MALABA
DCJ: At
the end of hearing argument for both parties, the Court dismissed the
application with costs on the legal practitioner and client scale. It was indicated that reasons for the
decision would follow in due course.
These are they.
The
applicant approached the Court in terms of s 85(1)(a) of the Constitution of
the Republic of Zimbabwe Amendment (No. 20) 2013 (“the Constitution”)
which provides that any person acting in their own interests is entitled to
approach a court alleging that a fundamental right or freedom enshrined in
Chapter V has been, is being or is likely to be infringed and the court may
grant appropriate relief.
The
applicant is customarily married to the second respondent. During the subsistence of the marriage immovable
property known as Stand No. 48 Dan Judson Road, Milton Park, Harare (“the
property”) was acquired and registered in the name of the second
respondent. The couple separated in 2001
and the second respondent moved out of the said property. The ownership of the house was not changed at
the Deeds Registry and title remained with the second respondent.
In
2010, the second respondent entered into a business transaction with the first
respondent in terms of which he undertook to cut timber at the latter's
plantation. The second respondent failed
to perform his obligations in terms of the agreement leading to the first
respondent suing him for breach of contract and loss of future earnings. The first respondent obtained a default
judgment from the High Court and proceeded to attach the property, which was
still in the name of the second respondent.
The first respondent also applied to the High Court for an order
declaring the property especially executable.
The applicant opposed the application on the basis that she was entitled
to 50% share of the property. She argued
that the property could not be sold in execution, to recover her husband's
debts.
The
court a quo granted the order sought by
the first respondent declaring the property especially executable. The applicant did not appeal against the
judgment. It remains extant. Instead the
applicant approached the Court in terms of s 85(1) of the Constitution alleging
that she has personal rights to the property which have been infringed by the
order declaring the property especially executable. She alleged the right to property enshrined
in s 71(3) of the Constitution has been infringed. The founding affidavit made no reference to
any other fundamental human right enshrined in Chapter V of the Constitution
being infringed.
Mr
Mpofu for the first respondent took
several points in limine. He argued that the application was improperly
before the Court, because the remedy the applicant should have utilized was
that of an appeal to the Supreme Court as the application was in response to
the judgment of the High Court. Mr Mpofu argued that the Constitutional
Court has no jurisdiction to overturn an extant order of the High Court in a
constitutional application not alleging that the decision was a violation of
the right to equal protection of the law.
Mr Mpofu argued that if the decision of the
High Court was on a constitutional point raised before that Court the applicant
ought to have approached the Court by way of appeal on that point in terms of s
167(5)(b) of the Constitution. Mr Mpofu further argued that the court a quo's decision was based on the
interpretation and application of ss 2 and 14 of the Deeds Registries Act [Cap. 20:05] on real rights and the
effect of their registration. According
to Mr Mpofu having not appealed
against the order of the court a quo,
the applicant cannot have it set aside without impugning the constitutionality
of the statutory provisions in terms of which the judgment was made.
Mr
Uriri for the applicant indicated
that he had instructions to withdraw the matter and sought to apply that the
matter be withdrawn. Mr Mpofu opposed this application arguing
that the matter should not be withdrawn, but that the Court exercise its
discretion and dismiss the matter with costs on a higher scale.
While
parties may at any time before a matter is set down, withdraw a matter, with a
tender of costs the same does not hold true for a matter that has already been
set down for hearing. Once a matter is
set down, withdrawal is not there for the taking.
The
applicable principles are set out in Erasmus “Superior Court Practice” B1-304.
A person who has instituted proceedings is entitled to withdraw such
proceedings without the other party's concurrence and without leave of the
court at any time before the matter is set down. The proceedings are those in which there is
lis between the parties one of whom seeks redress or the enforcement of rights
against the other. An application for
appropriate relief on the grounds of alleged violation of a right is such a
proceeding.
Once a matter has
been set down for hearing it is not competent for a party who has instituted
such proceedings to withdraw them without either the consent of all the parties
or the leave of the court. In the
absence of such consent or leave, a purported notice of withdrawal will be
invalid. The court has a discretion whether
or not to grant such leave upon application.
The question of injustice to the other parties is germane to the
exercise of the court's discretion. It
is, however, not ordinarily the function of the court to force a person to
proceed with an action against his will or to investigate the reasons for
abandoning or wishing to abandon one.
See -
Abramacos v Abramacos 1953(4) SA
474(SR);
Pearson
& Hutton NNO v Hitseroth 1967(3) 591(E) at 593D, 594H
Protea
Assurance Co Ltd v Gamlase 1971(1)SA 460(E) at 465G
Huggins
v Ryan NO
1978(1) SA 216(R) at 218D
Franco
Vignazia Enterprises (Pty) Ltd v Berry 1983(2) SA 290(C)
at 295H
Levy
v Levy
1991(3) SA 614(A) at 620B
HERBSTEIN & Van Winsen “The Civil Practice of the High Courts and Supreme Court of Appeal of
South Africa” (5ed) p 750
From
the above authorities, it is the law that a court, having satisfied itself that
a matter is properly before it, can refuse to grant an application for
withdrawal of the matter.
