GARWE
JA:
[1]
This
is an appeal against the decision of the High Court dismissing with
costs an application
made by the appellants seeking an order declaring the appointment of
certain ministers
of Government to be unconstitutional, and, in the alternative, an
order directing the first
and second respondents to act in accordance with the provisions of
the Constitution.
[2]
The matter was heard by a full bench of the Supreme Court. Upon
hearing argument from counsel, the court reserved judgment on 19 July
2012. For unknown reasons, no judgment was prepared in this matter.
It was only at the end of March 2017 that this matter was referred to
me by the Chief Justice to write the main judgment. The delay in the
preparation of this judgment has clearly been very inordinate. An
apology to the parties for such an unconscionable delay would be in
order.
FACTUAL
BACKGROUND
[3]
On 15 September 2008, an agreement that came to be known as the
Global Political Agreement or simply GPA was signed by, and between,
the principals of the three dominant political parties in Zimbabwe.
By the Constitution of Zimbabwe Amendment (No.19) Act, Act No. II of
2009, Schedule 8 was inserted as part of the transitional amendments
and provisions to the former Constitution. Schedule 8 inter alia
incorporated Article 20 of the Global Political Agreement verbatim
and also specifically provided that, during the subsistence of the
Inter Party Political Agreement, the provisions contained in Article
XX thereof were to prevail notwithstanding anything else to the
contrary in the former Constitution. The former Constitution was
subsequently repealed and substituted by the current Constitution in
May 2013.
[4]
Article 20.1.6 of the aforesaid amendment - dealing with the
composition of the Executive – provided, inter alia, that there:
“shall
be thirty–one (31) ministers, with fifteen (15) nominated by Zanu
PF, thirteen (13) by MDC–T and three (3) by MDC-M.”
[5]
In terms of Article 20.1.3, it was the function of the first
Respondent, as President, to appoint, inter alia, ministers of
Government in accordance with the agreement and, after consultation
with, inter alia, the second Respondent (i.e. the Prime Minister),
allocate ministerial portfolios in accordance with the agreement.
[6]
In February 2009, the first Respondent appointed a total of forty one
Ministers in consultation with the second Respondent. Of the forty
one ministers, 21 were from Zanu PF, 16 from MDC–T and 4 from
MDC–M. The ministers took their verbal oaths of office and loyalty
as a group after which they individually subscribed to their oaths of
office and loyalty before the first Respondent in turn.
[7]
It is not in dispute that a total of ten ministers subscribed to the
oath of office and loyalty after the quota provided for in Article
20.1.6 had been reached. Of these ten ministers, two have not been
cited in these proceedings, one having subsequently been elevated to
the position of Vice-President and the other having failed to secure
a parliamentary seat within three months of the appointment. This
matter therefore relates to the remaining eight ministers.
[8]
It should be highlighted at this stage that the tenure of office of
the eight ministers whose appointment forms the basis of the present
proceedings came to an end “on the effective date” when the
President, elected in terms of the new Constitution, assumed office
in terms of that Constitution. To a large extent therefore, this
judgment has been overtaken by events and may now largely be
academic.
PROCEEDINGS
A QUO
[9]
The appellants, as applicants, made it clear that they were bringing
the application in terms of section 18 (9) of the former
Constitution. The first applicant stated that, as a taxpayer, he is
prejudiced by such unlawful appointments and, as a citizen of
Zimbabwe, he is entitled to demand that the Constitution be respected
and that the rule of law be upheld. The second applicant, on the
other hand, indicated that it is a Trust established by notarial deed
whose objective is to promote democracy, transparency and
accountability to ensure that institutional structures and processes
uphold the rights of citizens.
Both
submitted that the first Respondent acted unconstitutionally by
appointing the ministers in question and that the second Respondent
also acted unlawfully by consenting to such appointments. Accordingly
they sought an order declaring the appointments to be null and void,
alternatively, an order that the first and second Respondents be
directed to comply with the Constitution and prevent more than thirty
one ministers
from being appointed and thereafter to publish in the gazette a list
of the ministers which complies with the Constitution.
[10]
The first and second Respondents opposed the order sought. They
raised a number of objections in limine.
10.1
First, that the application is predicated on the right to the
protection of the law which the appellants say are enshrined in
section 18(9) of the former Constitution. Section 18(9) conferred the
right to be afforded a hearing within a reasonable time by an
independent and impartial court established by law. Accordingly the
appellants had not established the basis of the right with which they
claimed to be possessed.
