KUDYA
AJA:
This
is an appeal against the whole judgment of the High Court, Harare,
dated 25 July 2019. The court a
quo
dismissed with costs the application for a declaratory order that had
been filed by the appellant.
THE
FACTS
The
appellant is the owner of an immovable property situated in
Mabelreign, Harare. He leased the property to one Crossland
Mupfurutsa between June 2013 and August 2017.
The
tenant concluded an agreement for the supply of electricity with the
Zimbabwe Electricity Transmission and Distribution Company (ZETDC or
the second respondent). The second respondent duly opened an account
for the supply of electricity in the name of the tenant. All the
supply and payment transactions were recorded in this account.
The
tenant abandoned the immovable property in August 2017. He left an
unpaid electricity bill of $4,689.89.
In
September 2018, the second respondent installed a prepaid meter in
the name of the appellant on the property.
Acting
in terms of section 3(1) of The Electricity (Unpaid Bills, Prepayment
Meters and Smart Meters) Regulations, SI 44A of 2013, which was
promulgated in terms of section 65 of the Electricity Act [Chapter
13:19]
(the
enabling Act),
the
second respondent unilaterally transferred the debt incurred by the
tenant to the appellant.
The
debt was to be liquidated by the unilateral debit of at least 50% of
the prepaid electricity purchases made by the appellant.
On
1 June 2019, SI44A of 2013 was repealed by section 12 of SI 85/2018.
Subsequent
to the repeal, the appellant approached the High Court on 3 September
2019, seeking two declaratory orders:
(i)
The first was that section 3 of the repealed enactment be declared
ultra
vires
the enabling Act and therefore a nullity.
(ii)
The second declaratory order was predicated on the first. The
appellant sought that the transfer of the debt to him be declared
unlawful and that the second respondent be ordered to stop the
ongoing deductions from his periodic prepaid electricity purchases.
The
application was opposed by the second respondent and not by the first
respondent (the Minister).
When
he filed his application, the appellant was not aware that the
enactment he sought to impugn had been repealed.
This
is apparent from the manner in which he asserted his cause of action
in his founding affidavit. The tenor of his averments tended to
suggest that the impugned enactment was still extant.
The
second respondent was equally oblivious to this fact, otherwise it
would have raised it in its opposing affidavit.
That
the enactment had been repealed was only disclosed by the appellant
in his answering affidavit. He, however, with this belated knowledge,
elected to proceed with the application in its original form.
The
first respondent did not file opposing papers or seek an upliftment
of the automatic bar. His legal practitioner appeared in the court a
quo,
where he was, however, granted a watching brief.
It
was common cause that the second respondent continued to make debits
on the appellant's prepaid electricity purchases to defray the
outstanding debt after the impugned enactment had been repealed.
This
is clearly established by annexures C, D and E dated 15 August 2018,
14 September 2018 and 4 October 2018, respectively.
THE
CONTENTIONS A QUO
The
appellant advanced three contentions in the court a
quo:
(i)
The first was that section 3(1) of the repealed subsidiary
legislation was ultra
vires
section 65(2)(h) of the Electricity Act. He argued that it was
incongruous for the subsidiary legislation to cast liability for
outstanding electricity debts on the immovable property when the
principal legislation imposed liability therefor on a licensee or
consumer. These terms were specifically defined in the enabling Act
to mean a person.
(ii)
The second was that the implied transference of the debt from the
consumer to the owner contemplated in section 3(2) of the repealed
enactment violated the established doctrine of privity of contract.
(iii)
Lastly, that the unabated deductions that continued to take place
after the repeal of the enactment were unlawful.
In
his heads of argument, counsel for the second respondent took two
preliminary points against the relief sought by the appellant:
(i)
He argued that it was bad at law for the appellant to seek a
declaration of invalidity against an enactment that had been
repealed.
(ii)
He also argued that it was incompetent for the appellant to predicate
the second declaratory order on a repealed provision of the repealed
enactment.
