Ltd 2007 (2) 89 (S).

The applicant avers, that, the matter was set down in Court “M”. On the day of hearing, the matters were moved to Court “O”. By the time he realized that the matters had been moved, and by the time he managed to get to Court “O” his matter had been dismissed.

The explanation given by the applicant has not been controverted. It sounds probable. I will take that that is what transpired. The detail that he gives regarding the notice that was affixed at the courtroom door has some ring of truth.

The next issue is whether the applicant has a bona fide claim in HC9542/15.

He is seeking rescission of the judgment through which his appeal was dismissed.

The proper procedure would have been for the applicant to apply for reinstatement of the appeal. The applicant has adopted the wrong procedure.

His application, thus, has no prospects of success and it is likely to be dismissed.

In the result, the applicant has not satisfied the requirement that he show good and sufficient cause to have the default judgment rescinded.

Before concluding the matter, I feel compelled to comment on the applicant's papers.

From the analysis I did above, one can tell, that, it is a very simple matter; but, I had to plough through a 100 paged record with endless repetitions and unnecessary material to come up with the judgement.

The bulk of what is contained in the record is irrelevant and incomprehensible.

Pleadings should be concise and clear.

In Meikles Limited Zimbabwe v Stock Exchange HH66-16, in dealing with pleadings which were not concise, I quoted with approval Fungai Nhau v Memory Kipe & Anor HH73-15 where he had this to say:

“By definition, pleadings must be concise and to the point. They must identify the branch of the law under which the claim or defence to it is made and should not contain evidence. Pleadings which are long winding and argumentative should not find their way to these courts. It is a serious dereliction of duty for legal practitioners to continue presenting such offensive pleadings when they have the aid of literature guiding the drafting of pleadings.

I associate myself fully with the sentiments of MAKARAU JP…, in Chifamba v Mutasa & Ors HH16-08 that:

'Legal practitioners are urged to read on the law before putting pen to paper to draft pleadings; in any matter is that what they plead is what the law requires their clients to prove to sustain the remedy they seek…,. Litigation in the High Court is serious business and the standard of pleadings in the court must reflect such.'”

Although the above matters involved legal practitioners, the same can be said of self-actors.

The question, then, is, whether the court, and other litigants, should be subjected to the agony of reading through such process and be expected to come up with a sound judgment or a meaningful response to such processes.

The authors, HERBSTEIN and Van WINSEN. The Civil Practice of the High Courts in South Africa, 5ed…, state the following:

“The High Court possess an inherent jurisdiction to prevent vexatious litigation as being an abuse of its own process.”

They go on to explain, that, such power is one which must be exercised with very great caution and only in a clear case, as the courts of law are open to all.

In De Wet and Ors v Western Bank Ltd 1977 (4) SA 770 T…, the court held:

“A court obviously has inherent power to control the procedure and proceedings in its court. This is to facilitate the work of the courts and enable litigants to resolve their differences in a speedy and inexpensive manner as possible…,.”

The proceedings in this matter can safely be described as vexatious.

The court must be able to protect and control the procedure and its proceedings to avoid abuse by litigants.

It is my view, that, this is the sort of case where a litigant will, in future, be required to seek leave before filing and serving other litigants with his or her process. This would be in a bid to prevent abuse of its own process and to protect other litigants from being harassed and being put out of pocket by vexatious litigants.

It is fortuitous that the respondent, in this matter, did not oppose the application.

In the result, I will make the following order:

1. The application is dismissed.

2. The applicant is required to seek leave of this court before he can issue any process out of this court.

3. No order as to costs.

HH701-16 : IGNATIUS MASAMBA vs DIRECTOR OF ZIMSEC
Ruled By: MAKONI J

The applicant and his son, Ian Masamba, in HC0051/15 sued the respondent claiming damages for what they termed “professional negligence for mental suffering” in the sum of USD1,200,000.

The applicant further claimed payment of USD1,400,000 for what he termed “defamation libel.”