10.2
That the appointment of ministers of Government is an executive act
that is not justiciable in terms of section 31K(1) and (2) of the
former Constitution.
10.3
That the first appellant is a taxpayer by operation of the law. The
fact that he is a taxpayer does not clothe him with the locus standi
to bring this application. His remedy lies through Parliament which
is the arm of the State which approves Government expenditure.
10.4
That the second appellant is a Trust. It does not have corporate
personality although its trustees have the power to sue or be sued.
The second appellant therefore lacks locus standi to bring this
application.
[11]
On the merits, the Respondents submitted that the 8th
Schedule to the Constitution is a political statement which is a part
of a political agreement between the parties to it. The agreement has
its own dispute resolution mechanisms and, that being the position,
the courts should be wary of prescribing remedies for what is a
purely political matter. Further, they argued that the correct
interpretation of the article in question is that the first
respondent shall appoint at least the number of ministers mentioned
in Article 20.1.6. They therefore sought the dismissal of the
application with costs.
[12]
In their answering affidavit, the appellants submitted that there was
no evidence whether, and to what extent, the first and second
Respondents associated themselves with the subjective views of the
deponent of the opposing affidavit, who, at the time, was the
Attorney General of Zimbabwe. They further submitted that they were
entitled to approach this court in terms of section 18(9) so that
this court determines the existence and extent of their civil rights
and obligations. They also submitted that the Rules of the High
Court, and, in particular, Rule 8 permit the bringing of proceedings
by trustees in the name of the Trust.
[13]
In their heads of argument filed a quo, the Respondents abandoned the
issue of the locus standi of the appellants as well as the issue of
the mode of citation of the second appellant and conceded that Rule 8
of the High Court Rules does allow the second appellant to be cited
in the way it was.
[14]
In its judgment, the court a quo came to the conclusion that the
provision in question, stipulating the number of ministers to be
appointed by the first respondent, was merely directory and not
peremptory. Further the court found that if the relief sought were
granted, it would destabilise the Government of national unity,
“cause unnecessary confusion in the body politic and prejudice the
public interest at large”. The court further found that the stated
intention of the legislature was to create a Government of National
Unity in which the three major political parties would be represented
proportionately and that in any event the figures stipulated under
Article 20.1.6(5) had not been outrageously exceeded. Accordingly the
court dismissed
the application with no order as to costs.
It
is against that order that the present appeal is directed.
PROCEEDINGS
BEFORE THIS COURT
[15]
In their heads of argument, the appellants have submitted that, on a
correct interpretation of the language used in the provision in
question, the mode of its enactment and the use of different language
by the Legislature, the conclusion is irrestible that the intention
was to spell out the lawful ministerial complement of Government and
that the provision is therefore peremptory, the result being that a
failure to comply with it nullifies any appointment made contrary to
it.
[16]
The respondents, on the other hand, whilst abiding by the submissions
filed in the court a quo, made the following further submissions.
16.1
First, that our law does not recognise the actio popularis. In other
words there is no right to vindicate a public interest unless there
is harm to be visited on an applicant. Since the appellants had not
alleged harm to themselves, they therefore had no locus standi to
pray for the relief sought; and
16.2
Second, that the appellants were in fact seeking a mandamus. They
have not alleged that section 31D of the former Constitution as read
with the 8th
Schedule of that Constitution confers a right on them.
16.3
Third, that the second appellant, being a Trust, has no
constitutional right which has been breached. In any event the
individual trustees have not alleged a breach of their rights under
the Constitution. Therefore the appellants have no direct personal
interest in the administrative act complained of.
[17]
During oral submissions before this court, Mr Ochieng, for the
appellants submitted that it was not permissible, on the part of the
respondents, to raise the issue of locus standi, having abandoned the
same before the court a quo. Asked by the court to state precisely in
terms of what provision of the Constitution the appellants had
approached the court, he told the court that they had done so
pursuant to the provisions of section 18(1)(a) of the Constitution
and that this section, to some extent, restores the actio popularis.
Mr
Uriri, on the other hand, submitted that the concession made by the
Attorney–General in the court a quo was not binding as it was on a
question of law and not fact. He argued that, where a party concedes
a point of law, that concession can be withdrawn if, in fact, it is
not properly made. The issue of locus standi, being one of law, can
be revisited notwithstanding its abandonment a quo by the Attorney
General.