On
the merits, the second respondent made the following counter
arguments:
That
section 65(1) of the Act, vests the Minister with the untrammelled
power to make any regulations required or permitted by the Act, which
are necessary or convenient for the carrying out or giving effect to
the Act. In promulgating any regulations, the Minister is guided by
the 17 requirements that are listed in section 65(2), amongst which
are paras (h) and (q).
While
para (h) prescribes the promulgation of regulations in respect of
“fees, levies or other charges payable in terms of the Act by
licensees or consumers”, para (q) confers on the Minister the power
to make “such other regulations as may be required.”
The
Minister utilized para (q) to make the impugned enactment that placed
liability for outstanding debts at the time a prepaid meter was
installed on the property rather than on a person. The same
regulations also required the user of the prepaid meter to satisfy
any debt that was incurred at the property before the installation of
the prepaid meter from a portion of the prepaid electricity
purchases.
Regarding,
the deductions post the repeal of the impugned enactment, the second
respondent contended that they were saved by the provisions of
section 17(1)(c) of the Interpretation Act [Chapter
1:01],
which preserved “any right, privilege, obligation or liability
acquired or accrued or incurred under the enactment so repealed.”
Counsel
for the second respondent further argued that the right to debit the
prepaid electricity purchases accrued to the second respondent on the
date the prepaid meter was installed in September 2018. He,
therefore, submitted that the post repeal deductions were lawful.
THE
FINDINGS A
QUO
The
court a
quo
held, correctly that, in terms of section 14 of the High Court Act
[Chapter
7:14],
it
has a discretion to grant a declaratory order.
Regarding
the requirements for such an order, it found the appellant to be an
interested person. This was because the debt that had been incurred
by his tenant was imputed to him. It further held that the impugned
enactment, save for the accrued rights and obligations ceased to be
part of our legislation on the date on which it was repealed on 1
June 2018.
Consequently,
the appellant could not on 3 September 2018, after the repeal of the
impugned enactment, competently found a cause of action on the
non-existent enactment nor, thereafter, seek a declarator against it.
The
learned judge stated, at p 4-5 of his judgment that:
“It
is clear to me that as of 1 June 2018 when SI 44A was repealed, the
section complained of ceased to be of legal validity. Thus as at 3
September 2018 when applicant filed this application he was seeking
to have a nullity (sic) declared ultra
vires
the enabling Act. There was virtually nothing for this court to
declare as ultra
vires
the enabling Act…..In as far as the fulcrum of the applicant's
application was for an order declaring section 3 of SI 44A of 2013
ultra
vires
the Electricity Act and thus null and void I am of the view that such
an application was improper as that SI had already been repealed by
the time applicant filed this application.”
The
court a
quo,
therefore declined to exercise its discretion in respect of the first
declaratory order in favour of the appellant on the basis that the
impugned section ceased to exist on 1 June 2018.
The
court a
quo
also declined to grant the second declaratory order. It found that
the cause of action pleaded in the founding affidavit did not support
such a declaratory order. At p5 of the appealed judgment, the court a
quo
remarked that:
“Whilst
indeed applicant may feel aggrieved by the actions of the second
respondent in making him liable for his tenant's debt, it is my
view that the applicant ought to have decided on a proper cause of
action especially after learning that the SI in question had been
repealed. As it is clause 2 of the prayer in which he seeks to be
declared not indebted to second respondent, is premised on this court
first declaring the section in question as ultra
vires
the enabling Act. It is only after such a declaration that the issue
of his indebtedness or otherwise would arise.
In
as far as an application stands or falls on the founding affidavit,
it follows that the application cannot succeed on the present papers.
Upon
realising that the provision in question had been repealed well
before filing the application, applicant ought to have withdrawn the
application and explored other viable causes of action which
recognised the fact that the provision in question had been repealed
and any relief had to be on other legal grounds.”