The respondent excepted to the summons as well as filed a Special Plea.

The matter was determined by MUNANGATI-MANONGWA J who made the following order:

“1. The special pleas raised by the defendant be and is hereby upheld.

2. The first and second plaintiffs claims against the defendant be and are hereby dismissed.

3. The first and second plaintiffs to pay defendant's costs on an attorney–client scale jointly and severally, the one paying the other to be absolved.”

The applicant now approaches this court seeking an order in the following terms:

“1. The order in case no: HC6051/15 be and is hereby set aside/rescinded against both plaintiffs.

2. Ian Farai Masamba be reinstated as the (1st) first plaintiff in case no: HC6051/15 in which he will invest me with a power of attorney in compliancy with High Court Rules book: Rule 5(4) with the caveat that the rules book itself does not reflect rule 5(4) only Form 1 is reflected and indicates as being originated by Rule 5(4).

3. An Independent Committee of Enquiry be hereby instituted within 3 months from the date of the issuing of this order respondent's ZIMSEC to hold an inquiry into this matter and related matters on the basis of cited record numbers found in this record and the others as the records are perused new records for perusal are found up until they are finished at the magistrate's court and high court report its findings including the performance of the magistrates and judges in the matters in terms of competence and bias and report whether or not the president of the country's hands are clean as well as whether or not his father was Malawian sourcing information from him and from wherever else possible so as to immortalize the correct official history as need to verify has arisen because there is the possibility that history could be falsified and enquiry about the beaming.”

The applicant's affidavit is 33 pages.

I have waded through the prolix affidavit and the draft order and have failed to decipher what exactly the applicant seeks from the court.

The record of the matter itself is 268 pages.

Most of the material is irrelevant to the issue at hand.

There is mention somewhere in the founding affidavit that he seeks the setting aside of the judgement in terms of Order 49 Rule 449(1)(b).

Rule 449(1)(b) provides:

“The court or a judge, in addition to any other power it or he may have mero motu or upon the application of any party affected, correct, rescind, vary any judgement or order -

(a)…,.

(b) In which there is an ambiguity or patent error or omission, but, only to the extent of such ambiguity, error or omission; or

(c)…,.”

HH701-16 : IGNATIUS MASAMBA vs DIRECTOR OF ZIMSEC
Ruled By: MAKONI J

The relief that he seeks in paragraph 2 and 3 is incomprehensible and meaningless and the court cannot be of assistance to him.

HH709-15 : ODAR HOUSING DEVELOPMENT CONSORTIUM vs SENSENE INVESTMENTS (PVT) LTD and MINISTER OF LOCAL GOVERNMENT, PUBLIC WORKS AND NATIONAL HOUSING and ATTORNEY–GENERAL
Ruled By: MAFUSIRE J

This was an urgent chamber application. At the end of the hearing, I dismissed it with costs on a legal practitioner-and-client scale. I deprecated the conduct of the applicant's legal practitioners.

The purported urgent chamber application was not only bad in many respects, it was incurably bad.

What I was particularly concerned with were the patent falsehoods in the applicant's papers.

Furthermore, there was an apparent disconnection between the order sought, the facts laid out in support thereof, and the allegations in the certificate of urgency.

Here are the details....,.

(c) The Relief Sought

The applicant's draft order was couched thus:

“TERMS OF FINAL ORDER SOUGHT

That you show cause to this Honourable Court why a final order should not be made in the following terms:

1. That, the 1st and 2nd Respondents be and are hereby interdicted from interfering with Applicant's operations on the Remainder of the Farm Ordar situate in the district of Salisbury pending determination of an application seeking the setting aside of title transfer under Deed No.2807/2015;

2. That, the 1st Respondent and 2nd Respondents (sic) shall bear the costs of this application on a legal practitioner and client scale.

INTERIM RELIEF GRANTED

Pending determination of this matter, the Applicant is granted the following relief:

1. That, the 1st Respondent be and is hereby interdicted from harassing Applicant's members and/or beneficiaries in any way whatsoever in respect of the Remainder of the Farm Odar immediately upon service of this order.”

