IN
CHAMBERS
MALABA
CJ:
This
is a chamber application for leave to appeal to the Constitutional
Court (“the Court”)
from
a decision of the Supreme Court in terms of Rule 32(2) of the
Constitutional Court Rules SI 61/2016 (“the Rules”). The rule
provides that “a litigant who is aggrieved by the decision of a
subordinate court on a constitutional matter can apply to the
Constitutional Court for leave to appeal against such decision”.
The
Court holds that the present application is without merit and ought
to be dismissed with costs. The reasons for the decision are set out
below.
The
applicant is a duly registered company and was the owner of a
commercial farm in Chegutu known as Bulfield Farm, measuring
1223.1078 hectares in extent. In 1995 BHP Minerals (“BHP”)
discovered a large platinum deposit in the area and subsequently
acquired mining rights by obtaining a Special Mining Lease in terms
of the Mines and Minerals Act [Chapter
21:05].
BHP was granted a servitude over 788 hectares of the farm in exchange
for four million Zimbabwean dollars and a Notarial Deed of Servitude
was duly registered in respect of the same.
In
2001 another entity, by the name of Hartley Platinum Mines (Pvt) Ltd,
entered into a lease agreement with the applicant, in terms of which
the applicant leased part of the farm. The first respondent
subsequently assumed all the lease rights and mining rights from the
two companies.
In
2000 Bulfield Farm was listed for compulsory acquisition through a
Government
Gazette
dated 1 September 2000. On 15 October 2004 a notice of compulsory
acquisition in terms of section 8 of the Land Acquisition Act
[Chapter
20:10]
(“the Act”)
was
issued in respect of the farm. The effect of that notice was that all
acquired land vested in the State. In 2005 the Constitution of
Zimbabwe was amended by the promulgation of sections 16A and 16B. In
terms of these amendments, all agricultural land that was identified
for acquisition and gazetted by the State was deemed to have been
acquired by the State from the date of gazetting.
After
the expiry of the lease, the first respondent remained in occupation
of the land. It refused
to
renew the lease agreement on the basis that the land had been
acquired by the State and that the applicant had lost all rights and
title to it. The first respondent took the view that the applicant
could not claim rentals for land it did not own.
The
applicant approached the High Court, seeking a declaratory order that
it was entitled to all benefits deriving from the first respondent's
occupation of the section of Bulfield Farm over which the applicant
had passed the Notarial Deed of Servitude. It is pertinent to note at
this point that in its founding affidavit before the High Court the
applicant stated that, although Bulfield Farm had been listed for
compulsory acquisition in 2000, it had objected to the acquisition
and the farm was subsequently delisted through a Government notice.
The
first respondent opposed the application and raised a preliminary
point that the applicant had no locus
standi in judicio
to seek the relief that it did. It averred that the farm having been
compulsorily acquired by the State, ownership now vested in the
State. The applicant had no right to claim rentals over land which it
did not own.
At
the hearing of the matter, the High Court was of the view that the
issue of locus
standi
had to be dealt with first as its resolution
could
dispose of the application in its entirety. The court found that the
applicant had failed to prove its allegation that the farm had been
delisted and ought to be deemed not to have been compulsorily
acquired. It further found that no evidence had been attached by the
applicant in terms of section 5(7) of the Act to show that a notice
had been published in the Government
Gazette
withdrawing the notice of acquisition.
Consequently,
it was held that Bulfield Farm had been compulsorily acquired in
October 2004 when the acquisition order was gazetted and that the
acquisition was given constitutional recognition when the farm was
listed in terms of section 16B(2)(a)(i) of the former Constitution.
The High Court held that the effect of the acquisition of Bulfield
Farm was the alienation of all the applicant's rights in the farm,
save the right to claim compensation from the State for any
improvements effected on it before its acquisition. As ownership now
vested in the State, the court found that the applicant did not have
locus
standi
to institute proceedings claiming payment of rentals by the first
respondent and the application was dismissed.
