Application
in terms of Rule 449 of the High Court Rules, 1971
MAKARAU
JCC: After
hearing argument on the preliminary point whether the applicants
required leave of the court to bring their application, the court
ruled that leave was necessary. Having been filed without leave, the
matter brought by the applicants was struck off the roll with no
order as to costs with the court indicating that its reasons would
follow in due course.
I
now set these out.
The
matter is an application in terms of the then Rule 449 of the High
Court Rules 1971, now
Rule 29 of the High Court Rules 2021, as
read with Rule 45 of the Constitutional Court Rules, 2016, (“the
Rules”).
Rule
449 of the High Court Rules provided:
“449.
Correction, variation and rescission of judgments and orders
(1)
The court or a judge may, in addition to any other power it or he may
have, mero
motu
or
upon the application of any party affected, correct, rescind, or vary
any judgment or order —
(a)
that was erroneously sought or erroneously granted in the absence of
any party affected thereby; or
(b)
in which there is an ambiguity or a patent error or omission, but
only to the extent of such ambiguity, error or omission; or
(c)
that was granted as the result of a mistake common to the parties.
(2)
The court or a judge shall not make any order correcting, rescinding
or varying a judgment or order unless satisfied that all parties
whose interests may be affected have had notice of the order
proposed.”
This
rule of the High Court is applicable in this Court by virtue of the
provisions of Rule 45 of the Rules.
Rule
45 imports into the practice and procedures of this Court, as near as
may be, the practice and procedures of the Supreme Court, or where
the rules of the Supreme Court are silent, of the High Court, in any
matter that is not dealt with by the Rules.
There
is no equivalent of Rule 449 of the High Court Rules in the Rules or
in the rules of the Supreme Court.
The
applicants seek the rescission of an order of this Court dated 18
November 2015 on the basis that the order, handed down with the
consent of the parties to that suit, was sought and granted in error
and in the absence of the applicants who are adversely affected by
it.
They
further contend that they bring the application in terms of section
167(5)(a) as read with section 176 of the Constitution of Zimbabwe.
Section
167(5)(a) provides for the enactment of rules for this Court to allow
litigants, when it is in the interests of justice, with or without
leave of the court, to bring matters directly to the court whilst
section 176 grants this court inherent powers to protect and regulate
its own processes.
I
shall advert to these two sections of the Constitution in detail
below.
Factual
Background
The
applicants allegedly reside on a piece of land in the District of
Hartley known as Kingsdale of Johannesburg. I note in passing that
the exact nature of each applicant's tenure on the land in dispute
was not described in the founding affidavit.
Fleeting
mention is however made in the opposing affidavit that the applicants
may be occupying the land as beneficiaries of the land reform
programme that was undertaken by the State commencing in the year
2000.
The
tenure of each applicant on the land in question was however of no
import in the determination of the preliminary point.
Kingsdale
of Johannesburg was agricultural land, owned by one Pieter Nicholas
Nel (“Nel”), now deceased and represented herein by the fourth
respondent, Adam James Hartnack.
In
or about 2015, the land was identified for acquisition by the State
under the Land Acquisition Act [Chapter
20:10]
and processes to acquire the land were put under way.
The
acquisition of the land was contested.
At
the time the current Constitution became operative in 2013, Kingsdale
of Johannesburg, together with other pieces of agricultural land, had
been listed in Schedule 7 of the repealed constitution.
The
significance of such listing is to be found in section 72(4)(a) of
the Constitution which provides that ownership of all agricultural
land which was itemized in Schedule 7 to the former Constitution
continues to be vested in the State.
Following
litigation brought by the second respondent herein, Maparahwe
Properties (Private) Limited, Nel and five others over the nature and
ownership of the land, which litigation commenced before the
Constitution became operative, this Court, with the consent of the
parties in case Number CCZ 43/15, issued an order declaring that
Kingsdale of Johannesburg is private land.
In
consequence thereof, the first respondent herein, the Minister of
Agriculture, Lands, Water and Rural Resettlement, was ordered to
withdraw his or her acquisition of the land under the Land
Acquisition Act and to publish such withdrawal in the Government
Gazette and in the Herald Newspaper within 14 days of the order.
It
was further declared that ownership of the land vested in the second
respondent, Maparahwe Properties (Private) Limited, which had
purchased the land from Nel during his lifetime.