The background to this case, in summary, and in my own words, as I understood it, and avoiding much of the contentious stuff, was that the applicant was a consortium or joint venture of some 56 members, comprising, among many others, companies, and State enterprises.

The first respondent was a private company fronted by one Phillip Chiyangwa (“Chiyangwa”).

The second respondent represented the Government.

It was said, in 2006, the Government, in terms of two written agreements, allocated to the applicant some 605,8092 hectares of a property known as Ordar Farm (“the property”).

The allocation was so that the consortium could develop, at its own cost, housing units for its members.

One important feature of the joint venture agreement was that the consortium would, through the Government, pay compensation to the former owner of the land at levels pegged by Government.

This former owner was identified in the agreements as the Zimbabwe Tobacco Association (“ZTA”).

Another feature of the agreements was that the parties to the joint venture would establish a partnership whose members contributions to the capital costs and whose entitlement to the individual land units would be in the proportions as set out.

The day to day management of the partnership would be entrusted to a committee of twelve persons appointed by the partners.

In due course, the Government would pass title to the owners of the individual units of land.

The applicant's case before me, again in my own words, and largely staying clear of the hotly contested facts, was that it had kept its side of the agreement.

Among other things, the relevant developmental permits had been put in place. The property had substantially been developed.

Yet, the Government had blatantly reneged on virtually every other undertaking that it had made to the applicant.

Among other things, the Government had surreptitiously surrendered the property to Phillip Chiyangwa, through his company, the first respondent herein.

A week before the application, the Government had, nicodemously, executed a Deed of Grant over the property in favour of Phillip Chiyangwa's company.

The applicant's members were now at Phillip Chiyangwa's mercy.

They were facing constant harassment from him as he relentlessly pursued compensation from them in return for individual title to the individual units occupied by them in terms of the agreements with the Government.

He was busy flighting malicious adverts in the media and making malicious reports to the police against the applicant's Management Committee.

The applicant did not recognise Phillip Chiyangwa or his alleged rights or title to the property.

In separate proceedings before this court, the applicant said it was challenging Government's actions. In particular, the applicant wanted the title to Phillip Chiyangwa's company reversed.

So. the applicant's case before me was that pending determination of the main case, it wanted a temporary interdict.

It was the nature of that temporary interdict that was the bone of contention.

Prima facie, the applicant had made out a case of double-dealing by the Government.

The Government's conduct was put into serious question.

It had acquired the property; it had allocated it to the applicant; the applicant had expended vast sums of money in line with the agreements; the applicant's members anticipated getting title to the individual units of land over which they had taken occupation, or were in the process of doing so; the level of compensation was, or had to be assessed by the Government.

Then, Phillip Chiyangwa zooms from nowhere, brandishing a title deed issued by the same Government - over the same property.

And the same Government was now tossing the applicant's members to Phillip Chiyangwa to whom payment of the compensation had to be made.

Thus, the Government was in the dock. It owed an explanation.

It was its secret execution of the title deed in favour of Phillip Chiyangwa's company that had prompted the applicant to approach the court on an urgent basis.

That, basically, was the applicant's case.

Unfortunately, it was not the one before me.

It was the case pending before this court for determination at another time and by another judge.

The case before me, as summarised in the interim relief sought, was that I should interdict Phillip Chiyangwa's company from “…, harassing Applicant's members and/or beneficiaries in any way whatsoever….,.”