Aggrieved
by that decision, the applicant noted an appeal to the Supreme Court
(“the court a
quo”)
on
12 July 2017. Whilst the Notice of Appeal was timeously filed with
the Registrar of the court a
quo,
the applicant failed to serve a copy of the notice on the Registrar
of the High Court within the prescribed period, thereby rendering the
Notice of Appeal out of time and fatally defective. Thereafter the
applicant filed an application in the court a
quo
for condonation of the late filing of the appeal and extension of
time within which to appeal.
The
court a
quo
dismissed
the application and found that the applicant had no prospects of
success on appeal. It upheld the High Court's reasoning that the
acquisition of land by the State necessarily meant the extinction of
rights held by the applicant as owner and the consequent loss of
locus
standi
on its part to bring any action based on the extinguished rights.
Further, the court a
quo
found
that the applicant incorrectly sought to challenge the correctness or
otherwise of the acquisition of the land itself by the State, which
issue had not been raised in the High Court and thus could not be
argued on appeal. The sole ground of appeal that the applicant sought
to raise on appeal was held to be incompetent, as the
constitutionality of the acquisition of the land had not been
challenged in the High Court. Accordingly, the court a
quo
dismissed the application.
The
applicant was dissatisfied with that decision and filed the
application on 12 October 2018.
The
requirements of an application of this nature were set out in The
Cold Chain (Pvt) Ltd t/a Sea Harvest
v Makoni
CCZ 8/17 at pp 3-4 of the cyclostyled judgment as follows:
“The
requirements for leave to appeal to the Court from a subordinate
court are these:
(a)
Firstly, there must be a constitutional matter for determination by
the Constitutional Court on appeal. The reason is that in terms of
section 167(1) of the Constitution the Constitutional Court is the
highest court in all constitutional matters and decides only
constitutional matters and issues connected with decisions on
constitutional matters. Rule32(2) of the Constitutional Court Rules
makes it clear that only a litigant who is aggrieved by the decision
of a subordinate court on
a constitutional matter only
has a right to apply for leave to appeal to the Constitutional Court
(the underlining is for emphasis).
Rule
32(3)(c) of the Constitutional Court Rules requires that the
application for leave to appeal should contain or have attached to it
'a statement setting out clearly and concisely the constitutional
matter raised in the decision'. In other words, 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. See Nyamande
& Anor
v Zuva
Petroleum 2015
(2) ZLR 351 (CC).
Under
section 332 of the Constitution a constitutional matter is one in
which there is an issue involving the interpretation, protection or
enforcement of the Constitution. Absence of an issue raised in the
proceedings in the subordinate court requiring the interpretation,
protection or enforcement of a provision of the Constitution in its
hearing and determination would invariably be sufficient evidence of
the fact that no constitutional matter arose in the subordinate
court.
(b)
Secondly, the applicant must show the existence of prospects of
success for leave to be granted. In Nehawu
v University
of Cape Town
2003 (2) BCLR 154 (CC), the Constitutional Court of South Africa held
that the applicant must show that there are reasonable prospects that
the Constitutional Court 'will reverse or materially alter the
judgment if permission to bring the appeal is given'.”
What
is clear from the above authority is the following -
1.
The applicant must intend to apply for leave to appeal against a
decision of a subordinate court on a constitutional matter.
2.
The constitutional question must be clearly and concisely set out.
3.
The applicant must demonstrate prospects of success on appeal.
In
casu,
it is the applicant's contention that a constitutional matter was
raised before the High Court and the court a
quo.
The applicant annexed to the application the founding affidavit in
the application before the High Court, which is said to have raised a
constitutional issue pertaining to the acquisition of a portion of
Bulfield Farm which was the subject of the Servitude Agreement. In
terms of para 34 of the founding affidavit, the applicant sought the
following relief:
“In
the circumstances I seek an order that solely with respect to the
land which is the subject of the servitude, it is ordered that the
provisions of Amendment 17 do not apply to the leased area of the
property and the applicant is entitled to all benefits that flow
therefrom.”