The
order authorized the second respondent herein to proceed with its
development of the land into urban residential stands.
I
reproduce the order in full:
“1.
Kingsdale Housing Cooperative Society limited be and is hereby joined
to these proceedings as the second respondent.
2.
It is declared that the applicant's right under section 68(1) of
the Constitution of Zimbabwe to fair, just and prompt administrative
action has been violated.
3.
It is declared that Kingsdale of Johannesburg measuring 161,8238
hectares in the District of Hartley is private land.
4.
Consequently, it is ordered that:
4.1.
The first respondent be and is hereby ordered to withdraw its
acquisition of land aforesaid and shall cause the publication of such
withdrawal in the Government Gazette and the Herald Newspaper within
fourteen (14) days of this order.
4.2.
The land aforesaid vests in the first applicant who shall proceed
with urban development of the said land up to the issuance of title
surveys in accordance with permits issued or to be issued by the
relevant town planning authority.
4.3.
Any agreements of sale between first applicant and any other person
as of the 26th
February 2015, (the date of purported acquisition) remain valid and
enforceable.
4.4.
All persons, with the exception of the second respondent's
registered members as at 12 November 2013, in illegal occupation or
possession of any portion of the said land forthwith vacate the land
failing which the Sheriff of Zimbabwe or his lawful Deputy be and is
hereby authorized to eject them.
4.5
The First applicant hereby donates to the Government of Zimbabwe
twenty-one (21) hectares of land in the area covered by
Garikai/Hlalani Kuhle Housing Scheme and ZESA Servitudes.
4.6
The first applicant shall develop the land in terms of paragraph 4.2
above and the members of the second respondent and persons referred
to in paragraph 4.3 above shall compensate the first applicant for
the remaining land measuring 140 hectares at US$5.00 per square metre
in accordance with the terms of a Deed of Settlement to be signed by
the parties and incorporated in the order of the Administrative
Court.
5.
Each party to bear its own costs.”
Contending
that the declaration by this Court under para 3 and the consequential
relief granted under para 4 of its order are unconstitutional as they
violate the provisions of section 72(4)(a) of the Constitution, the
applicants approached this Court as detailed above.
To
support the contention, it was argued that this Court cannot override
or ignore the express provisions of the Constitution on what is and
is not State land. By virtue of being itemized under schedule 7 of
the repealed constitution, it was argued, Kingsdale of Johannesburg
remained and is State land. In the circumstances of the matter, the
argument proceeded, it was clearly an error for this Court to
declare, as it did, that the land is private land.
Strongly
believing, and still arguing at the hearing of the application, that
such was not necessary, the applicants legal practitioner and counsel
did not seek leave of this Court as is provided for in Rule 21(1) of
the Rules.
The
non-observance of the provisions of Rule 21(1) gave rise to the
preliminary point taken by the respondents as to whether the
application was properly before the court.
The
precise issue that arose for the determination of the court was
whether leave of the court in accordance with Rule 21(1) is required
for an application for the setting aside of an order of this Court
under Rule 449 of the High Court Rules 1971 as read with Rule 45 of
the Rules.
As
indicated above, the Court ruled that such leave is a pre-requisite.
The
Arguments
Mr
Dracos
for the fourth respondent made the simple point that the matter
before the court, being an application in terms of Rule 449 of the
High Court Rules, is not listed in Rule 21 of the Rules as one that
does not require leave of the court before it is instituted.
He
invoked the expressio
unius est exclusio alterius
maxim to buttress his argument in this regard.
By
invoking the expressio
unius est exclusio alterius
maxim, Mr.
Dracos
was in essence arguing that the Rules are exhaustive and,
consequently, if a matter has been excluded from the list of matters
for which leave is not required, then leave is always required.
Correctly
understood, the argument by Mr
Dracos
represents a narrow view of the inter-play between the exclusive
jurisdiction of this Court and the right to access that jurisdiction
directly and without leave.
The
view point is not fully reflective of and is not borne out by the
practice of this Court.
There
are matters that are not listed in Rule 21 as not requiring leave and
for which leave is not necessary. Examples of such matters are
applications for joinder of parties for instance, or for the
consolidation of causes already before the court. These primarily are
cases that routine and arise incidentally during the determination of
causes properly before the court.
I
will advert to such matters in detail below.
Submitting
that the point in
limine
was well taken, Mr Uriri
associated himself fully with the arguments advanced by Mr Dracos
and
made no additional submissions.