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Cause of Action and Draft Orders re: Approach, Timing, Framing and Legal Basis for Invoking Jurisdiction of the Court

CC03-22 : DIANA KAWENDA vs MINISTER OF JUSTICE, LEGAL & PARLIAMENTARY AFFAIRS and MINISTER OF HEALTH AND CHILD CARE and THE ATTORNEY-GENERAL OF ZIMBABWE
Ruled By: MAKARAU JCC, HLATSHWAYO JCC and PATEL JCC

HMA21-19 : MR MBOZVI vs CHENGETAI SIDHUNA
Ruled By: MAWADZE J and MAFUSIRE J

CC05-22 : GOVATI MHORA vs EMMACULATA MHORA
Ruled By: PATEL JCC

CC09-22 : MINISTER OF MINES & MINING DEVELOPMENT and THE PROVINCIAL MINING DIRECTOR FOR MIDLANDS PROVINCE vs FIDELITY PRINTERS & REFINERS (PVT) LTD and JONAH NHEVERA
Ruled By: GOWORA JCC

HMA38-19 : BERRINGTON ZVANYANYA and OTHERS vs ZIMBABWE SUGAR MILLING INDUSTRY WORKERS UNION and OTHERS
Ruled By: MAFUSIRE J

CC10-22 : FRANCIS BERE vs JUDICIAL SERVICE COMMISSION and SIMBI MUBAKO and REKAYI MAPOSA and TAKAWIRA NZOMBE and VIRGINIA MABHIZA and PRESIDENT OF ZIMBABWE and MINISTER OF JUSTICE LEGAL & PARLIAMENTARY AFFAIRS
Ruled By: GARWE JCC, HLATSHWAYO JCC and PATEL JCC

View Appeal
HH264-21 : MUSA KIKA vs MINISTER OF JUSTICE LEGAL & PARLIAMENTARY AFFAIRS and THE CHIEF JUSTICE HONOURABLE LUKE MALABA N.O. and OTHERS
Ruled By: ZHOU J, CHAREWA J and MUSHORE J

View Appeal
HH264-21 : MUSA KIKA vs MINISTER OF JUSTICE LEGAL & PARLIAMENTARY AFFAIRS and THE CHIEF JUSTICE HONOURABLE LUKE MALABA N.O. and OTHERS
Ruled By: ZHOU J, CHAREWA J and MUSHORE J

View Appeal
HMA06-19 : WILLMORE MAKUMIRE vs MINISTER OF PUBLIC SERVICE, LABOUR & SOCIAL WELFARE and ATTORNEY GENERAL OF ZIMBABWE
Ruled By: MAFUSIRE J

Appealed
SC75-17 : EDWARD MADYAVANHU vs REGGIE SARUCHERA and GRANT THORNTON CAMELSA CHARTERED ACCOUNTANTS (ZIMBABWE) and CAIRNS FOODS LTD
Ruled By: GWAUNZA JA, GUVAVA JA and ZIYAMBI AJA

Appealed
SC75-17 : EDWARD MADYAVANHU vs REGGIE SARUCHERA and GRANT THORNTON CAMELSA CHARTERED ACCOUNTANTS (ZIMBABWE) and CAIRNS FOODS LTD
Ruled By: GWAUNZA JA, GUVAVA JA and ZIYAMBI AJA

View Appeal
HH236-18 : MFUNDO MLILO vs THE PRESIDENT OF THE REPUBLIC OF ZIMBABWE
Ruled By: MANGOTA J

SC86-14 : W. CHOMUREMA and E. MUZOKOMBA vs TELONE
Ruled By: GWAUNZA JA

HMT03-19 : THE TRUSTEES OF THE UNITED MUTARE RESIDENTS AND RATEPAYERS TRUST (UMRRT) vs CITY OF MUTARE and THE MINISTER OF LOCAL GOVERNMENT, PUBLIC WORKS & NATIONAL HOUSING
Ruled By: MUZENDA J

HH54-16 : AIR DUCT FABRICATORS (PVT) LTD vs A.M. MACHADO & SONS (PVT) LTD
Ruled By: CHIGUMBA J

HMT08-19 : STELLA MASUNGA vs FORWARD KAPIYA
Ruled By: MWAYERA J and MUZENDA J

HH57-14 : TAMUKA GIYA vs RIBI TIGER TRADING t/a TRIANLE TYRE
Ruled By: CHIGUMBA J

HH125-17 : GRANDWELL HOLDINGS vs ZIMBABWE CONSOLIDATED DIAMOND COMPANY LTD and COMMISSIONER GENERAL, ZIMBABWE REPUBLIC POLICE and MBADA DIAMONDS (PVT) LTD
Ruled By: TSANGA J