The
court a
quo
further held that section 17(1)(c) of the Interpretation Act
preserved the accrued rights and the incurred obligations that
existed at the time of repeal. It, however, dismissed the second
declaratory order sought on the basis that it was consequential to,
and dependent on, the grant of the first declaratory order.
Undaunted
by the dismissal of his application, the appellant appealed to this
court. He raised the following grounds of appeal:
1.
The court a
quo
erred and misdirected itself in law in finding the Statutory
Instrument 44A/2013 could no longer be challenged on the grounds that
same had been repealed in circumstances where the cause of action
arose before the repeal of the Statutory Instrument 44A/2013.
2.
Alternatively; the court a
quo
erred in law in not finding that a repealed statutory instrument can
be declared null and void where, despite its repeal, a litigant is
still adversely affected by what the statutory instrument brought
into being.
3.
The court a
quo
erred and misdirected itself in law by dismissing the challenge to
Statutory Instrument 44A/2013, in the absence of any opposition given
that the second respondent had no locus
standi in judicio
to oppose the challenge.
The
appellant, accordingly, sought the vacation of the whole judgment of
the court a
quo
and its substitution with an order granting the application and a
declaration of invalidity against section 3 of the repealed
enactment.
THE
ISSUE FOR DETERMINATION
Mr
Madhuku,
for the appellant, did not motivate the third ground of appeal. We
regarded it as abandoned.
He
also conceded that the alternative ground meant the same thing as the
first. He therefore conflated it into the main ground.
The
sole issue for determination is whether
or not the court a
quo
erred in finding that the appellant could not seek a declaratory
order in respect of a repealed enactment.
THE
SUBMISSIONS BEFORE US
The
main contention moved by Mr Madhuku
in oral argument is that section 17(1)(a) of the Interpretation Act
preserved the provisions of the repealed enactment where a cause of
action arose from the enactment before it was repealed. He contended
that the preserved provisions remained in existence and were
therefore susceptible to a declaration of invalidity for being ultra
vires
the enabling Act.
In
his written heads, Mr Madhuku,
did not assail the dismissal of the second declaratory order or seek
any relief in respect to it. He was content to attack the adverse
finding made against the appellant a
quo
on the main declaratory order.
It
was perhaps in the realization of this shortcoming that Mr Madhuku
half-heartedly introduced in oral argument the “live effects of the
repealed enactment” discourse into contention.
He
used it to augment his main submission that the repealed provision
and enactment were susceptible to a declaration of invalidity even
though they had been repealed.
He
did not introduce the new argument to support the grant of the second
declaratory order nor did he move us to substitute that order for the
order of dismissal.
Per
contra,
Mr Zvobgo,
for the second respondent, argued against the insertion of the words
“where a cause of action arose before the repeal of” the impugned
enactment, which appears in the first ground of appeal. He contended
that it was improper for the appellant to introduce and raise for the
first time on appeal an issue that had neither been pleaded in the
founding affidavit nor argued in the court a
quo.
He
further contended that the attack on section 3(1) in the founding
affidavit was premised on the misconception that the impugned
enactment was still in existence. It was not based on the period when
the cause of action arose.
He
argued strongly that the repeal of the impugned enactment rendered
the founding affidavit ineffectual. Consequently, the court a
quo
was correct to find the application to declare section 3(1) invalid
to be incompetent.
He
also argued that the introduction of the “live” consequences of
the repealed enactment was a new submission unsupported by the cause
of action pleaded in the founding affidavit and the evidence on
record.
Mr
Shumba,
for the first respondent, appeared before us. Apparently, the first
respondent was served with the notice of set down by the Registrar
and subsequently timeously filed his heads of argument.
We
indulged him.
He
contended that the relief sought by the appellant after the repeal of
the enactment was an academic exercise. That the retrospective
declaration of invalidity of the repealed enactment was moot as the
issue was no longer alive.
It
was his further contention that the appeal constituted a classic
search for a legal opinion on an abstract or academic issue that did
not have any practical relevance to the parties.
THE
LAW
It
has been stated in a number of judgments of this Court that an
application stands or falls on its founding affidavit.
