MALABA
DCJ: After
perusing documents filed of record and hearing counsel, the unanimous decision
of the Court was that the matter be dismissed with costs on a legal
practitioner and client scale.
The
appellants approached the Court on what they term an appeal from the Supreme
Court. Section 167(1)(a) of the
Constitution of the Republic of Zimbabwe Amendment (No. 20) 2013 (“the
Constitution”), establishes the Constitutional Court as the highest court in
all constitutional matters. Section
167(1)(b) of the Constitution provides that the Constitutional Court decides
only constitutional matters and issues connected with decisions on
constitutional matters. A constitutional
matter is defined under s 332 of the Constitution to mean a matter in which there
is an issue involving the interpretation, protection or enforcement of the
Constitution. The issue raised before a
court will be sufficient evidence of the existence of a constitutional matter
to the extent that its determination requires the interpretation, protection or
enforcement of the Constitution.
The appellants
approached the Court in terms of s 167(5) of the Constitution which
provides:
“(5)
Rules of the Constitutional Court must allow a person, when it is in the
interests of justice and with or without leave of the Constitutional Court –
(a) to bring a constitutional matter directly
to the Constitutional Court;
(b) to appeal directly to the Constitutional
Court from any other court;
(c) to appear as a friend of
the court.”
As the appellants
approached the Court before the promulgation of the Constitutional Court Rules
2016 (S.I. 61 of 2016) it fell upon the Court to decide whether the Supreme
Court arrived at the judgment purportedly appealed against upon determination
of a constitutional matter as defined in s 332 of the Constitution. If the court finds that no constitutional issue
was placed before the Supreme Court for it to determine in arriving at its
decision, it would not be in the interests of justice to allow the appellants
to appeal directly to the Constitutional Court from the judgment of the Supreme
Court. Section 169(i) of the
Constitution provides that the Supreme Court is the final court of appeal for
Zimbabwe except in matters over which the Constitutional Court has jurisdiction.
The respondents
are the Trustees of the Leonard Cheshire Homes Central Trust established by a
Notarial Deed of Trust on 2 April 1981.
The mandate of the Trust, as appears from the Deed of Trust, is to
provide homes, shelter, care to and rehabilitation of persons with permanent
physical disabilities. The respondents
administer, on behalf of the Trust, a property known as Number 85 Baines
Avenue, Harare, commonly known as Masterson Cheshire Home.
The appellants,
who are all persons with permanent physical disabilities, are occupants of the
said property. They benefitted from the main objective of the Trust. They have been occupants of the property for
a long period having been admitted into the home in the 1990s. Over the years relations between the
appellants and the respondents soured to the extent that on 2 August 2004 the
Trustees instituted proceedings in the High Court for an order for the eviction
of the appellants. The allegations were
that the appellants were illegally leasing out the home to third parties and
pocketing the rentals. The actions of
the appellants created conditions of significant wear and damage to the
property. They prevented the respondents
from accessing the property for inspection and carrying out of repairs.
The appellants
opposed the action for an order for their eviction. The High Court ruled against the respondents
on the ground that their terms of office had expired at the time the decisions
to evict the appellants from the premises were made. The learned Judge took the view that the
question of the expiry of the tenures of office of the Trustees had a bearing on
the question of the validity of the decisions that were made in respect of the closure
of the Home on 30 November 1999 and 26 July 2004. He held that the decision made by the
Trustees on 26 July 2004 to evict the appellants was invalid. The respondents' case was dismissed with
costs.
The respondents
appealed to the Supreme Court, which overturned the High Court judgment on the
basis that the High Court had erred in finding that the terms of the Trustees
had expired. As a result, the Supreme
Court confirmed the legality of the eviction notices and upheld the eviction of
the appellants from Number 85 Baines Avenue.
It must be noted
that in all the proceedings before the High Court and the Supreme Court, no
constitutional issue was raised by any of the parties. The matters that constituted the grounds of
appeal which the Supreme Court had to determine and determined are set out at
pp 7 to 8 of the cyclostyled judgment, No. SC 24/2015:
“1. That the court a quo misdirected itself in finding that the issue whether the
appellants had exceeded their five year terms in terms of Clause 5(c) of the
Deed of Trust was a question of law as opposed to an issue of fact.
2. The
court a quo further fundamentally
misdirected itself in allowing the respondents to raise the new issue which was
not pleaded in their pleadings with the first witness for the appellant. The court a
quo therefore erred in over – ruling the appellant's objection to the
respondents' raising of a new defence at the trial.
3. The
court a quo further misdirected
itself in finding that the appellant had the onus to prove that the Trustees had not exceeded their five year
terms and were therefore entitled to make a resolution for the ejectment of the
respondents thereby making the appellant liable to prove the respondents' new
defence.
