HLATSHWAYO
JCC: This
is an application for relief made in terms of s 85 (1) (a) of the
Constitution of Zimbabwe Amendment (No. 20) Act 2013 (“the
Constitution”).
The
applicant seeks a declaration that its right to fair administrative
justice provided for in s 68 (1) of the Constitution and its right to
freedom of association in s 58 (1) of the Constitution have been
infringed by the conduct of the first, second and fourth respondents
arising from the issue of a summary notice on 22 February 2016
declaring Special Grant No. 4765 to be void. The applicant is
also seeking an order directing the second respondent and any police
officer acting under the instructions of the first and second
respondents to cease any action that has the effect of preventing the
applicant from lawfully accessing and conducting its business in the
area encompassed by Special Grant No. 4765. Further, the applicant
seeks a declaration to the effect that the fourth respondent cease
forthwith to claim any right or benefit from the area encompassed by
special Grant No. 4765 issued to applicant. An order of costs on a
legal practitioner and client scale against the first, second and
fourth respondents, jointly and severally, the one paying the others
to be absolved, is also being sought by the applicant.
The
factual background leading to this application is set out hereunder.
Background
The
applicant is a mining company incorporated in terms of the laws of
Zimbabwe. Until the 22 February 2016, the applicant was one of the
many companies that were carrying out mining operations in Chiadzwa,
Marange District.
Through
a letter dated 22 February 2016, the Secretary for Mines and Mining
Development communicated to the applicant's chief executive officer
that Special Grants 4765 and 5247 for diamonds that had been issued
to the applicant had since expired and, consequently, the applicant
was to cease all mining activities with immediate effect. The
applicant was also ordered to vacate the mining areas covered by the
two special Grants.
On
the same date, the Minister of Mines and Mining Development issued a
press statement on the consolidation of all diamond mining activities
in the grant areas. The statement declared that the government of
Zimbabwe had resolved to consolidate the diamond mining entities that
were either already conducting mining activities or those that
intended to do so in future, in the area.
This
decision by the government of Zimbabwe to, firstly, declare Special
Grants 4765 and 5247 void and, secondly, consolidate all mining
entities in Chiadzwa, did not find favour with the applicant. The
applicant avers that the above decisions had a material and ongoing
prejudicial effect on it. The applicant's right to property was
also violated by this decision according to the applicant.
The
applicant filed an urgent chamber application with the High Court in
Case No. HC 2183/16. It must be noted that the parties
before the High Court in the urgent application, although not
identical, are substantially similar to the ones before this court.
Before the High Court were three respondents, namely, the Minister of
Mines & Mining Development, the Minister of Home Affairs and the
Commissioner- General of the Zimbabwe Republic Police. The Zimbabwe
Mining Development Corporation (which falls under the Ministry of
Mines and Mining Development) and the Zimbabwe Consolidated Diamond
Company (an outcome and vehicle of the consolidation policy) were not
parties before the High Court but are parties in casu.
In the urgent application, the applicant sought interim relief
setting aside the first respondent's directive and having the
parties return to the status
quo
ante
22 February, 2016.
Seized
with the urgent application, the High Court dismissed it on grounds,
inter
alia,
that the Special Grants 4765 and 5247 had ceased to exist five years
ago ex
lege.
This High Court decision has not been appealed against. It remains
extant. What is before this Court is a direct application to the
Constitutional Court in terms of s 85 (1) (a) and not an appeal
directly to the Constitutional Court from the High Court.
The
respondents have fervently opposed the application. The first
respondent in particular took a number of preliminary points, among
them that the application is improperly before the court as it
appears to be a response to the judgment of the High Court. The
proper recourse the applicant should have taken was to appeal the
High Court judgment and not to mount a direct application to this
Court.
The
second preliminary point taken is that the cause of action is res
judicata.
The third preliminary point taken is that the applicant has a
substituting non-constitutional remedy which it could have utilised
before approaching this Court. In other words, the first respondent
argues that the principle of avoidance finds application in this
matter. The final preliminary point raised is that the relief sought
seeks to perpetuate an illegality.
At
the hearing, parties extensively made argument on the preliminary
points raised and judgment thereon was reserved. I will address the
preliminary points raised hereunder.
Whether
or not the application is properly before the court
The
first and second preliminary points raised by the first respondent
will be addressed under the same heading above. The first respondent
in his opposing affidavit takes the point that the application is
improperly before this Court. The basis of this argument is that the
application was brought in response to the judgment of the High Court
per Mr Justice MANGOTA in Anjin
Investments (Private) Limited v The Minister of Mines & Mining
Development & Ors
HH-228-16. Could it be said that the application this Court is seized
with is a disguised appeal which should have been brought in terms of
s 167 (5) (b) of the Constitution? It would appear so, and for a very
good reason that a proper appeal could not have been validly pursued
from the High Court proceedings.