ISSUES
FOR DETERMINATION
[18]
A number of issues arise for determination in this application. In
the order in which they fall to be determined, the issues may
conveniently be said to be the following.
(a)
First, whether a point of law that is conceded or abandoned in a
lower court can be reinstated and revisited
on appeal.
(b)
Second, whether the application was properly brought in terms of
section 18(9) of the former Constitution.
(c)
Third, whether both appellants had locus standi to launch the
application and seek the relief they did a quo.
(d)
Fourth, the correct interpretation to be given to the provision that
“the Interparty Political Agreement shall, “during the
subsistence of the … agreement prevail notwithstanding anything to
the contrary in the Constitution”; and
(e)
lastly, whether the appellants were entitled to the relief prayed for
in their draft order a quo.
I
relate to each of these in turn.
A
POINT OF LAW – WHETHER CAN BE RE-INVOKED ON APPEAL ONCE ABANDONED
OR CONCEDED A QUO
[19]
The law is clear that once a fact is conceded, no evidence needs to
be called to prove such fact. The law is also settled that once a
concession on an issue of fact is made, such concession cannot be
withdrawn, except on application and good cause shown. This position
is so well established in our law that no authority need be cited in
its support.
[20]
A concession on an issue of law is however different. It is not
binding if it is not properly or correctly made.
The
rationale for this position is obvious. A court cannot be bound by a
concession on the law if such concession is not correct in terms of
the law. This principle is based on public policy. Public policy
demands that a court must be enabled to make a correct determination
of the issues before it based on the correct law applicable and not
on some incorrect concession made by one of the parties. It is for
this reason that a question of law may be advanced even for the first
time on appeal if its consideration involves no unfairness to the
party against whom it is raised. Where it is not clear that the point
has been fully investigated, the court will not, as a general rule,
allow a new point of law to be taken for the first time on appeal.
The court will however allow such a point where the point is
canvassed in the pleadings, there is no unfairness to the other
party, the facts are common cause and there is no basis for
considering that other or further evidence would have been produced
that could have had an effect on the point in question.
[21]
In De Beers Holding v Commissioner for Inland Revenue 1986 (1) S.A.
8,33 CORBETT JA considered the effect of a concession on a question
of law not supported by the undisputed facts and which was wrongly
made. The learned judge concluded at page 33 F– G:
“Mr.
Welsh, although contending that the concession was rightly made, did
not suggest that it stemmed from anything other than an erroneous
appreciation of the legal position. He therefore could not suggest
that this court was precluded from dealing with the matter on the
basis of the undisputed facts. Accordingly there is no reason why
this court should not give what it considers to be the right decision
on the facts… .”
[22]
In Paddock Motors (Pty) Ltd v Igesund 1976 (3) S.A 16 (AD), three
questions of law based on agreed facts had been stated for
determination by the court a quo. The first question of law was
abandoned by the plaintiff at the commencement of the hearing. The
question of law abandoned was basic to the determination of the other
two questions of law. On appeal, the plaintiff was permitted to
revive the first question of law. At page 23 G-H, JANSEN JA remarked:
“Were
the raising now of the contention that the “condition precedent”
had been fulfilled, on the facts set out in the special case, to be
treated merely as the raising of a new point on appeal, there can be
little doubt that this court would have been bound to consider it and
adjudicate accordingly. However, the appellant, through its counsel,
expressly abandoned the contention in the court a quo and the
question arises whether this alters the situation. It is difficult to
see how it can. The facts are agreed and beyond dispute. Is this
Court then to be bound by an order given by the court a quo - even if
wrong on those facts – as a result of an abandonment of a legal
contention flowing from a mistaken view of the law? I think not. If
it were so, the intolerable situation envisaged in Van Rensburg v Van
Rensburg, supra, would be created and this Court prevented from
performing its “duty to ascertain whether the court below came to a
correct conclusion on the case submitted to it.”
[23]
At page 24 B-G, the learned judge continued:-
“If
e.g. the parties were to overlook a question of law arising from the
facts agreed upon, a question fundamental to the issues they have
discerned and stated, the court could hardly be bound to ignore the
fundamental problem and only decide the secondary and dependent
issues actually mentioned in the special case. This would be a
fruitless exercise, divorced from reality, and may lead to a wrong
decision. It follows that the court cannot be confined in all
circumstances to the issues of law explicitly raised in the special
case. This does not mean that the court will always be free to
enlarge the issues, whether mero motu or at the request of a party.