Mr
Madhuku
for the applicants on the other hand, strongly argued that leave of
the court in the circumstances of this application was unnecessary.
He made three distinct submissions:
(i)
Firstly, he argued that in matters where this Court has exclusive
jurisdiction, leave to trigger that jurisdiction is not required.
Also
focusing on Rule 21, he argued that it becomes an illogical
interpretation of the rule for leave to be sought where the court is
the only court that can determine the matter. In this vein he
pointed, and indisputably so, to the fact that this Court is the only
court that has jurisdiction in this matter as only this Court can
rescind its own decision as prayed for in the draft order.
(ii)
Secondly, and as an offshoot of the first argument, Mr Madhuku
argued that it is only in instances where this Court enjoys
concurrent jurisdiction with other courts that the notion of leave
arises and may become necessary.
He
argued that in such circumstances, for one to avoid or bypass the
other equally competent courts and gain direct access to this Court,
as a general rule, one can only do so with leave. Direct access then
becomes an indulgence in the discretion of the court.
In
contrast, he continued, where this Court is the only available forum,
access to that court is not and should not be an indulgence but a
right.
(iii)
Finally, and to counter the invocation of the maxim
expressio unius est exclusio alterius
by Mr
Dracos,
Mr
Madhuku
submitted that the rules of this Court are not exhaustive and were
not drafted to be so or with the intention that they be so.
Correctly
understood, the argument by Mr
Madhuku
advocates very liberal direct access to this Court in matters where
it is the only court that can determine the matter. Such direct
access must be without leave.
Thus,
he argued that establishing prospects of success beforehand, a
necessary element to be satisfied in an application for leave for
direct access, has no place in a matter where the court has exclusive
jurisdiction.
Direct
access to argue the merits of the matter must not be hindered or
obstructed.
In
this regard he relied on the remarks of this Court in Meda
v Sibanda and Ors
2016 (2) ZLR 232 (CC) where it was held in respect of a section 85(1)
application that:
“It
is clear from a reading of section 85(1) of the Constitution that a
person approaching the Court in terms of the section only has to
allege an infringement of a fundamental human right for the Court to
be seized with the matter. The purpose of the section is to allow
litigants as much freedom of access to courts on questions of
violation of fundamental human rights and freedoms with minimal
technicalities. The facts on which the allegation is based must, of
course, appear in the founding affidavit.
Whether
or not the allegation is subsequently established as true is a
question which does not arise in an enquiry as to whether the matter
is properly before the Court in terms of section 85(1).”
The
Law and Analysis
The
jurisdiction of a court and access to that jurisdiction are two
distinct legal precepts. The two are complementary but are not
synonymous. They are not to be conflated. They have their foundations
in two different laws.
The
jurisdiction of a court is to be found in substantive law while
access to that jurisdiction and the conduct of litigation in that
court are part of the adjectival law.
Broadly
stated, particularly in civil matters, substantive law defines the
rights, duties and obligations of the parties and the court that has
the competence to define those rights, duties and obligations and
where they lie. On the other hand, adjectival law lays out the
practical procedural steps necessary for the injured party to enforce
those rights and obtain appropriate remedies or redress.
The
law governing direct access to this Court, with or without leave, is
adjectival law. It is the law of practice and procedure.
The
law governing access to this Court is to be found largely in the
Rules of this Court and less in the provisions of the Constitution
setting out the jurisdiction of this Court.
The
jurisdiction of this Court is provided for in section 167(1) of the
Constitution as follows:
“(1)
The Constitutional Court –
(a)
is the highest court in all constitutional matters, and its decision
on those matters bind all other courts;
(b)
decides only constitutional matters and issues connected with
decisions on constitutional matters, in particular references and
applications under section 131(8)(b) and para 9(2) of the Fifth
Schedule; and
(c)
makes the final decision whether a matter is a constitutional matter
or whether an issue is connected with a decision on a constitutional
matter.”
The
Constitution then proceeds in section 167(2) to provide for the four
matters where only the Constitutional Court has jurisdiction.
I
pause momentarily to underscore that the Constitution does not
provide specifically when one can bring such matters or any other
constitutional matter, directly and without leave, to the
Constitutional Court.