4. The
court a quo further erred in making
findings of fact on the question of whether the Trustees had exceeded the
five-year term limit in terms of the Deed of Trust based on complete and
inconclusive evidence led by the parties thereby contradicting an earlier
finding that the issue was a point of law.
5. The
court a quo further misdirected
itself in failing to find that the respondents had abandoned and not proved
their pleaded defence, that is that upon being accepted as beneficiaries to the
trust, they were promised to live at the premises in issue, No. 85 Baines Avenue,
Harare for life or for as long as they wished.
6. In the event therefore, the court a quo erred in dismissing the appellants'
claim.”
Aggrieved
by the decision of the Supreme Court, the appellants approached this
Court. The purported grounds of appeal
were couched as follows:
“1. The judgment of the court a quo is in breach of the provisions of
s 56(1) of the Constitution of Zimbabwe, for the following reasons:
(a)It countenances the eviction of the
appellants who are personae miserabiles
at the suit of nameless and faceless individuals who have no connection to the
Trust in whose effective names the proceedings were effectively brought.
(b)
A
fortiori
the judgment has led to the total failure of justice.”
At the hearing of
the matter, Mr Chadambuka, argued
that the judgment of the Supreme Court was erroneous in that it was based on
what he described as “suppositions”. It
was his submission that the judgment was a violation of the appellants' right
to equal protection of the law enshrined in s 56(1) of the Constitution. Mr Chadambuka's line of reasoning was
difficult to follow. He persistently
avoided answering the simple question whether the Supreme Court was faced with
a constitutional issue when it determined the appeal against the judgment of the
High Court.
Mr Magwaliba, who appeared for the respondents, argued that no constitutional issue
had been raised before the Supreme Court.
He argued that it would not be in the interest of justice for the Court
to entertain argument on matters over which the Constitution has provided in
clear and unambiguous language that the Supreme Court is the final court of
appeal. The Court is in agreement with Mr Magwaliba
that no constitutional issue was raised by the grounds of appeal determined by
the Supreme Court. In Nyamande & Anor
v ZUVA Petroleum CCZ 8/15, ZIYAMBI JCC, writing for the full Bench of
the Constitutional Court, said at paras 11-12 of the cyclostyled judgment:
“… a
right of appeal could only arise where the Supreme Court makes a decision on a
constitutional matter … .
Since
no constitutional issue was determined by the Supreme Court, no appeal can lie
against its decision.”
What
the Court has before it are disgruntled litigants who have attempted to try and
obtain redress under the guise of an appeal on a constitutional matter. Their criticism of the judgment of the
Supreme Court set out in what purports to be grounds of appeal is no more than
a raging discontent over the factual findings of the Supreme Court. The grievances of the losers in the Supreme
Court have all the hall marks of a mere dissatisfaction with the factual
findings by that Court. See De Lacy & Anor v South African Post
Office 2011(a) BCLR 905(CC) MOSENEKE DCJ paras 28 and 57.
COSTS
In
the De Lacy case supra MOSENEKE DCJ
observed on the issue of costs thus at para 117:
“This
may be the case where the unsuccessful litigant is shown to have acted with
improper motive, or has abused court process; has conducted the case in a
vexatious manner, has not properly adhered to the rules of court, has made
sustained and unwarranted attacks on other litigants or witnesses or judicial
officers concerned or has not pursued the claim in good faith. This limited catalogue is not intended to be
exhaustive in as much as what may be an appropriate costs order, even in
constitutional litigation, and may be conditioned by the circumstances of the
case.”
These
litigants must have known as it was clear from the grounds of appeal on which
the decision by the Supreme Court was based that no constitutional issue had
been raised for determination by the Supreme Court. Without any legal right to approach the Constitutional
Court they nonetheless did so for ulterior motives of further delaying their
eviction from the premises they occupied.
Theirs was a deliberate move in abuse of court process. They went on to derogatively call the
Trustees they knew by name and had accepted in the High Court that they had the
right to act on behalf of the Trust in seeking the eviction order, “nameless
and faceless individuals who have no connection to the Trust”.
For
these reasons it was proper that they be ordered to pay costs on a legal
practitioner and own client scale notwithstanding the fact that this was a case
involving an attempt at constitutional litigation.
It
was for these reasons that an order was made in the following terms:
“1. The matter be and is hereby dismissed
with costs on a legal practitioner and own client scale.”
ZIYAMBI JCC: I agree
GWAUNZA JCC: I agree
GARWE JCC: I agree
GOWORA JCC: I agree
HLATSHWAYO JCC: I agree
GUVAVA
JCC: I agree
MAVANGIRA JCC: I agree
BHUNU JCC: I agree
Lawman Chimuriwo Attorneys at Law,
appellants' legal practitioners
Messrs Hove and
Associates, respondent's legal practitioners
