GOWORA
AJCC:
This
is an application for leave for direct access to the court made in
terms of section 167(5) of the Constitution (“the Constitution”),
as read with Rule 21(2) and (3) of the Constitutional Court Rules,
2016 (“the Rules”).
The
application is opposed.
FACTUAL
BACKGROUND
The
applicant and the respondent were involved in a labour dispute which
ultimately found its way before the Supreme Court. The Supreme Court
found in favour of the applicant and ordered the respondent to pay
the applicant an amount of USD41,161.30 as damages for unlawful
dismissal.
Pursuant
to the order, the applicant caused a writ of execution to be issued
out for the attachment of the movable property of the respondent in
satisfaction of the judgment. She instructed the second respondent to
execute the writ. Upon service of the writ, on 15 January 2020, the
first respondent paid through RTGS the sum of 43,495.37.
Notwithstanding such payment, the applicant caused the seizure of the
respondent's movable property which prompted the latter to seek a
provisional order to stay the execution of the writ.
The
applicant was undeterred.
On
7 July 2020, she caused the issuance of an additional writ, this time
against the movable and immovable property of the respondent. On 28
July 2020, an immovable property of the first respondent was attached
in execution pursuant to the second writ. The second respondent was
instructed to sell the property. The sale was scheduled to take place
on 2 October 2002.
The
first respondent reacted.
It
filed an urgent court application seeking the setting aside of the
second writ of execution and the consequential attachment of the
immovable property. The applicant was given five days to respond to
the application.
Due
to an error, the matter was treated as an urgent chamber application
instead of a court application and referred to a judge in chambers.
The applicant had not, at that stage, filed any papers in response.
There was also no proof on record that the first respondent had
served the court application on the applicant as required by the
rules of court. At the time, the dies
induciae
stated on the application had not expired and the matter was removed
from the roll for urgent chamber applications.
After
correspondence from the first respondent to the High Court pointing
out the errors was received, the error was rectified and the parties
filed their papers in accordance with the rules.
The
applicant had grievances on how papers of the application were served
on her.
She
filed several letters in the record raising issues on how the matter
was being dealt with by the first respondent and the conduct of the
matter by court officials.
The
first respondent also requested audience with the judge to whom the
matter had been assigned. The learned judge acceded and set a date
for the parties to appear before her.
On
28 September 2020, the parties appeared before a judge of the High
Court in chambers for a case management meeting to prepare a road map
for the disposal of the matter.
During
the meeting, the first respondent requested that the applicant agree
to a postponement of the judicial sale of the immovable property. The
applicant would not agree resulting in the former making an oral
application for the suspension of the sale in execution. Pursuant to
that meeting an order in the following terms was issued:
“IT
IS ORDERED THAT:
1.
First respondent to be served with applicant's answering affidavit
and heads of argument forthwith.
2.
The first respondent shall if she so wishes file her heads of
argument on or before 5 October 2020.
3.
The matter HC4380/20 be set down on 8 October 2020.
4.
The writ of execution in SC119/19 be suspended pending the decision
of the court in HC4380/20.
5.
Costs of the stay in execution incurred by the second respondent
pending the decision of the court in HC4380/20 shall be borne by the
applicant.”
On
7 October 2020, the applicant filed this application for direct
access to the Court.
She
attached a copy of the main application she wishes to file under
section 85(1) of the Constitution in which she alleges that her
rights had been violated by the order granted by the court a
quo.
THE
LAW
The
applicant intends to bring an application to the Court under section
85(1) of the Constitution alleging a violation of her fundamental
rights as enshrined in section 56(1) of the Constitution. She alleges
that her right to protection of the law under section 56(1) of the
Constitution was infringed by a judgment of the High Court issued on
28 September 2020.
Section
167(5) of the Constitution provides that rules of the court must
allow a person, when it is in the interests of justice, with or
without leave, to bring a constitutional matter to the Constitutional
Court.
In
turn, Rule 21 makes provision for the manner of bringing such
application to the court.
Rule
21(2) requires that such application be supported by an affidavit
setting out the facts upon which the applicant seeks relief.