In
Muchini
v Adams & Ors
SC47/13 at p4, ZIYAMBI JA pertinently observed that:
“It
is trite that an application stands or falls on the averments made in
the founding affidavit. See Herbstein
& van Winsen
the Civil Practice of the Superior Courts in South Africa 3rd
ed p80 where the authors state:
“The
general rule, however, which has been laid down repeatedly is that an
applicant must stand or fall by his founding affidavit and the facts
alleged therein, and that although sometimes it is permissible to
supplement the allegations contained in that affidavit, still the
main foundation of the application is the allegation of facts stated
therein, because these are the facts which the respondent is called
upon either to affirm or deny. If the applicant merely sets out a
skeleton case in his supporting affidavits any fortifying paragraphs
in his replying affidavits will be struck out.”
The
reason for the rule is that the founding affidavit constitutes the
foundation of the applicant's case, which the respondent is called
upon to admit or deny. The averments also delineate the parameters
that bind the court in adjudicating the dispute between the parties.
In
our law, a cause of action consists of all the facts upon which the
relief sought is based.
In
Patel
v Controller of Customs and Excise
1982 (2) ZLR (HC) 82 at 86C-E GUBBAY J, as he then was, stated that:
"In
Controller of Customs
v Guiffre
1971 (2) SA 81 (R) at 84A, BECK J, in Abrahamse
& Sons v SA Railways and Harbours
1933 CPD 626 at 637 WATERMEYER J stated:
'The
proper legal meaning of the expression 'cause of action' is the
entire set of facts
which gives rise to an enforceable claim and includes
every act which is material to
be proved to entitle a plaintiff to succeed in his claim. It includes
all that a plaintiff must set out in his declaration in order to
disclose a cause of action. Such cause of action does not 'arise' or
'accrue' until the occurrence of the last of such facts and
consequently the last of such facts is sometimes loosely spoken of as
the cause of action. (See Halsbury, vol 1, sec 3, and the cases there
cited.)'” (My underlining for emphasis).
To
the same effect is Peebles
v Dairiboard (Private) Limited
1999 (1) ZLR 41 (H) at 54E-F, where MALABA J (as he then was) defined
it as follows:
“A
cause of action is defined by Lord Esher in Reed
v Brown
(188) 22 QB 131 as every fact which it would be necessary for the
plaintiff to prove if transversed in order to support his right to
judgment of the court. In the same case, Lord Fry at 132-133 said the
phrase meant everything which if not proved gives the defendant an
immediate right to judgment. In Letang
v Cooper
[1965] 1 QB 232 at 242-3 Diplock LJ (as he then was) said a cause of
action is simply a factual situation the existence of which entitled
one person to obtain from the court a remedy against another person.”
There
is a further principle that is aligned to the abiding nature of a
founding affidavit and cause of action. It is that an Appeal Court
will generally not entertain a new issue that is raised on appeal for
the first time.
This
principle was affirmed by GUVAVA JA in Bakari
v Total Zimbabwe (Pvt) Ltd
SC21/19 at p14-15 in these words:
“In
any event, as evidenced in the judgment of the court a
quo,
the issue of novation did not arise before the court a
quo.
The appellant sought to raise it for the first time on appeal.
In
respect to raising issues for the first time on appeal CHIDYAUSIKU CJ
in Austerlands
(Pvt) Ltd v Trade and Investment Bank Ltd And Ors
SC80/06
stated
as follows:
'The
general rule, as I understand it, is that a question of law maybe
advanced for the first time on appeal if its consideration then
involves no unfairness to the party at whom it is directed. See
Estate
Lala v Mohamed 1994
AD 324.