HH660-16 : IGNATIUS MASAMBA vs MERCY GORONGOZA
Ruled By: CHIGUMBA J

HH699-16 : IGNATIUS MASAMBA vs ZETDC
Ruled By: MAKONI J

HH701-16 : IGNATIUS MASAMBA vs DIRECTOR OF ZIMSEC
Ruled By: MAKONI J

HH701-16 : IGNATIUS MASAMBA vs DIRECTOR OF ZIMSEC
Ruled By: MAKONI J

HH709-15 : ODAR HOUSING DEVELOPMENT CONSORTIUM vs SENSENE INVESTMENTS (PVT) LTD and MINISTER OF LOCAL GOVERNMENT, PUBLIC WORKS AND NATIONAL HOUSING and ATTORNEY–GENERAL
Ruled By: MAFUSIRE J

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Cause of Action and Draft Orders re: Approach, Timing, Framing and Legal Basis for Invoking Jurisdiction of the Court

CC03-22 : DIANA KAWENDA vs MINISTER OF JUSTICE, LEGAL & PARLIAMENTARY AFFAIRS and MINISTER OF HEALTH AND CHILD CARE and THE ATTORNEY-GENERAL OF ZIMBABWE Ruled By: MAKARAU JCC, HLATSHWAYO JCC and PATEL JCC

HMA21-19 : MR MBOZVI vs CHENGETAI SIDHUNA Ruled By: MAWADZE J and MAFUSIRE J

CC05-22 : GOVATI MHORA vs EMMACULATA MHORA Ruled By: PATEL JCC

CC09-22 : MINISTER OF MINES & MINING DEVELOPMENT and THE PROVINCIAL MINING DIRECTOR FOR MIDLANDS PROVINCE vs FIDELITY PRINTERS & REFINERS (PVT) LTD and JONAH NHEVERA Ruled By: GOWORA JCC

HMA38-19 : BERRINGTON ZVANYANYA and OTHERS vs ZIMBABWE SUGAR MILLING INDUSTRY WORKERS UNION and OTHERS Ruled By: MAFUSIRE J

CC10-22 : FRANCIS BERE vs JUDICIAL SERVICE COMMISSION and SIMBI MUBAKO and REKAYI MAPOSA and TAKAWIRA NZOMBE and VIRGINIA MABHIZA and PRESIDENT OF ZIMBABWE and MINISTER OF JUSTICE LEGAL & PARLIAMENTARY AFFAIRS Ruled By: GARWE JCC, HLATSHWAYO JCC and PATEL JCC

View Appeal HH264-21 : MUSA KIKA vs MINISTER OF JUSTICE LEGAL & PARLIAMENTARY AFFAIRS and THE CHIEF JUSTICE HONOURABLE LUKE MALABA N.O. and OTHERS Ruled By: ZHOU J, CHAREWA J and MUSHORE J

View Appeal HH264-21 : MUSA KIKA vs MINISTER OF JUSTICE LEGAL & PARLIAMENTARY AFFAIRS and THE CHIEF JUSTICE HONOURABLE LUKE MALABA N.O. and OTHERS Ruled By: ZHOU J, CHAREWA J and MUSHORE J

View Appeal HMA06-19 : WILLMORE MAKUMIRE vs MINISTER OF PUBLIC SERVICE, LABOUR & SOCIAL WELFARE and ATTORNEY GENERAL OF ZIMBABWE Ruled By: MAFUSIRE J

Appealed SC75-17 : EDWARD MADYAVANHU vs REGGIE SARUCHERA and GRANT THORNTON CAMELSA CHARTERED ACCOUNTANTS (ZIMBABWE) and CAIRNS FOODS LTD Ruled By: GWAUNZA JA, GUVAVA JA and ZIYAMBI AJA