The question of prejudice may arise, e.g., where a party would not
have agreed on material facts, or on only those stated in the special
case, had he realised that other legal issues, not stated in the
special case, were involved. In the present instance such
considerations do not arise as the question the appellant now seeks
to raise was actually part of the special case when the facts were
agreed upon…. Moreover, the contention as to the fulfilment of the
“condition precedent” turns on the proper construction of the
contract, which is also basic to the adjudication upon the other two
points of law. It may again be mentioned that the Court a quo did not
merely decide the question of the exceptio doli, but proceeded to
give judgment against the appellant on the claim (judgment a quo at
p. 299H). If the contention the appellant now seeks to revive is
good, and the other two bad, it means that this court, by refusing to
investigate it, would be upholding a wrong order. In all
circumstances it seems necessary for a proper adjudication to allow
the appellant to revive its contention as based on the first question
of law stated in the special case. The effect on costs if the
appellant were now to succeed by virtue of this contention, need not
be considered at this stage.”
[24]
In B.S.N.L. and Others v M/S Subash Chandra Karchan and Another 2006
(8) SCC 279, a decision of the Supreme Court of India dated 13
September 2006, the Court remarked:
“A
concession made by such an advocate is binding on the party whom he
represents. If it is binding on the parties, again subject to just
exceptions, they cannot at a later stage resile therefrom. The matter
may, however, be different if a concession is made on a question of
law. A wrong concession on legal question may not be binding upon his
client.” (sic)
[25]
In (1) Minister of Local Government, Rural and Urban Development N.O.
(2) Chairperson of the Disciplinary Committee, City of Harare,
Munamato Mutevedzi N.O. v Silas Machetu (2) Maxwell Katsande (3) Paul
Gorekore (4) Johnson Zaranyika SC34/12, this Court made much the same
remark. It stated at page 24 of the cyclostyled judgment:
“…The
court erred in interpreting the evidence before the second appellant
…. It also erred in relying on a concession which was improperly
made by counsel for the appellants….”
[26]
The position must therefore be accepted as settled in this
jurisdiction that a wrong concession on a point of law is neither
binding on the party that made it nor on the court hearing the
matter.
THE
OBJECTION IN LIMINE A QUO
[27]
In his objection in limine, the Attorney General, inter alia, drew
attention to the allegation by the appellants, as applicants, that
the right they were relying on was the protection of the law
guarantee enshrined in section 18(9) of the Constitution. It was the
Attorney General's contention that section 18(9) does not itself
confer the kind of right the appellants maintained they were
possessed of in the application. He further submitted that section
18(9) merely conferred the right on a party to be afforded a fair
hearing within a reasonable time by an independent and impartial
court established by the law in the determination of the existence or
extent of his civil rights or obligations. Therefore, so he argued,
the right under section 18(9), not requiring adjudication, the
applicants could not be possessed of a right protected in terms of
section 18(9) of the former Constitution and therefore had no locus
standi.
As
already noted this preliminary point, together with others, were
abandoned in heads of argument filed before the hearing of the
matter.
ISSUES
THAT ARISE FROM THE PRELIMINARY POINTS TAKEN BOTH A QUO AND IN THIS
COURT
[28]
It is clear that the basis upon which the appellants approached the
court a quo remained a live issue. Firstly, they unequivocally
stated, under oath, that they were approaching the court in terms of
section 18(9) of the Constitution. Secondly, the question remained
whether or not they had locus standi to seek the relief prayed for,
particularly in the case of the second appellant.
Although
the Attorney General abandoned the preliminary points, the issues
nevertheless remained live and, in my view, should nevertheless have
been dealt with by the court a quo. The court should have asked
itself how it was possible, considering the relief the appellants
were seeking, for the appellants to approach the court in terms of
section 18(9) of the former Constitution. Further, the court should
have asked itself whether it was sufficient for the first appellant
to approach the court on the basis merely that he was a citizen of
Zimbabwe and a taxpayer. The court should have gone further to
determine whether a Trust, such as the second appellant, could
properly launch an application for relief under section 18(9) of the
former Constitution. It is clear that the court a quo failed to deal
with these vital issues.