Before
the court a quo
was an application for interim relief. No constitutional question was
decided by the court a quo
which the applicant could have appealed against in terms of s 167 (5)
(b) of the Constitution. Hence this disguised attempt to reverse the
High Court decision.
The
second preliminary point taken is that the cause of action is res
judicata.
The principle of res
judicata
precludes the court from re-opening a case that has been litigated to
finality. The principle was aptly defined in the case of Custom
Credit Corporation (Pty) Ltd v Shembe 1972
(3) SA 462 (A) at 472 A-B. The South African Appellate Division had
this to say:
“If a cause of action has been
finally litigated between the parties, then a subsequent attempt by
one to proceed against the other on the same cause for the same
relief can be met by an exceptio
rei judicatae vel litis finitae.”
The
immediate question then is whether the same cause for the same relief
between the same parties or their privies has been pursued by the
applicant in casu,
after the matter has been finally determined?
To
be successful, where res
judicata
is raised, all the requisites for the plea must exist. These
requisites were didactically stated in the case of African
Wanderers Football Club (Pty) Ltd v Wanderers Football Club
1977 (2) SA 38 (A) at 45 E-G as follows:
“There is nevertheless no room
for this exception (of res
judicata) unless a
suit which had been brought to an end is set in motion afresh between
the same persons about the same matter and on the same cause for
claiming, so that the exception falls away if one of these three
things is lacking.”
What
was before the court a quo
was an urgent application for interim relief with the effect of
reinstating the applicant to the status
quo
ante.
In the present case, the applicant is seeking a declaration that
certain of its fundamental rights have been violated. In the event
that this Court is to agree with the applicant, it seeks an order
that has the effect of restoring the status
quo
ante,
that is, the applicant retains powers to mine in Chiadzwa. Although
the basis
of
the application has changed with the introduction of the
constitutional question, the effect
of the relief sought remains the same. Whether this disjuncture
between the bases upon which relief is sought while the effect
remains the same negates the plea of res
judicata
at all or only in specific circumstances I will leave open for now as
there are other less disputable grounds upon which this matter may be
resolved.
Similarly,
although the parties in the High Court are not identical to current
ones, they are similar as indicated earlier and, in my view, may be
taken as privies of those now before this Court.
Whether
the applicant has a substituting non-constitutional remedy
All
respondents argue that this is a proper case for the application of
the avoidance principle. At the centre of the avoidance principle is
the concept of ripeness which dictates that a court should not
adjudicate a matter that is not ready for resolution. The
Constitutional Court is thus prevented from deciding on an issue too
early, when it could be decided by means of legislation subordinate
to the constitution, general criminal or civil law and should not be
made into a constitutional issue. In the case of National
Coalition for Gay & Lesbian Equality & Others v Minister of
Home Affairs & Others
2000 (2) SA 1 (CC) for example, it was held that:
“Ripeness and constitutional
avoidance are sometimes inter-related. If it is possible to decide a
matter without determining the constitutional validity of legislation
or other action, the principle of avoidance may lead to the
conclusion that the constitutional question is not ripe to be
determined. While the concept of ripeness is not precisely defined,
it embraces a general principle 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
our jurisdiction, this Court has had occasion to pronounce on the
principle of avoidance. In the case of Zinyemba
v Minister of Lands & Rural Settlement and Anor
CCZ 6/16, this Court reiterated the need to observe the
avoidance principle. MALABA DCJ (as he then was) concluded that
remedies should be found in legislation before resorting to
constitutional ones:
“Two principles discourage
reliance on the Constitutional rights to administrative justice. The
first is the principle of avoidance which dictates that remedies
should be found in legislation before resorting to Constitutional
remedies. The second principle is one of subsidiarity which holds
that the norms of greater specificity should be relied on before
norms of greater abstraction.
The applicant is not challenging
the constitutional validity of any provision of AJA (Administrative
Justice Act) nor is she seeking to use the constitutional rights to
administrative justice to interpret the provisions of AJA. The
exceptional circumstances in which an applicant can rely on the
constitutional rights to administrative justice do not apply to the
applicant. She ought to have used the remedies provided for under
AJA to enforce her rights to just administrative conduct.”
The
pith of the present application is that certain rights of the
applicant enshrined in the Constitution have been violated. The
applicant avers that its right to fair administrative conduct and due
process as guaranteed in s 68 (1) of the Constitution have been
violated. The applicant further avers that its right to property in
terms of s 71 (2) of the constitution has been violated. The final
allegation is that applicant's right to freedom of association in
terms of s 58 (1) has also been infringed. It is alleged
that the action and conduct of the first, second and fourth
respondents since 22 February 2016, which conduct persists, has been
violating the above-mentioned fundamental rights of the applicant.
The
right to just administrative action which forms the bulk of the
applicant's argument is protected under the Administrative Justice
Act [Chapter
10:28].