The
founding affidavit by the applicant for direct access does not set
out any facts as required by Rule 21(2). Instead, the applicant
incorporates her founding affidavit in the main application and the
pleadings filed under Case No HC4380/20.
Direct
access is an extraordinary remedy that should only be granted in
exceptional cases.
Rule
21(3) provides in relevant part as follows:
“(3)
An application in terms of subrule (2) shall be filed with the
Registrar and served on all parties with a direct or substantial
interest in the relief claimed and shall set out —
(a)
the grounds on which it is contended that it is in the interests of
justice that an order for direct access be granted; and
(b)
the nature of the relief sought and the grounds upon which such
relief is based; and
(c)
whether the matter can be dealt with by the court without the hearing
of oral evidence or, if it cannot, how such evidence should be
adduced and any conflict of facts resolved.
(4)
The applicant shall attach to the application a draft of the
substantive application.”
As
is evident from subrule (3)(c) the applicant should state in the
affidavit whether the matter can be dealt with by the court without
the need to hear oral evidence or, if it cannot, how such evidence
should be adduced and any conflict of facts resolved.
The
applicant has not complied with this additional requirement.
In
Zimbabwe
Development Party v President of Zimbabwe
CCZ 3/18, the court said the following:
“The
Rules
set
out the objective factors a litigant has to state in a chamber
application for direct access for consideration by the Court or Judge
in the determination of the question whether it is in the interests
of justice to grant direct access. There must be filed with the
registrar, and served on all parties with direct or substantial
interest in the relief claimed, an application setting out the
grounds on which it is claimed it is in the interests of justice that
direct access be granted.”
The
view I take is that notwithstanding the omissions in the affidavit,
this is a matter in which the court can reach a determination on the
substance.
This
is because the papers themselves, including the record from the High
Court, clearly map out the events surrounding the order by the court
a
quo.
In addition, the learned judge provided detailed reasons for the
order made.
For
that reason, it is my view that the failure to set out the facts as
required by Rule 21(2) does not disable the court from determining
this matter.
I
consider each of the requirements as provided in the rule ad
seriatim.
WHETHER
IT IS IN THE INTERESTS OF JUSTICE THAT DIRECT ACCESS BE GRANTED
The
Constitutional Court is a specialised court and in terms of section
167(1)(b) decides only constitutional matters and issues connected
with decisions on constitutional matters.
It
thus exercises jurisdiction as a court of first instance and an
appeal court.
In
view of the limited jurisdiction of this Court, direct access to the
court for the exercise of its jurisdiction for the vindication of a
fundamental right premised on section 85 of the Constitution as a
court of first instance is granted to a litigant who is able to show
that it is in the interests of justice for direct access to the court
to be granted to such litigant.
The
import of the principle for the requirement that an applicant for
direct access show that it is in the interest of justice that the
application be granted ought not to be minimized.
The
requirement was explained by I Currie and J de Waal in 'The Bill of
Rights Handbook' 6ed, at p128 as follows:
“Direct
access is an extraordinary procedure that has been granted by the
Constitutional Court in only a handful of cases.……
If
constitutional matters could be brought directly to it as a matter of
course, the Constitutional Court could be called upon to deal with
disputed facts on which evidence might be necessary, to decide
constitutional issues which are not decisive of the litigation and
which might prove to be of purely academic interest and to hear cases
without the benefit of the views of other courts having
constitutional jurisdiction.
Moreover……
it is not ordinarily in the interest of justice for a court to sit as
a court of first instance, in which matters are decided without there
being any possibility of appealing against the decision given.”
A
court that sits to decide whether or not it is in the interests of
justice that direct access be granted may take into account a number
of factors for consideration. Those factors are set out in Rule 21(8)
as follows:
“(8)
In determining whether or not it is in the interest of justice for a
matter to be brought directly to the Court, the Court or Judge may,
in addition to any other relevant consideration, take the following
into account —
(a)
the prospects of success if direct access is granted;
(b)
whether the applicant has any other remedy available to him or her;
(c)
whether there are disputes of fact in the matter.”