It
instead provides in section 167(5) that:
“(5)
Rules of the Constitutional Court must allow a person, when it is in
the interests of justice and with or without leave of the
Constitutional Court –
(a)
to bring a constitutional matter directly to the Constitutional
Court;
(b)
to appeal directly to the Constitutional Court from any other court;
(c)
to appear as a friend of the court.”
Still
digressing, I note that this is the section that Mr
Madhuku
relied on to argue that direct access to this Court without leave for
an application in terms of Rule 449 of the High Court Rules is
guaranteed.
I
am unable to read his argument in the section.
My
reading of the section is that it merely enables the promulgation of
Rules of the court to provide for direct access to the court with or
without leave, when it is in the interests of justice to allow such
access.
Prior
to the promulgation of the Rules of this Court, GWAUNZA JCC (as she
then was) observed in Prosecutor-General
v Telecel Zimbabwe (Private) Limited
CCZ
10/15 that:
“Except
for the specific instances stipulated in section 167(1)(b) and
section 167(2)(b),(c) and (d), section 167 does not elaborate as to
who, on what conditions or how, a party may approach the Court for it
to exercise the jurisdiction conferred upon it by that provision.”
Her
Ladyship continued:
“Thus
section 167(1), apart from the paragraphs mentioned, does not confer
on anyone the right to approach the Constitutional Court directly,
even if they have, or perceive themselves to have a constitutional
matter needing the Court's determination.”
(The underlining is mine).
I
again hasten to mention that, by design, the matters that GWAUNZA JCC
(as she then was), specified as requiring no leave before institution
have been listed amongst others as such in Rule 21.
Whilst
awaiting the promulgation of the Rules, the court, using its inherent
jurisdiction as granted to it by section 176 of the Constitution, set
the practice that such matters required no prior leave.
With
the promulgation of the Rules, the position of the law is that,
whilst the Constitution provides for the jurisdiction of the court in
section 167, it leaves the development of the adjectival law
regulating direct access to that jurisdiction, with or without leave,
to the Rules.
It
is a rule of common law and an entrenched part of our practice and
procedure that matters are to be brought before the court in
accordance with the rules of that court.
The
remarks of PATEL JCC in Marx
Mupungu v The Minister of Agriculture, Lands, Water and Rural
Resettlement and Others
CCZ 7/21 are apt. He wrote:
“One
cannot institute an action or application in the High Court, or any
other court, without due observance of and compliance with the Rules
of that court. The Rules inform a litigant of what is required of him
to access the court concerned. If he fails to observe or comply with
those Rules, he will inevitably be non-suited”.
Litigation
in this Court is no exception.
If
anything, constitutional litigation has developed its own practice
and procedures, distinct from civil procedure in the other courts of
the land, the fine nuances of which litigants and legal practitioners
alike must familiarize themselves with.
Rule
21(1) of the Constitutional Court Rules provides that:
“21(1)
The following matters shall not require leave of the Court -
(a)
disputes concerning an election to the office of President or Vice
President;
(b)
disputes relating to whether or not a person qualified to hold the
office of President or Vice President;
(c)
referrals from a court of lesser jurisdiction;
(d)
determinations on whether Parliament or the President has failed to
fulfil a constitutional obligation;
(e)
appeals in terms of section 175(3) of the Constitution against an
order concerning the constitutional validity or invalidity of any
law.
(f)
where the liberty of an individual is at stake;
(g)
challenges to the validity of a declaration of a State of Public
Emergency or an extension of a State of Public Emergency.”
But,
as correctly argued by Mr
Madhuku,
the Rules are not exhaustive.
The
Constitution in section 167 defines the jurisdiction of this Court.
This is in respect of the subject matter that can be brought before
the court.
In
section 176, it grants this Court inherent jurisdiction to protect
and regulate its own processes. Matters that will then arise
procedurally from the exercise of this inherent jurisdiction to
protect and control its processes are naturally in the exclusive
jurisdiction of this Court.
I
give examples of such matters elsewhere in this judgment.
Whilst
the Rules have provided that matters that are in the exclusive
jurisdiction of the court by virtue of section 167 of the
Constitution, among others, do not require leave, they have not
similarly provided for procedures that are in the exclusive
jurisdiction of the court by virtue of section 176.
Whilst
the Rules have not included procedural matters that may arise during
the litigation of a constitutional matter in the list of matters for
which no leave is required, it stands to reason that no leave of
court is required before such matters are raised.