The
draft order to the application read as follows:
“1.
The applicant is entitled to all benefits deriving from the
occupation by the respondent of that section of Bulfield Farm which
is the subject of Notarial Deed of Servitude 11-7-95.
2.
The respondent shall pay the applicant's costs.”
Section
332 of the Constitution defines a constitutional matter as “a
matter in which there is an issue involving the interpretation,
protection or enforcement of this Constitution”. What constitutes a
constitutional matter was discussed by the Court in Moyo
v Sergeant
Chacha & Ors
CCZ 19/17 at p 15 of the cyclostyled judgment
as
follows:
“The
import of the definition of 'constitutional matter' is that the
Constitutional Court would be generally concerned with the
determination of matters raising questions of law, the resolution of
which require the interpretation, protection or enforcement of the
Constitution.
The
Constitutional Court has no competence to hear and determine issues
that do not involve the interpretation or enforcement of the
Constitution or are not connected with a decision on issues involving
the interpretation, protection or enforcement of the Constitution.”
After
perusal of the papers filed in the High Court, it is apparent that
the relief that was sought in the High Court did not involve the
interpretation, protection or enforcement of the Constitution. Thus,
no
constitutional matter was raised or determined. What the applicant
simply sought was a declaration protecting its commercial interests
in respect of a portion of Bulfield Farm.
That
there was no constitutional matter before the High Court is even
further apparent from the ratio
decidendi
of the court in dismissing the application. It reasoned that the
applicant had failed to establish, on the papers filed of record,
that the farm was subsequently delisted and should be deemed not to
have been compulsorily acquired and that the applicant did not
withdraw its formal admission that the farm had been acquired by the
State. The issue of the acquisition and subsequent delisting of
Bulfield Farm was a factual one and not a question of law. It did not
involve the interpretation, protection or enforcement of the
Constitution.
What
the applicant had pleaded before the court was that the farm had been
compulsorily acquired and was subsequently delisted by a Government
Notice after it had objected to the acquisition. It then had to
produce proof of the delisting but failed to do so. The basic
principle at law is that he who alleges must prove. The applicant
made an affirmative assertion of a fact which was not self-evident
and thus had an obligation to prove the same. See Liberal
Democrats & Ors
v President
of the Republic of Zimbabwe E.D. Mnangagwa N.O. & Ors
CCZ 7/18. It failed to prove the facts it alleged. The result was
that the High Court held that the acquisition of Bulfield Farm meant
the alienation of all the applicant's rights and title, which now
vested in the State. As such, it was found that the applicant had no
locus
standi
to seek the declaratory order that it sought.
As
already found above, there was no constitutional issue raised before
the High Court. Neither
did
the court deal with one. The constitutionality of the acquisition of
the farm itself was never questioned, even through the intended
ground of appeal that the applicant sought to argue in the court a
quo.
The sole ground of appeal read as follows:
“The
court a
quo
erred and misdirected itself at law in finding that the appellant did
not have locus
standi in judicio to
institute action seeking the relief it sought against the first
respondent arising out of a purported compulsory acquisition of a
portion of Bulfield Farm by the second respondent, which portion of
Bulfield Farm was the subject of a Notarial Deed of Servitude
registered in favour of the first respondent on 11 July 1995.”
That
ground of appeal did not raise any constitutional issue before the
court a
quo.
In
response
to the applicant's argument that it intended to challenge the
constitutionality of the acquisition of the farm by the State as the
land was not agricultural land, the court a
quo
dismissed
the application before it. It held at p4 of the cyclostyled judgment
in Bonnyview
Estates (Pvt) Ltd
v Zimbabwe
Platinum Mines (Pvt) Ltd
SC 58/18 as follows:
“It
cannot be disputed that acquisition of the land by the State
necessarily meant the extinction of rights in the land held by the
applicant as owner and the consequent loss of locus
standi
on its part to bring any action based on the extinguished rights,
which was the ratio
decidendi
of the court a
quo's
decision.
