Before:
MALABA CJ, In
Chambers
The
applicant approached the Constitutional Court (“the Court”)
in
terms of Rule 32(2) of the Constitutional Court Rules, 2016 (“the
Rules”) seeking leave to appeal against an order of the Supreme
Court (“the court a
quo”)
which
was couched as follows:
“WHEREUPON,
after
reading documents filed of record,
IT
IS ORDERED THAT:
The
appeal having been withdrawn,
the appeal be and is hereby dismissed with no order as to costs.”
(emphasis added)
The
facts leading to the application are as follows.
The
applicant owned an immovable property which was sold to the second
respondent by the first respondent. It is averred that the property
was subsequently transferred into the second respondent's name by
the fourth respondent at the instance of the first respondent. The
applicant was aggrieved by the sale and transfer of the
property
and approached the High Court seeking an order setting them aside.
The
applicant's case in the High Court was that the sale and transfer
of the property was driven by unfairness, impartiality and lack of
independence. The High Court did not find in his favour. The
applicant noted an appeal against the decision to the court
a
quo.
On the day of the hearing of the appeal, the court
a
quo
issued
the order set out at the beginning of the judgment. It
is against the order that the applicant seeks leave to appeal to the
Court.
In
his founding affidavit, the applicant contended that the court a
quo
infringed his right to a fair hearing by acting as if it had no power
to reverse an illegal transfer of a property. The applicant alleged
that the court a
quo
had not acted
impartially.
He said the court a
quo acted
unfairly when it failed to set aside the transfer of the property
when it had been made aware that there was a court action to stop the
transfer of the property. He alleged further that the court a
quo
ignored evidence to the effect that “Court Officers manipulated
processes by misleading a High Court Judge that culminated in the
appellant being evicted from the property in question”.
According
to the applicant, the court a
quo
had to call the respondents to account for what he said was criminal
behaviour. Failure to do so showed lack of independence on the part
of the court a
quo.
The applicant also alleged that he withdrew the appeal as a result of
pressure put on him by the court a
quo.
In
his notice of opposition, the first respondent stated that he sold
the property in question to a properly regulated trust and the sale
of the property was above board. The first respondent denied the
allegation that a caveat
had been placed on the property to prevent it from being sold. The
first respondent prayed that the application be dismissed with costs
on the higher scale because he had been put out of pocket by
defending the applicant's claims.
In
its opposing affidavit, the second respondent contended that the
applicant voluntarily withdrew the notice of appeal because it was
fatally defective, in that the relief sought differed materially from
the relief sought in the High Court. The second respondent averred
that the applicant was given time to make submissions to the court a
quo,
hence his right to a fair trial was not violated. It contended that
the intended appeal would serve no purpose, as the property in
question had already been transferred into the second respondent's
name.
Ms
Nhare,
for the first respondent, submitted that an application for leave to
appeal may be brought in terms of Rule 32(2) of the Rules only where
a party is aggrieved by a decision of a subordinate court on a
constitutional matter. She submitted that, since the applicant had
withdrawn the appeal, there was no determination of the court a
quo
which could be the subject of an appeal to the Court.
Ms
Nhare
further
submitted that the applicant had failed to satisfy Rule 32(3)(c) of
the Rules, which requires that in an application of this nature one
has to attach a clear and concise statement as to the constitutional
matter that had been raised in the subordinate court. She prayed that
the application be dismissed with costs on the higher scale, as no
constitutional issues had been brought before the Court. She was of
the view that the application was frivolous and vexatious.
Mr
Mutandagumbo,
for the second respondent, submitted that it was important to take
note of the legal effects of a withdrawal. He submitted that the
withdrawal of a matter is the end of it and no appeal can be made
attacking that withdrawal. In the absence of a judgment of the court
a
quo,
there was no basis on which the decision on whether the requirements
of the procedure of an application for leave to appeal have been met
could be made. He also argued that no constitutional issues were
raised and determined by the court a
quo.
In
reply, the applicant insisted that he be granted leave to appeal
despite the concession that there was no judgment to appeal against.
The applicant also submitted that he could not have raised any
constitutional issues in the High Court or the court a
quo
because no constitutional issues had arisen at the time that the
hearing of the dispute was playing out in either
of
the two courts.
DETERMINATION
OF THE ISSUES
WHETHER
IT IS IN THE INTERESTS OF JUSTICE TO GRANT THE APPLICANT LEAVE TO
APPEAL
In
terms of section 167(5)(b)
of
the Constitution of Zimbabwe Amendment (No.20) Act, 2013 (“the
Constitution”), the Rules must allow a person, when it is in the
interests of justice and with or without leave of the Court, to
appeal directly to the Court from any other court.
Rule
32(2) and (3) of the Rules give effect to section 167(5)(b) of the
Constitution. It provides as follows:
“Leave
to appeal
32.