Applications
for postponement, for joinder of parties, for amendment of notices
and papers filed with the court, for consolidation of matters before
the court, and for the recusal of one or more members of the court
among others, fall into this category.
Self-evidently,
it would be an illogical reading of Rule 21 to say that leave is
required before such applications are made merely because they have
not been specifically included in the list of matters for which no
leave is required in terms of Rule 21.
Applied
to the matters that are in this category, there is therefore some
cogency in Mr Madhuku's
argument that, for matters where the court is the only court that can
determine the issue, leave is not required.
But
this rule, if it may be called that, is limited only to instances
where the matter to be determined arises in the course of litigation
and from the exercise of the power of the court to protect and
control its processes.
The
issue must be procedural.
Applications
for the setting aside of extant orders under Rule 449 of the High
Court Rules 1971 do not arise during the course of litigation.
But
that is not all.
Applications
for leave for direct access under Rule 21 serve a dual purpose:
(i)
Firstly, in matters where this Court enjoys concurrent jurisdiction
with other courts, they serve to satisfy the court that it is in the
interests of justice that this Court act as a court of first
instance. In all other matters, applications for leave to access the
court directly serve to satisfy the court that it is in the interests
of justice for it to determine the matter at all.
(ii)
The second purpose has a gate-keeping function. It acts to sieve
matters that this Court must, in the interests of justice, determine
and those that it should not, even if it is the only court that has
jurisdiction in the matter.
As
discussed above, an application to this Court in terms of Rule 449 of
the High Court Rules as read with Rule 45 of the Rules is in the
exclusive jurisdiction of this Court by operation of the law of
practice and procedure. This is so because only this Court can
correct or vary its own order sought or given in error and in the
absence of a party adversely affected by the order.
Such
an application is sui
generis
in a number of respects.
Whilst
it is brought to set aside an extant order of the court, it in
essence seeks to bring before the court new facts or fresh legal
argument for consideration.
This
is so because the applicants have perforce to allege that a material
fact or law was not brought to the attention of the court and was
therefore not considered by it before it made the order that is under
challenge.
In
casu,
evidence of the “new” fact was sought to be led through the
founding affidavit in the form of the Government Notice that listed
the land in dispute.
The
new matter that the applicants wish the court to determine is
therefore the effect of this new evidence on the ownership of the
land in dispute.
Secondly,
the application is not between the same parties who were before the
court in the matter that resulted in the extant order. It is brought
by applicants who again perforce have to allege that they were not
before the court when the order was granted. It therefore introduces
not only a new matter but new parties.
These
two aspects distinguish the application in
casu
from
the application that was before the court in President
of the Senate and Another v Gonese and Another
CCZ 1/21, a case that Mr Madhuku
made reference to.
In
that case, leave of the court was not required even if the matter was
not listed in Rule 21 as a matter for which no leave is required.
The
court in that matter held that the application was a continuation of
the cause or application that had been before the court and involved
the same parties.
For
these reasons, contrary to the submissions by Mr Madhuku,
that case is not of any assistance to the applicants whose
circumstances are different.
The
practice of this Court therefore is that, where a litigant wishes to
bring a new and fresh cause and the matter is not listed in Rule 21
as one for which leave is not required, then leave must be sought
even if the matter is in the exclusive jurisdiction of the court. The
practice is based on and highlights the gate-keeping function of an
application for leave.
A
reading of the decided cases from this jurisdiction shows that the
prime concern of the court is that direct accessibility to the court
without leave should be limited to where it is in the interests of
justice.
The
concern is thus against opening the floodgates by using applications
for leave as a filtering mechanism.
“The
filtering mechanism for leave for direct access effectively prevents
abuse of the remedy. The rules requiring leave for direct access
ensure that the power of constitutional review is exercised by the
court in reviewable cases only.” (Per Malaba C.J. in Lytton
Investments (Private) Limited and Another
CCZ11/18.)
Disposition
Regarding
costs, the court did not see any justification for departing from its
general practice of not making an order of costs in favour of any of
the parties. None of the parties prayed for an order of costs.
It
is for the above reasons that the matter was struck off the roll with
no order as to costs.
GWAUNZA
DCJ: I
agree
GARWE
JCC: I
agree
GOWORA
JCC: I
agree
HLATSHWAYO
JCC: I
agree
PATEL
JCC: I
agree
UCHENA
AJCC: I
agree