Within
this jurisdiction, the requirement that an applicant shows prospects
of success as regards the main application as provided for in Rule
21(8) was settled in Lytton
Investments (Pvt) Ltd v Standard Chartered Bank Zimbabwe Ltd and Anor
CCZ 11/18, wherein the court made the following remarks:
“The
Court turns to determine the question whether the applicant has shown
that direct access to it is in the interests of justice. Two factors
have to be satisfied. The first is that the applicant must state
facts or grounds in the founding affidavit, the consideration of
which would lead to the finding that it is in the interests of
justice to have the constitutional matter placed before the court
directly, instead of it being heard and determined by a lower court
with concurrent jurisdiction. The
second factor is that the applicant must set out in the founding
affidavit facts or grounds that show that the main application has
prospects of success should direct access be granted.”
(emphasis is mine)
In
casu,
it is common cause that the decision that the applicant alleges to be
in violation of her rights is an interlocutory one.
It
was the decision to suspend the sale of the first respondent's
immovable property pending the determination of the matter on the
substance. The suspension of the sale did not determine any rights of
the respective parties. The decision served to preserve the rights of
the parties until a decision on the merits had been made. The court
reasoned thus:
“This
Court is required to decide, on 8 October 2020, whether the payment
by the applicant,(first respondent herein), of $43,495,37 to the
Deputy Sheriff on 14 January 2020 sufficiently discharged its
indebtedness to first respondent thus warranting a stay of execution
and the setting aside of the writ issued on 7 July 2020. While first
respondent is a self-actor she ought to understand that it is
improper to insist on a sale in execution and thus render the
decision of the court a brutum
fulmen,
particularly where the date of disposal of the matter has been
agreed. In any event, she suffers no prejudice as the property
remains under attachment with costs for the suspension of the sale
being to the charge of the applicant. If she succeeds in opposing the
application for stay of execution, she can continue with the
execution which is merely being suspended, and not set aside.
However, if execution is allowed to continue and it transpires that
the applicant had indeed settled the judgment debt in full, then the
harm to it would be irreparable as its property would have been sold
to an innocent third party. While it is understandable that the first
respondent is frustrated at the delay in obtaining just satisfaction
for the applicant, it cannot be reasonable to insist on the sale in
execution as that makes the whole process an exercise in futility.
Therefore the balance of convenience favours the applicant.”
A
consideration of the reasons by the learned judge in the lower court
shows that the real dispute between the parties has not even been
heard. Thus, the rationale for the applicant to insist on execution
of the writ of 7 July 2020 has not yet been ventilated. There are
issues of fact and law that have yet to be determined.
Indeed,
if the applicant had not mounted these proceedings the main dispute
which was scheduled for hearing on 8 October 2020 would have been
decided by the High Court by now.
This
means that there is not even an issue of the applicant not having
exhausted her domestic remedies as there were no domestic remedies to
resort to.
As
explained by her ladyship in the judgment, the suspension of the sale
was a reasonable intervention that would serve to achieve justice
between the parties.
The
court had to decide whether or not the first respondent had satisfied
the judgment debt and, in the interim, to ensure that the judgment
would not be a brutum
fulmen
the sale had to be suspended.
No
prejudice ensued against either party as the applicant, would if
successful, be able to have the sale continue and recover from the
sale whatever the court would have decided was still owed.
As
a consequence, the court is disabled from considering the first
factor mentioned in the rules, that of prospects of success. There is
nothing to consider and determine due to the fact that the real
dispute between the parties is pending before the court a
quo.
The
correct position is that proceedings between the parties are still
pending in the High Court. This, therefore, means that the
application is ill-conceived and this court has in several cases
pronounced on the imprudence of an applicant adopting this course of
action.