The correctness of this finding is beyond reproach. To its credit,
the applicant does not seek to challenge it on appeal. Instead, and
incorrectly so, the applicant seeks to challenge the correctness or
otherwise of the acquisition of the land itself by the second
respondent on behalf of the State. It argued that it intends on
appeal to raise the constitutionality or otherwise of the acquisition
of its land by the State as the land in dispute is not agricultural.
With
respect, this issue was not before the court a
quo
and therefore cannot be an issue on appeal. It is clearly an
incompetent ground of appeal in the matter.
An incompetent ground of appeal cannot be raised or sustained on
appeal and it therefore does not and cannot enjoy any prospects of
success on appeal. A ground of appeal that enjoys prospects of
success on appeal is one that if successfully argued on appeal will
result in the setting aside of the decision appealed against. An
improperly raised ground of appeal cannot be argued on appeal and
will thus have no effect on the judgment appealed against.”
Simply
put, the ratio
decidendi
applied by the court a
quo
in dismissing the application for condonation and extension of time
within which to note an appeal was that the application
had
no prospects of success on appeal. This was because the ground of
appeal was incompetent and it raised a point that did not arise from
the pleadings that were before the High Court.
It
is settled law that a point of law can be raised for the first time
on appeal if it involves no unfairness or prejudice to the party
against whom it is raised. See Kufa
v The
President of the Republic of Zimbabwe & Ors
CCZ 22/17. However, in this case, the position that the applicant
sought to take in the court a
quo
would
lead to manifest prejudice to the respondents, in that it sought to
raise a fresh ground for the first time on appeal as the sole ground
of appeal. Clearly this was not acceptable.
In
argument before the Court, Mr
Matinenga,
for the applicant, said that the High Court erred, in that it did not
direct itself to the central issue of whether or not the portion of
Bulfield Farm had been acquired in terms of the law. It was argued
that the portion of Bulfield Farm, measuring 788 hectares in extent,
which was subject to the Notarial Deed of Servitude, was not
compulsorily acquired by the State as it was the subject of mining
rights. It was alleged that the High Court fell into error in failing
to find that the portion of the farm was unlawfully acquired. Thus,
the applicant had the necessary
locus
standi
to challenge the acquisition before the High Court.
In
the Court's view, this argument would hold water had the applicant
been in possession of separate title deeds, evincing its ownership of
that specific part of the farm that was subject to the servitude.
However, it is common cause that Bulfield Farm was held under one
title deed and was compulsorily acquired as a whole by the State.
This renders baseless the applicant's argument that the High Court
ought to have considered the constitutionality of the acquisition of
part of the farm when the farm was acquired as a whole.
The
application also fails to satisfy the requirements of Rule 32(3)(c)
of the Rules, which are
to
the effect that an application for leave to appeal should contain 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”. (emphasis
added)
The
rationale behind this requirement is that the court seized with the
matter must be made conscious of the constitutional question that it
ought to determine. The constitutional issue that is to be decided by
the court a
quo
ought to be raised by the party that seeks to benefit from its
determination. The raising of a constitutional issue in a clear and
concise manner allows the court to direct its mind to that issue.
Thus,
it
is crucial that the court ought to have exercised its mind on the
issue that was before it and made a determination. It is imperative
that the constitutional question be properly raised and not be left
hidden in the pleadings before the court.