[29]
In general, where a lower court fails to determine issues placed
before it, the approach of an Appellate Court is to remit the matter
so that these issues can be properly determined.
On
the facts of this case it would serve no real purpose to remit the
matter for these matters to be adjudicated upon by the court a quo.
The issues are of law and this court can allow the raising of such
issues for the first time on appeal. In this case the issues were
raised a quo but abandoned and then raised again before this court. I
see no prejudice or impropriety in this regard. In the Paddock Motors
case (supra) the South African Appellate Division allowed the raising
of issues previously abandoned in the court a quo.
THE
APPLICATION WAS PREDICATED ON SECTION 18(9) OF THE FORMER
CONSTITUTION
[30]
In their founding papers, the appellants made it clear in the court a
quo that they were bringing the application in terms of section 18(9)
of the former Constitution of Zimbabwe. That section provided:-
“Subject
to the provisions of this Constitution, every person is entitled to
be afforded a fair hearing within a reasonable time by an independent
and impartial court or other adjudicating authority established by
law in the determination of the existence or extent of his civil
rights or obligations.”
[31]
As already noted, the Attorney General, acting for the first and
second respondents, raised certain objections in limine in the
opposing affidavit on the applicants' cause of action. He stated in
para 5 of the affidavit: -
“5
1st
applicant alleges in paragraph 1 of his founding affidavit that the
right he possesses is his right to protection of the law as enshrined
in section 18(9) of the Constitution. In my respectful view that
particular provision does not in itself confer the kind of right 1st
applicant maintains he is possessed of in this application. That
provision merely confers the right to be afforded a fair hearing
within a reasonable time by an independent and impartial court
established by law in the determination of this existence or extent
of his civil rights or obligations. As 1st
applicant's application is predicated on the existence of a right
the determination and extent of which are not required to be
adjudicated upon, he cannot be possessed of a right protected in
terms of section 18(9) of the Constitution. As such, the 1st
applicant has not established the basis of the right he claims to be
possessed of, and as such he has no locus standi to bring this
application.”
[32]
In his answering affidavit the first appellant remarked:
“Section
18(9) of the Constitution allows me to be heard by an independent and
competent court, such as this Honourable Court, to determine the
existence and extent of any civil rights and obligations. I assert
the existence of a right to a lawfully constituted Government, and
that I am entitled to be heard by this Honourable Court, which must
determine whether such a right exists, and if so, the extent of that
right. The right that I claim arises out of the fact that the
Constitution is the Supreme law of the land, and, its infringement
gives the right to any citizen affected by such infringement to seek
redress… .”
[33]
In oral submissions before this court, counsel for the respondents
argued that both appellants had not alleged a right in respect of
them which had been violated and that section 18(9) of the
Constitution was merely an enactment of a bundle of procedural rights
which relate to the private individual to whom the Administrative
Justice Act applies.
In
response counsel for appellants stated, for the first time, that the
appellants had approached the court, not on behalf of others, but on
their own behalf, in terms of section 18(1)(a) of the Constitution,
which provides that every public officer has a duty towards every
person in Zimbabwe to exercise his or her functions
as a public officer in accordance with the law.
AN
APPLICANT STANDS OR FALLS BY HIS FOUNDING AFFIDAVIT
[34]
The position is now settled that an applicant stands or falls by his
founding affidavit and the facts alleged in it. Although it is
sometimes permissible to supplement the allegations contained in the
founding affidavit, still the main foundation of the application is
the allegation of facts stated therein.
34.1
In Movement for Democratic Change v Minister of Justice, Legal and
Parliamentary Affairs and Others 2007 (2) ZLR 1 51, this court, (per
Chidyausiku CJ) stated:-
“It
is now settled law that in a court application the founding affidavit
in support of the application sets out the applicant's cause of
action. The applicant's case stands on the founding affidavit.
Consequently, it can never be over-emphasised that care must be taken
by legal practitioners representing applicants when drafting the
founding affidavit. The founding affidavit must succinctly set out
the cause of action. The cause of action should be clearly stated so
that the respondent is left in no doubt as to what case he has to
meet and the relief sought. The relief is usually contained in the
draft order which forms part of the application. It is equally
important that the opposing affidavit be sufficiently clear so that
it informs the applicant and the Court of the defence the respondent
is raising.”
