1. Whether
or not the application was properly before the court a quo.
Counsel for the appellant argues that section 4 of the
Administrative Justice Act [Chapter 10:28] is an
embodiment of the common law grounds for review and the respondent should
accordingly have brought a review application before the court a quo,
in terms of ...
1. Whether
or not the application was properly before the court a quo.
Counsel for the appellant argues that section 4 of the
Administrative Justice Act [Chapter 10:28] is an
embodiment of the common law grounds for review and the respondent should
accordingly have brought a review application before the court a quo,
in terms of Order 33 of the High Court of Zimbabwe Rules 1971. By essentially
bringing proceedings which “in substance” were for review, without complying
with the provisions of the law relating to review proceedings, the respondent,
contends counsel for the appellant, had employed the wrong procedure. The
result was that the application was not properly before the court a quo.
Counsel for the appellant further challenges what he refers to as the
“contradictory” conclusion of the court a quo in that, after
concluding that the application was not a review, it went on to justify its
interference on the basis of review
principles.
Counsel for
the respondent, on the other hand, contends that the application a quo was not one for review and therefore Rule 257 of the
High Court Rules did not apply. The application a quo was primarily a constitutional challenge to specific
provisions of the Reconstruction of State Indebted Insolvent Companies Act [Chapter 24:27]. In the alternative, the respondent sought
leave to sue the appellant. Further, and in any event, a proper case had been
made out by the respondent for leave to be granted. Lastly, he contended that
at the time the application for leave was filed in the court a quo, the request to the Administrator for the same
relief, dated 3 August 2012, had not been adjudicated upon, meaning that there
was no decision, nor were there any proceedings, to be reviewed.
In holding that the application before him was not one for
review, the judge a quo stated as follows in his
judgment;
“Mr
Mpofu, for the respondent, protested
that a wrong procedure was employed as s 4 of the Administrative Justice Act is
an embodiment of the common law grounds for review. For that reason the
applicant should have brought a review application in terms of Order 33 of the
High Court Rules. I do not agree. Section 4 allows an aggrieved party to
seek recourse in this Court. It makes no reference to a review
application. I agree with Mr Moyo, for the applicant, that if the legislature
desired to provide for a remedy of review in terms of Order 33, it would have
specifically said so. It however elected to create a statutory remedy in
terms of which a party is entitled to approach this court, by application,
where the administrative authority has come short.”
I find little to fault in the reasoning of the court a quo on this point.
As correctly stated, section 4(1) of the Administrative
Justice Act [Chapter 10:28] provides that the
statutory relief referred to by the judge a quo may be sought
by way of an application to the High Court. However, no specific format for
such application is prescribed. While a review in terms of the High Court
Rules is a special form of application, there is nothing in section 4(1) of the
Administrative Justice Act [Chapter 10:28] to
suggest that any other form of application for judicial review would in any way
offend against that sub-section as long as it meets the requirements of an
ordinary court application. I find this position to be fortified by section 26
of the High Court Act [Chapter 7:06] which
reads as follows;
“PART V
POWERS OF REVIEW
26 Power to review
proceedings and decisions
Subject to this Act and any other law, the High Court shall
have power, jurisdiction and authority to review all proceedings and decisions
of all inferior courts of justice, tribunals and administrative authorities
within Zimbabwe.
27 Grounds for review
(1) Subject to this Act and any other law, the grounds on which
any proceedings or decision may be brought on review before the High Court
shall be -
(a) Absence of jurisdiction on the part of the court,
tribunal or authority concerned;
(b) Interest in the cause, bias, malice, or corruption on
the part of the person presiding over the court or tribunal concerned or on the
part of the authority concerned, as the case may be;
(c) Gross irregularity in the proceedings or the decision.
(2) Nothing
in subsection (1) shall affect any other law relating to the review of
proceedings or decisions of inferior courts, tribunals or authorities.….,.
My understanding of this provision is that the High Court
Act contemplates and permits review proceedings that are brought before it in
terms of “any other law.” Specifically, judicial review may be done in terms of
another statute; for instance, the Administrative Justice Act, as happened in casu. Further to this, and as clearly indicated above in
subsections (1) and (2) of section 27 of the High Court Act [Chapter 7:06], grounds for review are not limited to those
particularized in that section. Other laws can properly dictate the
consideration of, or specify, other grounds on the basis of which proceedings
of a lower court or tribunal may properly be reviewed.
Counsel for the appellant also argues that an allegation to
the effect that a public official has failed to give reasons, or to make a
decision altogether, is a reviewable issue. He has referred the court to a
number of decisions to support this contention. (Muchapondwa v
Madake and Others 2006
(1) ZLR 196 (H); and S v Mapiye
(S) – 214/88). These authorities, in the main, relate to judicial
officers who, after hearing argument in matters before them, made and
communicated their decisions to the parties, but failed to provide reasons for
such decisions. In addressing this oversight, the learned judge in S v Makawa & Another
1991 (1) ZLR 142 (SC)…, stated as follows;
“Although there are indications in this case that the
Magistrate may have considered the case, a large portion of those
considerations remained stored in his mind instead of being committed to paper.
In the circumstances, this amounts to an omission to consider and give reasons.
There is gross irregularity in the proceedings…,. See R v Jokonya 1964 RLR 236…,.”
In casu, it is
evident that the appellant, who must have had reasons for not acting on the
request made to him by the respondent, chose not to commit them to paper nor
communicate them to the latter. The reasons therefore remained “stored” in his
mind. Based on the authorities cited, I am satisfied that the failure by the
appellant, as an administrative authority, to take action when properly
requested to do so, constituted an irregularity which may properly be the
subject of judicial review. However, for the reasons stated above, I am not
persuaded that the only form of review proceedings in the circumstances of this
case, would be those in terms of Order 33 Rule 257 of the High Court Rules.
It should be noted that, in any case, an attempt to satisfy
the requirements of Order 33 of the High Court Rules, in particular Rule 259,
given the circumstances of this case, might present practical difficulties. The
Rule provides as follows;
“259 Time within which
proceedings to be instituted
Any proceedings by way of review shall be instituted
within eight weeks of the termination of the suit, action or proceeding in
which the irregularity or illegality complained of is alleged to have occurred:
Provided that the court may, for good cause shown, extend
the time.”…,.
The appellant in casu took no
action at all following the respondent's request for leave to sue SMM Holdings
(Private) Limited. There was effectively no 'termination' to speak of since, by
its nature, the appellant's inaction was a continuing default. The
ascertainment of a date from which to reckon the eight (8) weeks stipulated in Rule
259 would thus be problematic.
I find, in any case, that the appellant's conduct is
contemplated by section 3(1)(b) of the Administrative Justice Act [Chapter 10:28]…,. His failure to act within a reasonable
period, after being requested to do so by the respondent, constituted a ground
for review which, albeit, not listed in section 27
of the High Court Act [Chapter 7:06], was,
nevertheless, established in terms of “any other law.”
Accordingly, the respondent was within its rights to
approach the High Court with an application, in terms of the Administrative
Justice Act [Chapter 10:28], for the relief that it
had requested from the appellant but did not secure.
In all respects, therefore, I find there is no
merit in the ground of appeal that alleges that the application a quo was not properly before that court.