Appealed SC75-17 : EDWARD MADYAVANHU vs REGGIE SARUCHERA and GRANT THORNTON CAMELSA CHARTERED ACCOUNTANTS (ZIMBABWE) and CAIRNS FOODS LTD Ruled By: GWAUNZA JA, GUVAVA JA and ZIYAMBI AJA

View Appeal HH236-18 : MFUNDO MLILO vs THE PRESIDENT OF THE REPUBLIC OF ZIMBABWE Ruled By: MANGOTA J

SC86-14 : W. CHOMUREMA and E. MUZOKOMBA vs TELONE Ruled By: GWAUNZA JA

HMT03-19 : THE TRUSTEES OF THE UNITED MUTARE RESIDENTS AND RATEPAYERS TRUST (UMRRT) vs CITY OF MUTARE and THE MINISTER OF LOCAL GOVERNMENT, PUBLIC WORKS & NATIONAL HOUSING Ruled By: MUZENDA J

HH54-16 : AIR DUCT FABRICATORS (PVT) LTD vs A.M. MACHADO & SONS (PVT) LTD Ruled By: CHIGUMBA J

HMT08-19 : STELLA MASUNGA vs FORWARD KAPIYA Ruled By: MWAYERA J and MUZENDA J

HH57-14 : TAMUKA GIYA vs RIBI TIGER TRADING t/a TRIANLE TYRE Ruled By: CHIGUMBA J

HH125-17 : GRANDWELL HOLDINGS vs ZIMBABWE CONSOLIDATED DIAMOND COMPANY LTD and COMMISSIONER GENERAL, ZIMBABWE REPUBLIC POLICE and MBADA DIAMONDS (PVT) LTD Ruled By: TSANGA J

HH660-16 : IGNATIUS MASAMBA vs MERCY GORONGOZA Ruled By: CHIGUMBA J

HH699-16 : IGNATIUS MASAMBA vs ZETDC Ruled By: MAKONI J

HH701-16 : IGNATIUS MASAMBA vs DIRECTOR OF ZIMSEC Ruled By: MAKONI J

HH701-16 : IGNATIUS MASAMBA vs DIRECTOR OF ZIMSEC Ruled By: MAKONI J

HH709-15 : ODAR HOUSING DEVELOPMENT CONSORTIUM vs SENSENE INVESTMENTS (PVT) LTD and MINISTER OF LOCAL GOVERNMENT, PUBLIC WORKS AND NATIONAL HOUSING and ATTORNEY–GENERAL Ruled By: MAFUSIRE J

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CC03-22 : DIANA KAWENDA vs MINISTER OF JUSTICE, LEGAL & PARLIAMENTARY AFFAIRS and MINISTER OF HEALTH AND CHILD CARE and THE ATTORNEY-GENERAL OF ZIMBABWE
Ruled By: MAKARAU JCC, HLATSHWAYO JCC and PATEL JCC

HMA21-19 : MR MBOZVI vs CHENGETAI SIDHUNA
Ruled By: MAWADZE J and MAFUSIRE J

CC05-22 : GOVATI MHORA vs EMMACULATA MHORA
Ruled By: PATEL JCC

CC09-22 : MINISTER OF MINES & MINING DEVELOPMENT and THE PROVINCIAL MINING DIRECTOR FOR MIDLANDS PROVINCE vs FIDELITY PRINTERS & REFINERS (PVT) LTD and JONAH NHEVERA
Ruled By: GOWORA JCC

HMA38-19 : BERRINGTON ZVANYANYA and OTHERS vs ZIMBABWE SUGAR MILLING INDUSTRY WORKERS UNION and OTHERS
Ruled By: MAFUSIRE J

CC10-22 : FRANCIS BERE vs JUDICIAL SERVICE COMMISSION and SIMBI MUBAKO and REKAYI MAPOSA and TAKAWIRA NZOMBE and VIRGINIA MABHIZA and PRESIDENT OF ZIMBABWE and MINISTER OF JUSTICE LEGAL & PARLIAMENTARY AFFAIRS
Ruled By: GARWE JCC, HLATSHWAYO JCC and PATEL JCC