In
Canada, the Supreme Court is the highest court in the land. The
Supreme
Court Act (R.S.C., 1985, c. S-26) gives birth to the Rules of the
Supreme Court of Canada (SOR 2002/1556). Part 5 of these Rules
governs applications for leave to appeal and Rule 25(1)(c)(ii) is of
importance. It provides as follows:
“Application
for Leave to Appeal
25
(1)
An application for leave to appeal shall be bound and consist of the
following, in the following order:
(a)
a notice of application for leave to appeal in Form 25, citing the
legislative provision that authorises the application for leave to
appeal;
(b)
beginning with the court of first instance or the administrative
tribunal, as the case may be, and ending with the court appealed
from,
(i)
copies of the reasons, if any, for the respective judgments of the
lower courts, as issued by the lower courts,
(ii)
copies of all formal judgments or orders, as signed and entered; and
(iii)
copies
of all draft orders, the final versions of which shall be filed
separately immediately after they are signed and entered;
(c)
a memorandum of argument divided as follows:
(i)
Part I, a concise overview of the party's position with respect to
issues of public importance that are raised in the application for
leave to appeal and a concise statement of facts,
(ii)
Part II, a
concise statement of the questions in issue and, if the proposed
appeal raises an issue in respect of the constitutional validity or
applicability of a statute, regulation or common law rule or the
inoperability of a statute or regulation, a concise statement of the
issue.”
(the emphasis is mine
In
Crowell
v Randell
35 U.S. 368 the United States Supreme Court, in interpreting similar
provisions, as encapsulated in the Judiciary Act of 1789, said:
“In
the interpretation of this section of the Act of 1789, it has been
uniformly held, that to give this court appellate jurisdiction two
things should have occurred and be apparent in the record: first,
that some one of the questions stated in the section did arise in the
court below; and secondly, that a decision was actually made thereon
by the same court, in the manner required by the section. If both of
these do not appear on the record, the appellate jurisdiction fails.
It is not sufficient to show, that such a question might have
occurred, or such a decision might have been made in the court below.
It must be demonstrable, that they did exist, and were made.”
In
Cardinale
v Louisiana
394 U.S. 437 (1969) mr
justice white
also held at p 438:
“Although
certiorari
was granted to consider this question, the fact emerged in oral
argument that the sole federal question argued here had never been
raised, preserved, or passed upon in the State courts below. It was
very early established that the Court will not decide federal
constitutional issues raised here for the first time on review of
State court decisions. In Crowell
v Randell,
10 Pet. 368 (1836), justice
story
reviewed the earlier cases commencing with Owings
v Norwood's
Lessee,
5 Cranch 344 (1809), and came to the conclusion that the Judiciary
Act of 1789, c. 20, § 25, 1 Stat. 85, vested this Court with no
jurisdiction unless a federal question was raised and decided in the
State court below. 'If both of these do not appear on the record,
the appellate jurisdiction fails.'”
In
casu,
that there was no clear and concise statement setting out the
constitutional matter in the two subordinate courts cannot be
meaningfully disputed. This is because there was no constitutional
issue that was determined by the High Court or the court a
quo.
There is, therefore, no constitutional question that can be
characterised as having been properly raised. In
the
absence of such constitutional question, the application fell short
of the requirements of Rule 32(3)(c) of the Rules. The result is that
the applicant cannot allege that the court a
quo
misdirected
itself in respect of a matter that it was never called upon to decide
for the purposes of the resolution of the dispute between the
parties.
This
brings to the fore the issue relating to the hierarchy of courts in
non-constitutional matters. In this regard, section 169(1) of the
Constitution becomes paramount. It provides as follows:
“169
Jurisdiction of Supreme Court
(1)
The Supreme Court is the final court of appeal for Zimbabwe, except
in matters over which the Constitutional Court has jurisdiction.”
In
Rushesha
& Ors v Dera & Ors
CCZ 24/17 gwaunza
jcc
(as she then was), at p 10
of
the cyclostyled
judgment,
interpreted this provision in the following manner:
“The
import of this provision needs no elaboration. Only where the Supreme
Court determines a constitutional issue may one appeal to this Court
for a final determination. Because the Supreme Court in this matter
did not determine any constitutional issue, the decision it rendered
was final and not appealable.”