The
principles applicable to the raising of a point of law for the first
time on appeal were succinctly set out by KRIEGLER in the case of
Donelly
v Barclays National Bank Ltd
1990
(1) SA 375 at 380H-381B, where the learned judge had this to say:
'…..generally
speaking, a Court of Appeal will not entertain a point not raised in
the court below and especially one raised on the pleadings in the
court below. In this regard I need do no more than refer to Herbstein
and Van Winsen, The Civil Practice of the Superior Courts in South
Africa 3ed at 736-737. In principle, a Court of Appeal is disinclined
to allow a point to be raised for the first time before it. Generally
it will decline to do so unless;
1.
the point is covered by the pleadings;
2.
there would be no unfairness on the other party;
3.
the facts are common cause or well-nigh incontrovertible; and
4.
there is no ground for thinking that other or further evidence would
have been produced that could have affected the point.”
The
statutory provisions that are relevant to the determination of this
matter are the impugned provision, section 14 of the High Court Act
and section 17(1) of the Interpretation Act.
Section
3 read:
“(1)
Any electricity charges outstanding on the date on which a prepaid
meter is installed shall be debts of the property in which that
prepaid meter was installed and shall be reflected as a debit in the
installed prepaid meter.
(2)
Any person who owns the property upon which the prepaid meter has
been installed has the right to recover the debts of the property
from any person who is responsible for incurring the debts.
(3)
An owner of a property may enter into an agreement with any person
who intends to occupy the property regarding the manner in which they
will make payments towards the unpaid bill in the prepaid meter.”
Section
14 of the High Court Act provides as follows:
“The
High Court may, in its discretion, at the instance of any interested
person, inquire into and determine any existing, future or contingent
right or obligation, notwithstanding that such person cannot claim
any relief consequential upon such determination.”
The
meaning of this section was authoritatively determined in Johnsen
v Agricultural Finance Corporation
1995
(1) ZLR 65 (S) at 72E-F where GUBBAY CJ said that:
“The
condition precedent to the grant of a declaratory order under section
14 of the High Court of Zimbabwe Act 1981 is that the applicant must
be an 'interested person' in the sense of having a direct and
substantial interest in the subject matter of the suit which could be
prejudicially affected by the judgment of the court. The interest
must concern an existing, future or contingent right. The court will
not decide abstract, academic or hypothetical questions unrelated
thereto. But the presence of an actual dispute or controversy between
the parties interested is not a prerequisite to the exercise of
jurisdiction.”
Lastly,
section 17 of the Interpretation Act states that:
“17
Effect of repeal of enactment
(1)
Where an enactment repeals another enactment, the repeal shall not —
(a)
revive anything not in force or existing at the time at which the
repeal takes effect; or
(b)
affect the previous operation of any enactment repealed or anything
duly done or suffered under the enactment so repealed; or
(c)
affect any right, privilege, obligation or liability acquired,
accrued or incurred under the enactment so repealed; or
(d)…….
(e)
affect any…..legal proceeding or remedy in respect of any such
right, privilege, obligation……and any such…. legal proceeding
or remedy shall be exercisable, continued or enforced……..as if
the enactment had not been so repealed.”
This
section preserves the effects of a repealed enactment.
These
include any accrued rights and privileges and any incurred
obligations and liabilities and any pending legal proceedings and
consequential remedies.
The
above section first appeared in our statute book as section 12 of the
Interpretation Act, 1954. It was re-enacted as section 15 of the
Interpretation Act
[Chapter
1]
before its transmutation in the Revised Ed of 1996 to the
Interpretation Act [Chapter
1:01].
The
meaning, purpose and application of this provision in this
jurisdiction was enunciated by the majority decision of the Federal
Supreme Court of Rhodesia and Nyasaland in Ranger
v Greenfield NO & Anor
1963 (2) SA 207 (FC); Zimbabwe
Township Developers (Pvt) Ltd v Lou's Shoes (Pvt) Ltd
1983 (2) ZLR 376 (S) at 380A-C.
In
the Lou's
Shoes
case,
at
380A-C GEORGES CJ outlined the history and pronounced the purpose of
the provision. He said:
“An
examination of the history of section 11 of the English
Interpretation Act which is in language very similar to our section
15 confirms this.