34.2
In Austerland Pvt Ltd v Trade and Investment Bank Ltd and Others SC
92/05, this court stated:-
“The
general rule that has been laid down in this regard is that an
application stands or falls on the founding affidavit and the facts
alleged in it. This is how it should be, because the founding
affidavit informs the respondent of the case against the respondent
that the respondent must meet. The founding affidavit sets out the
facts which the respondent is called upon to affirm or deny. See
Pountas' Trustee v Lahamas 1924 WLD 67 at 68.”
34.3
In Hiltunen v Hiltunen 2008 (2) ZLR 296 (H) 301B, Makarau JP (as she
then was) stated:-
“It
is trite that in application proceedings, it is to the founding
affidavit that the court will look to for the cause of action being
alleged by the applicant and the evidence that the applicant has to
sustain such a cause of action. Hence, as has been said in numerous
cases before, an applicant must stand or fall by his founding
affidavit and the facts alleged therein because those are the facts
which the respondent is called upon either to affirm or deny. See
Mangwiza v Ziumbe NO & Another 2000 (2) ZLR 489 (S) at 492 D-F.”
34.4
In Crundall Brothers (Pvt) Ltd v Lazarus NO & Anor 1990 (1) ZLR
290H, 300, Smith J remarked:-
“When
as in this case the proceedings are launched by way of notice of
motion, it is to the founding affidavit that the judge will look to
determine what the complaint is. As was pointed out by Krause J in
Pountas' Trustee v Lahanas 1924 WLD 67 at 68 and has been stated in
many other cases:
'…
an
applicant must stand or fall by his petition and the facts alleged
therein and that, although sometimes it is permissible to supplement
the allegations contained in the petition, still the main foundation
of the application is the allegation of facts stated therein, because
those are the facts which the respondent is called upon either to
affirm or deny.'”
34.5
In Milrite Farming (Pvt) Ltd v Porusingazi & Ors HH 82/10 the
High Court stated:-
“The
basic rule pertaining to application proceedings is that the
applicant's case stands or falls on averments made in the founding
affidavit and not upon subsequent pleadings. The rational for the
rule is quite clear. It is to avoid the undesirable effect of
litigation assuming a snowballing character, with fresh allegations
being made at every turn of pleadings. Thus, the fresh allegation
contained in the answering affidavit must be ignored, leaving the
same cause of action and substantially the same facts in both the
first and second applications.”
APPELLANTS
CAUSE OF ACTION IN FOUNDING PAPERS NOT ESTABLISHED
[35]
The facts of this case show that although the gravamen of the
complaint by appellants was that the respondents had acted
unlawfully, they elected to found their cause of action on section
18(9) of the former Constitution. That section affords every person
the right to be afforded a fair hearing within a reasonable time by
an independent and impartial court or authority. However, there was
no suggestion, nor was it the appellants' case, that they had not
been afforded a fair hearing within a reasonable time by an
independent and impartial court. They did not identify any other
specific rights enshrined in the Constitution that they alleged had
been violated. It is difficult to appreciate how the appellants could
seek constitutional relief without grounding their application on a
particular right they alleged had been violated. Only during oral
submissions before this court did counsel for the appellants suggest
that they were approaching the court pursuant to section 18(1)(a) of
the former Constitution. However it was not indicated how that right,
enshrined in the Constitution, and in respect of which they sought
protection, had been violated.
DISPOSITION
[36]
In the circumstances, I am satisfied that the cause of action as
pleaded was never proved and that the founding papers did, in fact,
contradict the ultimate relief prayed for.
[37]
As stated by MALABA DCJ in Moyo & Others v Zvoma NO & Another
2011 (2) ZLR 345 (S) 369H, the matter:-
“ought
to have been dismissed or granted on the grounds on which the
applicants made it.”
[38]
In the result, the application before the court a quo, having been
fatally defective, the appeal before this court should equally fail.
[39]
In light of the above conclusion, it becomes unnecessary to consider
the issue of locus standi or to interpret Article 20.1.6 of the 8th
Schedule to the former Constitution.
[40]
In the result, the appeal is dismissed with no order as to costs.
CHIDYAUSIKU
CJ: (Deceased)
ZIYAMBI
JA: I agree
GOWORA
JA: I agree
OMERJEE
AJA: (Retired)
Coghlan,
Welsh & Guest, appellant's legal practitioners
Civil
Division, of the Attorney General's Office, 1st and 2nd
respondents' legal practitioners.