(1)…
(2)
A litigant who is aggrieved
by the decision of a subordinate court on a constitutional matter
only, and wishes to
appeal against it to the Court, shall within fifteen days of the
decision, file with the Registrar an application for leave to appeal
and shall serve a copy of the application on the other parties to the
case in question, citing them as respondents.
(3)
An application in terms of subrule (2) shall be signed by the
applicant or his or her legal practitioner and shall contain or have
attached to it –
(a)
the draft notice of appeal; and
(b)
the decision against
which an appeal is brought and the grounds upon which such decision
is disputed; and
(c)
a statement setting out
clearly and concisely the constitutional matter raised in the
decision and any other issues, including issues that are alleged to
be connected with a decision on the constitutional matter;
and
(d)
such supplementary information or submissions as the applicant
considers should be brought to the attention of the Court.”
(emphasis added)
Section
167(1)(b) of the Constitution makes it clear that the jurisdiction of
the Court is limited to deciding only constitutional matters and
issues connected with decisions on constitutional matters. It is the
highest court in all constitutional matters.
In
Lytton
Investments (Pvt) Ltd
v Standard
Chartered Bank Zimbabwe Ltd and Anor
CCZ 11-18 at p9 of the cyclostyled judgment the Court said:
“The
Court is a specialised institution, specifically constituted as a
Constitutional Court with the narrow jurisdiction of hearing and
determining constitutional matters only. It is the supreme guardian
of the Constitution and uses the text of the Constitution as its
yardstick to assure its true narrative force. It uses constitutional
review predominantly, albeit not exclusively, in the exercise of its
jurisdiction.”
The
applicant sought to enforce his right of access to the Court by
filing an application for leave to appeal against a non-existent
decision of the court a
quo. The court a
quo did not make any
decision, the substance and effect of which threatened violation of a
provision of the Constitution.
The
purpose of the right of appeal granted to a person under Rule 32(2),
the procedure of an application for leave to appeal provided therein,
and the contents of the application required under Rule 32(3)(c), of
the Rules are premised on the existence of a decision by a
subordinate court on a constitutional matter.
The
purpose of the Rules is to ensure proper exercise of jurisdiction by
the Court. The matter that gives rise to the need for the Court to
exercise its jurisdiction must be a constitutional matter decided by
the subordinate court.
The
object of the exercise of jurisdiction by the Court is always the
protection, promotion and enforcement of the supremacy of the
Constitution. Where there is no decision by a subordinate court to
justify the allegation of actual or threatened violation of a
constitutional provision, the Court would have no cause for the
exercise of its jurisdiction.
There
has to be proof of a decision which was made by the subordinate
court. That decision has to be on a constitutional matter. Where
proceedings in the subordinate court were terminated by a withdrawal
of a cause of action, there cannot be a decision of the subordinate
court to be appealed against. There is a decision of the person who
instituted the proceedings to terminate them.
In
The
Cold Chain (Pvt) Ltd t/a Sea Harvest v Makoni CCZ
8/17, the Court, at pp3-5 of the cyclostyled judgment, said:
“… there
must have been a constitutional matter raised in the subordinate
court by the determination of which the dispute between the parties
was resolved by that court. If
the subordinate court had no constitutional matter before it to hear
and determine, no grounds of appeal can lie to the Constitutional
Court as a litigant cannot allege that the subordinate court
misdirected itself in respect of a matter it was never called upon to
decide for the purposes of the resolution of the dispute between the
parties. …
There
ought to have been a need for the subordinate court to interpret,
protect or enforce the Constitution in the resolution of the issue or
issues raised by the parties. The constitutional question must have
been properly raised in the court below. Thus, the issue must be
presented before the court of first instance and raised again at or
at least be passed upon by the Supreme Court, if one was taken.
For
an applicant to succeed in an application of this nature, he or she
must show that the constitutional issue raised in the court a
quo is one
which the determination by the court was necessary for the
disposition of the dispute between the parties. In other words, the
decision on the constitutional matter must have been so inextricably
linked to the disposition of the controversy between the parties that
the success or failure of the relief sought was dependent on it.”
(emphasis added)
The
decision to withdraw a matter from a court's roll is a personal
one, contrary to the allegation by the applicant that the court a
quo
withdrew the matter on his behalf.
COSTS
The
applicant seemed to be the victim of a deep-seated bitterness over
the manner in which his property was sold. He had the belief, which
is shared by many self-actors prosecuting their cases in the Court,
that the Constitution has a remedy for every conceivable legal
dispute regardless of procedural requirements and merits of the case.
It was out of the consideration of the fact that the applicant is a
victim of this genuine misconception of the Constitution as a
document containing remedies for all conceivable disputes that the
Court did not find the submissions that the applicant be ordered to
pay costs on a legal practitioner and client scale convincing.
DISPOSITION
The
application is dismissed with no order as to costs.
PATEL
JCC: I agree
GUVAVA
JCC: I agree
C.
Nhemwa & Associates,
first respondent's legal practitioners
T.K.
Takaindisa Law Chambers,
second respondent's legal practitioners