Prior
to that enactment the common law was that if an Act of Parliament
which repealed former statutes was itself repealed by an Act which
contained nothing indicating that the former laws should continue
repealed, the former laws would by implication be revived by the
repeal of the repealing statute - Tattle
v Grimwood
(1826) 3 Bing 493 at 496. Further in In
Re Mexican and South B American Co
(1859) 4 De G J 544 at 557 it was stated to be clear that where an
Act of Parliament was repealed it had to be considered, except as
regards transactions past and closed, as if it had never existed.
The
English Interpretation Act changed that inconvenient situation.”
It
is plain from the above quotation that the purpose behind the
promulgation of section 17(1)(a) of the Interpretation Act was to
prevent the revival of the legal position that existed before the
promulgation of the repealed enactment. In other words, the repeal of
the substituting enactment could not result in the retrospective
revival of the legal position that preceded it. Such a repeal could
only have prospective application. That is what the words “revive
anything not in force or existing at the time at which the repeal
takes effect” have been construed to mean.
Para
(b) of section 17(1) means that the repeal of an enactment does not
affect the validity of the actions taken and obligations suffered
during the time the enactment was in force. The import of both paras
(a) and (b) of section 17(1) is, therefore, that the repeal does not
revive a right that has been extinguished nor extinguish the validity
of the past rights and obligations that were exercised during the
time the enactment was in force. See Lou's
Shoes, supra,
at
p 379A-D.
In
my view, while para (c) has been the hot subject of construction in
past court decisions in this and other jurisdictions, I venture to
add that the same meaning applies to para (e) of section 17(1) of the
Interpretation Act. This is because the two paras, although they
apply to different circumstances, serve the same purpose.
The
first warning shot, on the meaning of the English equivalent of this
para was fired by Lord HERSCHELL in Abbott
v Minister of Lands,
(1895) A.C. 425 at 431. He said:
“It
has been very common in the case of repealing statutes to save all
rights accrued. If it were held that the effect of this was to leave
open to anyone who could have taken advantage of any of the repealed
enactments still to take advantage of them, the result would be very
far-reaching.
It
may be, as WINDEYER J observes, that the power to take advantage of
an enactment may without impropriety be termed a 'right'. But the
question is whether it is a 'right accrued' within the meaning of the
enactment which has to be construed.
Their
Lordships think not, and they are confirmed in this opinion by the
fact that the words relied on are found in conjunction with the words
'obligations incurred or imposed'. They think that the mere right
(assuming it to be properly so called) existing in the members of the
community or any class of them
to take advantage of an enactment, without any act done by an
individual towards availing himself of that right, cannot properly be
deemed a 'right accrued' within the meaning of the enactment.”
(My underlining for emphasis).
Lord
HERSCHELL, therefore, held that a right could only accrue to a
beneficiary who would have asserted that right before the repeal of
the enactment that embodied such a right.
The
claimant was required to establish some positive individual effort or
action towards invoking the latent right before it could be found to
have been acquired or accrued. This is because all the words
accompanying “accrued” in the paragraph connote positive action
and not passive absorption.
The
above cited passage was cited with approval by the Privy Council in
Director
of Public Works v Ho Po Sang,
1961 (2) A.E.R. 721 at p.732.
The
Lord HERSCHELL formulation was adopted lock, stock and barrel by the
South African Courts in construing the analogous section 1 of their
Interpretation Act (Act 30 of 1906), and its subsequent promulgations
in Mahomed
v Union Government, (Minister of the Interior)
1911 AD 1 at p.8 and Rustenburg
Platinum Mines Ltd v Motletlegi,
1954 (2) SA 597 (T) at 603.
In
the Mohamed
case, supra,
INNES
JA pertinently remarked that:
“Turning
now to the section, it is clear that the rights and privileges
intended to be kept alive were rights and privileges acquired under
the repealed Act; because it was only with the effect of the second
Act upon the first that the section was concerned. Now, a right or
privilege could only be acquired under the Act of 1902 if it was
given by the Act, and if the
beneficiary had duly availed himself of the statutory provisions.