Faced
with this compelling position of the law, Mr Uriri then sought to argue that there was no application before the
Court to dismiss. It was his view that
as an application in terms of s 85(1)(a) of the Constitution was brought before
the Court instead of an appeal against the judgment of the court a quo the matter was improperly before
the Court.
Mr
Uriri failed to appreciate the import
of s 85(1) of the Constitution. The
section provides:
“85 Enforcement of fundamental human rights
and freedoms
(1)
Any of the following persons, namely-
(a)
any person acting in their own interests;
(b)
…….
(c)
…
(d)
…
(e)
…
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.” (emphasis)
It is clear from a
reading of s 85(1) of the Constitution that a person approaching the Court in
terms of the section only has to allege an infringement of a fundamental human right
for the Court to be seized with the matter.
The purpose of the section is to allow litigants as much freedom of
access to courts on questions of violation of fundamental human rights and
freedoms with minimal technicalities.
The facts on which the allegation is based must of course, appear in the
founding affidavit.
Whether or not the
allegation is subsequently established as true is a question which does not
arise in an enquiry as to whether the matter is properly before the Court in
terms of s 85(1). In this case, the
applicant alleged in the founding affidavit that her right to property had been
infringed.
Whether her
allegation is true or not is not the issue.
What matters is that she alleged a violation of a fundamental human right
and as such the Court was properly seized with the matter. The question of the veracity of the
allegation would have been tested on the basis of evidence placed before the
Court.
The Court agrees
with Mr Mpofu that there is an
application before it to dismiss. Having
made this finding, the Court also accepts Mr Mpofu's preliminary point that the applicant should have exhausted
the remedy of an appeal instead of making a constitutional application. The law provides a clear remedy of an appeal
where an applicant is not happy with a decision of a lower court. Competent relief could have been granted by
the Supreme Court, on appeal since all that the applicant wanted was an order
that the property in dispute was not especially executable and subject to sale
by execution.
In State v Mhlungu 1995 3 SA 867 (CC) at
para. 59, a general principle is laid down to the effect that where it is
possible to decide any case, civil or criminal, without reaching a
constitutional issue, that is the course which should be followed.
In MEC for Development Planning & Local
Government, Gauteng v Democratic Party 1998(4) SA 1157 (CC) it was said:
“Where
there are both constitutional issues and other issues in the appeal, it will
seldom be in the interests of justice that the appeal be brought directly to
this Court.”
Useful guidance can also be gleaned
from the decisions of the United States Supreme Court. In Spector
Motor Services, inc. V. Mclaughlin, 323 U.S. 101, 103 (1944), JUSTICE
FRANKFURTER remarked:
“[i]
there is no doctrine more deeply rooted than any other in the process of
constitutional adjudication, it is that we ought not pass on questions of
constitutionality ….unless such adjudication is unavoidable.”
In Ashwander V. Tenessee Valley Authority
(TVA) 297 U.S. 288, 345-48, (1936) the Court held:
“The
last resort rule states that a court should “not pass upon a constitutional
question ….if there is also present some other ground upon which the case may
be disposed of.”
It was the
unanimous decision of the Court that the matter be dismissed.
COSTS
The
applicant, through Mr Uriri offered
to pay costs on the ordinary scale. However, Mr Mpofu for the first respondent argued that the applicant should be
mulcted with costs on the legal practitioner and own client scale. It was his submission that the matter,
between the same parties, on the same facts and for the same relief had
previously been brought by the applicant under a different case no. CCZ 31/15,
and had been struck off the roll. It was
Mr Mpofu's submission that the Court
in that earlier case had highlighted the defects in the application to the
applicant's legal practitioners. The
same application has been brought with the same defects.
While
it is rare for the Court to grant costs on a higher scale in constitutional
matters, it is the unanimous view of the Court that the applicant's conduct
justifies such an award of costs. The
defects that afflicted the first application were not attended to. Just as was the case with the previous
application it has not been shown in the founding affidavit how s 71(3) of the
Constitution has been infringed. There
is no doubt that the application should not have been brought to the Court.
CHIDYAUSIKU CJ: I agree
ZIYAMBI JCC: I agree
GWAUNZA JCC: I agree
GOWORA JCC: I agree
GUVAVA JCC: I agree
MAVANGIRA JCC: I
agree
BHUNU JCC: I agree
UCHENA JCC: I agree
Messrs Chinawa Law
Chambers, applicant's legal practitioners
Messrs Coghlan, Welsh
& Guest, first respondent's legal practitioners
