This is a Constitutional Court Application in terms of section 85(1)
of the Constitution of Zimbabwe (the Constitution).
The applicant's contention is that an award of costs made
against him in litigation in the High Court of Zimbabwe infringes his rights as
enshrined in section 69(4) of the Constitution.
The factual background of the matter is that the applicant
issued summons out of the High Court of Zimbabwe. The respondent was one of two
defendants cited. The respondents raised an exception to the plaintiff's claim
in terms of Order 21 Rule 137(1)(b) of the High Court Rules and also made an
application to strike out in terms of subparagraph (c) of the same Rule. The
applicant opposed the application and also applied for summary judgment in
terms of Rule 64. The exception and application to strike out were upheld and
the application for summary judgment was dismissed with costs.
The premise of this application is that the costs allowed
by the court a quo against the applicant infringe his rights enshrined in section
69(4) of the Constitution (s 69(4)). The section provides that:
“(4) Every person has a right, at their own expense, to
choose and be represented by a legal practitioner before any court, tribunal or
forum.”
The applicant further contends that S.I.12 of 2011 as
amended by S.I.107 of 2011, in terms of which the bill of costs that was raised
was taxed, is inconsistent with section 69(4).
The issue that appears to arise for determination is
whether the rationale of costs in our courts contradicts section 69(4) and
whether the section therefore precludes a successful litigant from claiming
costs from the losing party.
But before that discourse can arise or be entertained, it
is of importance to first establish whether this application is properly before
this court, for, if it is not, then the issue cannot properly be determined in
these proceedings.
Has the applicant approached the correct forum for relief?
During the course of the applicant's submissions before
this Court it was posited to him that section 69(4) does not preclude a
successful party from claiming costs from the losing party. In his response,
the applicant said that section 167(5)(b) gives him the right to approach
the court.
Section 167(5)(b) reads:
“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 –
…,.
(b) To appeal directly to the Constitutional Court from any
other court.”
The applicant further made several submissions. He
submitted that the court should treat his case as an appeal; that he had not
had a fair hearing; that the order of costs against him is in fact punishment;
that his application before this Court is not frivolous and vexatious and that
what he is seeking from this court is what he would call clemency.
In terms of section 167(1)(a), (b) and (c), the
Constitutional Court is the highest court dealing with constitutional matters.
It decides only constitutional matters and issues connected with decisions on
constitutional matters. The Constitutional Court also makes the final decision
whether a matter is a constitutional matter or whether an issue is connected
with a decision on a constitutional matter.
Section 332 of the Constitution defines a 'constitutional matter'
thus:
“…, a matter in which there is an issue involving the
interpretation, protection or enforcement of this Constitution.”
The applicant purports to challenge the constitutionality
of the order of costs that was awarded against him in the court a quo. He, in
oral submissions, asked the court to treat his application as an appeal.
The fact of the matter is that the applicant did not file
an appeal against the court a quo's decision.
He filed an application and it must be treated as such. It is not an appeal to
this court in terms of the Constitution.
It is not open to a litigant to change midstream the
jurisdictional basis upon which he or she approaches the court.
Even if it was legally permissible to change the nature of
the proceedings, as vainly attempted by the applicant, this Court would, in any
event, be handicapped to deal with the matter as an appeal for the reason that
no grounds have been raised pointing to the alleged error or misdirection of
the court a quo by reason of which this Court would interfere with the lower
court's order of costs.
The applicant's request that his matter be treated as an
appeal is further made untenable by the fact that the constitutional issue
purported to be raised before this Court was not raised before the court a quo.
An appeal, by definition, relates to a request being made to a higher tribunal
or court for the alteration of the decision of a lower one.
In casu, the court a quo was not invited to, and neither
did it, make a decision on the issue now sought to be determined by this Court.
The applicant's request that his application be dealt with
as an appeal lays bare the reality that the applicant's reason for approaching
this court is the fact that he is aggrieved by the High Court's decision to
award costs against him. In Everjoy Meda v Maxwell Matsvimbo & Others CC10-16,
MALABA DCJ…, stated:
“…, 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…,.”
In the South African case of State v Mhlungu 1995 (3) SA
867 (CC)…, cited with approval in Everjoy Meda v Maxwell Matsvimbo & Others
CC10-16, it was stated that where it is possible to decide any case, whether
civil or criminal, without reaching a constitutional issue, that is the course
that should be followed. Also cited with approval is the United States Supreme
Court decision in Spector Motor Service, Inc v Mclaughlin, 323 US 101, 103 (1944), where the following remark is made:
“…, if there is one 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 Livera Trading (Pvt) Ltd & Ors v Tornbridge Assets
Ltd & Ors CC13-16, ZIYAMBI JCC stated…,:
“Decisions of this Court have indicated that where there
are other remedies available, an applicant must pursue those remedies before
approaching the Constitutional Court. If the applicant's grievances may be
remedied by proceedings in another court that is the route that the applicant
must take.”
In casu, the applicant had other options to pursue in
seeking relief before approaching the highest court in the land with regards to
constitutional matters. The applicant had the option to appeal to the Supreme
Court in terms of section 43 of the High Court Act [Chapter 7:06]. The
section provides:
“43 Right of appeal
from High Court in civil cases
(1) Subject to this section, an appeal in any civil case
shall lie to the Supreme Court from any judgment of the High Court, whether in
the exercise of its original or its appellate jurisdiction.”
The applicant could have noted an appeal against the
decision by the court a quo in awarding costs against him. By seeking redress
from this Court the applicant has adopted the wrong approach. He ought to have
exhausted the avenues otherwise available to him before approaching the
Constitutional Court as he has done.
In essence, this application falls foul of the doctrine of
constitutional avoidance as the relief sought could have been granted by the
Supreme Court. The doctrine is closely related to the doctrine of ripeness
which entails that the court should not adjudicate a matter that is not ready
for adjudication. The court is prevented from prematurely deciding on an issue
that could be decided on a basis other than a constitutional one.
This application is thus not properly before the Court. Accordingly,
it is ordered as follows:
“1. The application is struck off the roll.
2. There is no order as to costs.”