A thing acquired under an Act must necessarily be conferred by the
Act; it must be something which, but for the passing of the measure,
the beneficiary would not have been entitled to.” (My underlining
for emphasis).
In
Zimbabwe, CONROY CJ (NR) with whom FORBES FJ concurred in the Ranger
case, supra
at
219H adopted wholesale the meaning of section 12(1)(c) (the precursor
to our section 17(1)(c)) given by Lord HERSCHELL.
In
so doing, they were following upon the footsteps of CLAYDEN J, in
Midgley
v Gelman,
1956 R. & N. 684 at p.690.
The
learned CHIEF JUSTICE stated at 219H that:
“In
Moakes
v Blackwell Colliery Co. Ltd,
H 1925 (2) K.B. 64 at p.70, SCRUTTON, L.J, points out that when an
Act contains a provision which alters the provision of a previous
Act, it repeals that provision. This case would therefore appear to
be authority for the proposition that section 12(1)(c) applies not
only to a repealing Act, but also to a repealing and replacing Act.……
The provisions of section 12 are similar to those of section 38 of
the Interpretation Act, 1889, of the Imperial Parliament.”
And
concluded at 221D that:
“I
come, therefore, to the conclusion that the applicant did acquire a
right, or that a right had accrued to the applicant, not to be deemed
a prohibited immigrant, by virtue of the provisions of section 12 of
the Interpretation Act, 1954.”
On
the facts of that case and in consideration of the repealed and
repealing enactments he held at 222B-D that, although Ranger
had acquired domicile by demonstrable active steps before the
promulgation of the repealing enactment, his right had, on “the
only reasonable interpretation to be put upon the new legislation”
been taken away by the deliberate intention and object of the
repealing enactment to ouster section 12(1)(c) of the Interpretation
Act.
I
derive two legal principles from the Ranger
case, supra,
that are relevant to the determination of the present appeal:
(i)
The first is that the rights preserved under section 17(1)(c) only
accrue if they are actively exercised before the repository enactment
is repealed.
(ii)
The second (at 221H-222D) is that the cause of action for the
beneficiary is invoked at the time “any legal proceeding” is
instituted.
Lastly,
in Chivore
v Vainona Primary School Parents Association
1992 (1) ZLR 322 (S), a parent challenged the retrospective
invocation of a provision in a repealed enactment that had not been
re-enacted in the repealing enactment.
The
ratio
decidendi
of GUBBAY CJ at 324H-325A was that the non-retention of the repealed
provision was irrelevant. This was because a new section, which
preserved the agreement that preceded the repeal, had been inserted
in the repealing enactment. That section vested in the Minister the
unfettered power to consummate an agreement similar to the one under
attack.
In
the alternative, in remarks that can only be obiter
dictum,
the learned Chief Justice opined that the right to raise levies had
become vested, and was therefore safeguarded at the date of the
repeal by section 15(1)(c) of the Interpretation Act.
The
obiter
dictum
was based on Craies
on Statute Law,
17th
ed at p415, where the learned authors say:
“If
a right has once
been acquired
by virtue of some statute, it will not be taken away by the repeal of
the statute under which it was
acquired.
'The law itself' says Pupendorf, in his Law
of Nature and Nations,
Bk 1, c6, s6 'may be disannulled by the author, but the
right acquired
by virtue of that law whilst in force must still remain; for,
together with a law, to take away all its precedent effects would be
a high piece of injustice.'” (My underlining for emphasis).
Regrettably,
the persuasive force of the obiter
dictum
is undermined by two factors:
(i)
The first is that the facts of the case do not disclose whether or
not the Parents Association raised the levies before or after the
date of the amendment.
(ii)
The second is that the learned CHIEF JUSTICE did not interrogate the
meaning of “acquired” posited in the academic works of Pupendorf
and the authors of Craies
on Statute Law.