The
dicta in Chihava
v Provincial Magistrate Mapfumo N.O. & Anor
2015 (2) ZLR 31, at 38G-H, are apposite. GWAUNZA JCC (as she then
was) remarked:
“I,
therefore, entertain no doubt that the certainty referred to above
would be completely eroded were the courts to operate based on a
literal and grammatical interpretation of section 85(1). This
circumstance is not only highly undesirable, but it would also
constitute an affront to the time-honoured common law principle that
a superior court should be slow to intervene in ongoing proceedings
in an inferior court, except in exceptional circumstances. This
principle is persuasively articulated as follows in the case of
Wahlhaus
v Additional Magistrate, Johannesburg
1959
(3) SA 113 (A);
“… a
superior court would be slow to exercise any power upon the
unterminated course of criminal proceedings in a court below, but
would do so in rare cases where grave injustice might otherwise
result or where justice might not by other means be attained.”
See
also Mushapaidze
v St Anne's Hospital & Ors
CCZ
18/17.
The
above remarks are apposite in this case.
The
High Court is seized with a very critical issue between the parties,
viz, whether or not the first respondent has met its obligations in
terms of the judgment obtained by the applicant.
The
court a
quo
is
not aware of these proceedings or the fact that its directive is
being impugned by the applicant.
A
perusal of the founding affidavit to the main application will tend
to show that the applicant is aggrieved by the grant of the stay of
execution concerning the sale scheduled for 2 October 2020. I do not
read from the substance of the affidavit an allegation that the court
a
quo
conducted itself in a manner that could be considered a violation of
the applicant's rights to a fair hearing. The complaints emanating
from the affidavit focus on procedural and substantive issues
regarding the order suspending the sale in execution.
In
Bruce
v Fleecytex Johannesburg CC
1998 (2) SA 1143 (CC) [4], the Constitutional Court of South Africa,
in considering an application for direct access made the following
remarks:
“……..If
Bruce is entitled to any relief she can obtain it from the High
Court. In effect what she is now seeking to do through the
application for direct access is to appeal against the decision of
Wunsh J on an issue that was not raised in the proceedings before
him, and to avoid the normal appeal procedure by launching
proceedings for direct access to this Court.
[22]
KENTRIDGE AJ made it clear in his judgment in S
v Zuma and Others
[26] that applications for direct access are to be entertained in
exceptional circumstances and not merely to avoid the consequences of
incorrect procedures that have been followed. If, notwithstanding the
pending appeal, Bruce is entitled to raise the constitutionality of
s180(3) of the Insolvency Act in separate proceedings, she can
initiate such proceedings in the High Court; but if she is not
entitled to do so, she cannot avoid the consequences of her earlier
omission by applying to this court for relief.
[23]
I am satisfied that grounds for direct access have not been
established and that this is not a proper case for the granting of
such relief.”
There
is a suggestion that the learned judge had indicated that the matter
was not urgent.
This
does not appear to be supported by the learned judge's reasons for
its removal from the roll. In any event, it is of no moment as the
matter was filed as an urgent court application and not an urgent
chamber application. There is a difference in the manner of treatment
of the two by the registrar and the court itself.
An
urgent chamber application must be placed before the judge in
chambers upon its filing, whereas an urgent court application must
comply with the dies
induciae
as stated on the face of the application. It must be placed on the
roll after the respondent or respondents, as the case may be, have
been availed an opportunity to file papers in opposition.
DISPOSITION
I
do not find it necessary to consider whether or not the applicant has
established whether or not there is no other remedy available or if
the matter cannot be dealt with without the calling of evidence.
The
application seeks to challenge interlocutory proceedings and this is
not permissible in the light of the authorities referred to above.
From
the aforegoing, the applicant has not established that it is in the
interests of justice that the application be granted. The application
must fail.
The
first respondent has prayed that the applicant be mulcted with an
order for costs.
In
constitutional matters, it is not the norm that costs be awarded
against the unsuccessful litigant. The first respondent has not
suggested that the applicant is guilty of vexatious conduct or an
abuse of court process. Nor has it been suggested that the
application is frivolous. In the premises, it is my view that an
order for costs is not warranted.
Accordingly,
it is ordered that the application be and is hereby is dismissed with
no order as to costs.
GARWE
AJCC: I
agree
PATEL
AJCC: I
agree
Gill,
Godlonton & Gerrans,
legal practitioners for the first respondent