In
Lytton
Investments (Pvt) Ltd v Standard Chartered Bank Zimbabwe Ltd &
Anor CCZ
11/18, the Court held at p 22 of the cyclostyled
judgment
that the
principles that emerge from section 169(1) of the Constitution, as
read with section 26 of the Act, are clear. The Court then said:
“A
decision of the Supreme Court on any non-constitutional matter in an
appeal is final
and binding on the parties and all courts except the Supreme Court
itself. No court has power to alter the decision of the Supreme Court
on a non-constitutional matter. Only the Supreme Court can depart
from or overrule its previous decision, ruling or opinion on a
non-constitutional matter. The onus
is
on the applicant to allege and prove that the decision in question is
not a decision on the non-constitutional matter.”
Further,
section 26(1) of the Supreme Court Act [Chapter
7:13]
reaffirms the above position. It
states:
“26
Finality of decisions of Supreme Court
(1)
There shall be no appeal from any judgment or order of the Supreme
Court.”
As
is apparent from the above provisions, the Supreme Court is the final
court of appeal except in matters where the Court has jurisdiction.
As already found, there was no constitutional issue raised before and
determined by the High Court. Neither was there a constitutional
issue raised before and determined by the court a
quo.
The
dismissal
of the application by the court a
quo
remains
final. It cannot be appealed against.
The
critical effect is that the first requirement in an application for
leave to appeal to the Court, which is to the effect that a
constitutional matter ought to have been raised in the subordinate
court, has not been satisfied.
The
second requirement in an application of this nature, as set out in
The
Cold
Chain
case
supra,
is that the applicant must demonstrate the prospects of success on
appeal.
In
assessing the prospects of success, it is pertinent to analyse the
draft Notice of Appeal that was attached to this application. The
grounds of appeal are set out as follows:
“1.
The court a
quo
erred in finding that the ground of appeal on which the appellant
relied was not a ground of appeal that could be properly raised.
2.
The court a
quo
erred in finding that the issue of the constitutionality of the
acquisition of the land was not before the High Court.
3.
In any event, the court a
quo
erred in finding in effect that a constitutional point cannot be
raised for the first time on appeal.”
Based
on those grounds, the relief sought is as follows:
“1.
The late filing of the notice of appeal be and is hereby condoned.
2.
The applicant is granted an extension of time within which to note
its appeal.
3.
The notice of appeal shall be deemed to have been filed on the date
of the grant of this order (or on such date as may be fixed by the
judge).
4.
There shall be no order as to costs.”
A
reading of the grounds of appeal and the relief sought shows that the
applicant is aggrieved with the denial of condonation and extension
of time within which to appeal by the court a
quo.
In other words, the applicant queries the correctness of the court a
quo's
judgment. There has been no demonstration of prospects of success by
the applicant. All that the applicant has done is to pray for the
condonation of the late noting of the appeal in the court a
quo.
No constitutional relief is sought. Consequently, there is no
reasonable prospect that the Court would reverse or materially alter
the judgment of the court a
quo
if
permission to bring the appeal is given.
The
refusal by the court a
quo
to
grant condonation did not involve the determination of a
constitutional issue. Neither
did
the dismissal of the application before the High Court. As such, the
Court has no jurisdiction to hear and determine the question of the
wrongness or otherwise of the decision of the court a
quo
on
a non-constitutional issue.
The
remarks by the Court in Chiite
& Ors v The Trustees of the Leonard Cheshire Homes Zimbabwe
Central Trust CCZ
10/17 at pp 5-6 of the cyclostyled judgment are apposite. The Court
held as follows:
“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
hallmarks 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.”
The
applicant is simply disgruntled with the decision of the court a
quo on
a non-constitutional issue.
DISPOSITION
The
application is dismissed with costs.
MAVANGIRA
JCC: I agree
BHUNU
JCC: I agree
Venturas
& Samukange
applicant's legal practitioners
Dube,
Manikai & Hwacha
first respondent's legal practitioners