The allegation of violation of the right to property as well as the
right to freedom of association finds its root in the decision taken
or communicated on 22 February 2016. The issuing of a Special Grant
by the Secretary for Mines and Mining Development in terms of s 291
of the Mines and Minerals Act [Chapter
21:05]
is an administrative decision in term of the Administrative Justice
Act. The terms on which the Special Grant is issued, including when
it will expire, is governed by the Mine and Minerals Act.
The
import of the letter dated 22 February 2016 is that there was no
valid Special Grant issued in the first place for want of specifying
the lifespan of the special grant as required in s 291 of the Mines
and Minerals Act. The letter also communicated that the Special
Grants were deemed to have been granted for the period which
applicant had requested in its application. The decision taken by the
Ministry of Mines undoubtedly is an administrative action whose
legality is prescribed in relevant specific legislation in particular
and the Administrative Justice Act, in general.
The
press statement declaring the issued Special Grants void without
affording the applicant an opportunity to be heard can be addressed
in terms of the Administrative Justice Act. The applicant's
founding affidavit registers grief over the lack of prior warning on
the impugned decision of. Section 4 (1) of the Administrative
Justice Act provides for relief against administrative authorities.
The
applicant is also at pains to point out that it was not given an
opportunity to make representations before the Special Grants
conferred to it were cancelled. Clause 10 (ii) of the Special Grant
mandates the Secretary for Mines and Mining Development to afford the
holder of a special grant a reasonable opportunity to make
representations in the matter. The applicant in its founding
affidavit laments the failure to afford it a reasonable opportunity
to make representations before its grant was declared void. This
alleged failure is adequately addressed in the Administrative Justice
Act. The common law tenets of natural justice also encompassed in the
Act can adequately address the grievance of the applicant.
In
the event that the applicant is of the view that the High Court erred
in not properly applying the rules of natural justice, the appeal
avenue is open to the applicant to pursue. One is puzzled why the
applicant has not appealed the decision of the High Court if it feels
the court a quo
erred or misdirected itself in any way.
The
substantive issues raised by the applicant are capable of
determination outside the constitutional framework. That being the
case, this Court ought not to assume jurisdiction over the issues.
The finding in S
v Mhlungu
1995(3) SA 867 (CC) is apposite wherein it was held:
“I would lay it down as a
general principle 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.”
This
matter can adequately be determined without raising any
constitutional issues. Assuming that the applicant's allegations
are correct, they can be addressed in terms of specialised
legislation, the Administrative Act and the common law. In the same
vein, in S
v Dlamini
1999 (4) SA 623 (CC) it was held that:
“As a matter of judicial
policy, constitutional issues are generally to be considered only if
and when it is necessary to do so.”
It
is therefore not necessary to determine or consider the issues raised
by the applicant in this Court as such issues can be considered by
the Administrative Court or the High Court. The matter is therefore
not ripe to be heard by the Constitutional Court.
Perhaps
it bears reiteration for the benefit of legal practitioners in
particular and litigants in general that this Court in mandated to
deal with constitutional matters only, that is, matters in which
there are issues or aspects of the interpretation, protection or
enforcement of the constitution. Litigants must disabuse themselves
of the tendency to invariably seek direct access to the
Constitutional Court whenever their causes of action have a mildly
constitutional flavour. There are a myriad and often more
efficacious and speedier other avenues that the litigants can use,
and certainly, such avenues existed which the current applicant could
have adequately used to address its cause without raising a
constitutional question.
In
the light of this finding, it is unnecessary to address the last
preliminary point pertain to alleged illegality.
Costs
The
applicant prayed for costs of suit on a legal practitioner and client
scale. The first respondent also prayed for the dismissal of the
application with costs on a punitive scale.
While
the issue of costs is within the province of the court's
discretion, sight should not be lost of the cardinal rule that
constitutional litigation, whatever the outcome, might ordinarily
bear not only on the interests of the particular litigants involved,
but on the rights of all those in similar situations, i.e the broader
public. In fact, it has the effect of enriching the general body of
constitutional jurisprudence and adding texture to what it means to
be living in a constitutional democracy. See Biowatch
Trust v Registrar Genetic Resources and Others
2009 (6) SA 232 (CC).
Nonetheless,
constitutional litigation must be conducted without abuse of the
court processes, which may attract punitive costs. However, the first
respondent has not produced evidence of such abuse as would have
necessitated the levying of punitive costs. Therefore, the ordinary
rule that costs follow the outcome should apply in this matter.
In
the result, the application is dismissed with costs on the ordinary
scale.
MALABA
CJ: I
agree
GWAUNZA
JCC: I
agree
GOWORA
JCC: I
agree
PATEL
JCC: I
agree
GUVAVA
JCC: I
agree
MAVANGIRA
JCC: I
agree
UCHENA
JCC: I
agree
ZIYAMBI
AJCC: I
agree
Hussein
Ranchod & Co,
applicant's legal practitioners
Civil
Division of the Attorney General's Office,
first and second respondents' legal practitioners
Sawyer
& Mkushi,
third and fourth respondents' legal practitioners