This could have been for the obvious reason that the highly
persuasive precedent of Ranger's
case, supra,
was never brought to his attention.
ANALYSIS
OF THE ARGUMENTS
In
his foundational document, the appellant nailed the colours of his
case on the mast of the declaration of invalidity of section 3(1) of
the repealed enactment.
His
claim was not premised upon the ongoing effects of the repealed
enactment.
He
could therefore not rely on the declaration of invalidity against
section 3(1) to obtain the second relief sought.
Nor
could he rely on a ground of appeal he did not plead or argue in the
court a
quo.
The
issue pertaining to the crystallization of his cause of action
pre-dating the repealing enactment was a new issue that he did not
plead in his founding affidavit or argue during the trial.
On
the authority of the Bakari
case
and the cases cited therein, the appellant was precluded from raising
this issue on appeal.
The
failure to plead and argue it a
quo
was unfair and prejudicial to the respondent especially in the light
of the two propositions that arise from the Ranger
case, supra.
The
appellant did not demonstrate in his founding affidavit that he had
asserted and therefore acquired or accrued any rights to sue the
respondents from the repealed enactment.
In
addition, it is a condition precedent to the exercise of the High
Court's discretion to invoke the provisions of section 14 of the
High Court Act for an applicant for a declarator to demonstrate that
the section or enactment that he seeks to annul is extant.
A
disannulled enactment is for all intents and purposes dead. It cannot
be resurrected.
In
my estimation, it cannot even be revived by the continuing effects
preserved by section 17(1)(c) of the Interpretation Act.
Those
continuing effects may, however, be disannulled on proof that they
were rights or obligations acquired or accrued from the repealed
enactment.
The
appellant woefully failed to plead a proper cause of action that
would entitle him to the relief he sought a
quo.
It
is for these reasons that I hold that the findings of the court a
quo
are unassailable. Accordingly, the contentions advanced by Mr Madhuku
in respect of the first ground and the kindred alternative second
ground of appeal were misconceived. They are devoid of merit and
ought to be dismissed.
COSTS
The
second respondent sought costs on the legal practitioner and client
scale while the first respondent prayed for ordinary costs.
Costs
are always in the discretion of the court.
I
am satisfied that the appeal was irredeemable. It did not raise any
important legal issues. It must have been apparent to the appellant
that his appeal was unmeritorious. It is axiomatic that one cannot
flog a dead horse to life. The appeal was merely intended to harass
the respondents. It, therefore constituted an abuse of the appeal
process.
I
am satisfied that this is a proper appeal for mulcting the appellant
with costs on the higher scale as prayed for by the second appellant.
It
does not appear proper to me to award the first respondent who really
had no right of audience before this court any order of costs.
DISPOSITION
The
appellant could not properly seek a declarator against a repealed
enactment. He could seek such a declarator against the continuing
effects arising from the rights or obligations accrued or acquired or
imposed by the disannulled enactment. He could not do so by
predicating such relief on a defective cause of action for the
disannulment of a repealed enactment.
The
case of Ranger,
supra, and not Chivore, supra,
properly defines the stage at which a right or obligation accrues
under section 17(1)(c) of the Interpretation Act.
It
accrues only when the beneficiary takes active steps to assert the
right or obligation before the repeal of the Act and is preserved if
the repealing Act does not in context oust the provisions of section
17(1)(c) of the Interpretation Act.
The
appellant failed to discharge the onus, on a balance of
probabilities, of his entitlement to the declarator that he sought a
quo
and on appeal.
Accordingly,
it is ordered that:
1.
The appeal be and is hereby dismissed.
2.
The appellant shall pay the costs of appeal of the second respondent
on the scale of legal practitioner and client.
GUVAVA
JA :
I
agree
MAVANGIRA
JA: I
agree
Dururu
A & Associates,
the appellant's legal practitioners
Civil
Division of the Attorney General's Office,
the 1st
respondent's legal practitioners
Dube,
Manikai & Hwacha,
the 2nd
respondent's legal practitioners