View Appeal
HH264-21 : MUSA KIKA vs MINISTER OF JUSTICE LEGAL & PARLIAMENTARY AFFAIRS and THE CHIEF JUSTICE HONOURABLE LUKE MALABA N.O. and OTHERS
Ruled By: ZHOU J, CHAREWA J and MUSHORE J

View Appeal
HH264-21 : MUSA KIKA vs MINISTER OF JUSTICE LEGAL & PARLIAMENTARY AFFAIRS and THE CHIEF JUSTICE HONOURABLE LUKE MALABA N.O. and OTHERS
Ruled By: ZHOU J, CHAREWA J and MUSHORE J

View Appeal
HMA06-19 : WILLMORE MAKUMIRE vs MINISTER OF PUBLIC SERVICE, LABOUR & SOCIAL WELFARE and ATTORNEY GENERAL OF ZIMBABWE
Ruled By: MAFUSIRE J

Appealed
SC75-17 : EDWARD MADYAVANHU vs REGGIE SARUCHERA and GRANT THORNTON CAMELSA CHARTERED ACCOUNTANTS (ZIMBABWE) and CAIRNS FOODS LTD
Ruled By: GWAUNZA JA, GUVAVA JA and ZIYAMBI AJA

Appealed
SC75-17 : EDWARD MADYAVANHU vs REGGIE SARUCHERA and GRANT THORNTON CAMELSA CHARTERED ACCOUNTANTS (ZIMBABWE) and CAIRNS FOODS LTD
Ruled By: GWAUNZA JA, GUVAVA JA and ZIYAMBI AJA

View Appeal
HH236-18 : MFUNDO MLILO vs THE PRESIDENT OF THE REPUBLIC OF ZIMBABWE
Ruled By: MANGOTA J

SC86-14 : W. CHOMUREMA and E. MUZOKOMBA vs TELONE
Ruled By: GWAUNZA JA

HMT03-19 : THE TRUSTEES OF THE UNITED MUTARE RESIDENTS AND RATEPAYERS TRUST (UMRRT) vs CITY OF MUTARE and THE MINISTER OF LOCAL GOVERNMENT, PUBLIC WORKS & NATIONAL HOUSING
Ruled By: MUZENDA J

HH54-16 : AIR DUCT FABRICATORS (PVT) LTD vs A.M. MACHADO & SONS (PVT) LTD
Ruled By: CHIGUMBA J

HMT08-19 : STELLA MASUNGA vs FORWARD KAPIYA
Ruled By: MWAYERA J and MUZENDA J

HH57-14 : TAMUKA GIYA vs RIBI TIGER TRADING t/a TRIANLE TYRE
Ruled By: CHIGUMBA J

HH125-17 : GRANDWELL HOLDINGS vs ZIMBABWE CONSOLIDATED DIAMOND COMPANY LTD and COMMISSIONER GENERAL, ZIMBABWE REPUBLIC POLICE and MBADA DIAMONDS (PVT) LTD
Ruled By: TSANGA J

HH660-16 : IGNATIUS MASAMBA vs MERCY GORONGOZA
Ruled By: CHIGUMBA J

HH699-16 : IGNATIUS MASAMBA vs ZETDC
Ruled By: MAKONI J

HH701-16 : IGNATIUS MASAMBA vs DIRECTOR OF ZIMSEC
Ruled By: MAKONI J

HH701-16 : IGNATIUS MASAMBA vs DIRECTOR OF ZIMSEC
Ruled By: MAKONI J

HH709-15 : ODAR HOUSING DEVELOPMENT CONSORTIUM vs SENSENE INVESTMENTS (PVT) LTD and MINISTER OF LOCAL GOVERNMENT, PUBLIC WORKS AND NATIONAL HOUSING and ATTORNEY–GENERAL
Ruled By: MAFUSIRE J