AN
APPLICATION FOR AN ORDER FOR LEAVE FOR DIRECT ACCESS TO THE
CONSTITUTIONAL COURT
GOWORA
JCC
[1] This
is an application for leave for direct access to the Court brought in
terms of section 167(5)(a) of the Constitution as read with Rule 21
of the Rules of the Constitutional Court 2016. The applicants are a
group of persons residing on a piece of land over which the second
respondent claims ownership. They intend to approach the Court under
section 24 of the Constitutional Court Act, 2021 for the rescission
of a judgment of the Court issued under CCZ43/15.
BACKGROUND
FACTS
[2] The
applicants are residents on a piece of land described as a certain
piece of land situated in Hartley district, being Kingsdale of
Johannesburg, measuring 161,8238 hectares.
[3] In
2001 the State gazetted the land described above and, through that
process, compulsorily acquired it under the land reform programme. In
support, the applicants have attached to their papers an
Extraordinary Government Gazette dated 22 June 2001 confirming the
acquisition. The applicants contend that, consequently, title to the
land is vested in the Government of Zimbabwe.
[4] Further,
the applicants claim that they were allocated stands on the piece of
land under the programme. However, they have not produced any
documents to the Court to sustain their claim.
[5] The
applicants claim that, unbeknown to them, the first to ninth
respondents obtained an order by consent under CCZ43/15. The second
respondent was permitted in terms of that order to obtain necessary
permits have the land surveyed and to sell any stands to any other
party or parties. They allege that as a result of this, and contrary
to their wishes, they entered into agreements of sale in respect of
their individual stands. Thus, the second respondent erroneously
continues to hold itself as the owner of the piece of land to their
prejudice.
[6] The
parties are agreed that the following facts are common cause. In 2001
the piece of land described above was gazetted for acquisition under
the land reform programme. It is common cause that the Administrative
Court set aside the acquisition in 2003.
[7] On
2 October 2013, this Court set aside the acquisition of the piece of
land following its further gazetting in 2005. This order was followed
by an order obtained by consent under CCZ43/15, the causa
for the application in
casu.
This order, issued on 18 November 2015, was in the following terms:
“IT
IS ORDERED BY CONSENT THAT:
1.
Kingsdale Housing Cooperative Society Limited be and is hereby joined
to these proceedings as the second respondent.
2.
It is declared that the applicants 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 agreement of sale between first applicant and any other person as
of 26 February 2015 (the date of purported acquisition) remains 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 authorised 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 para 4.2
above, and the members of the second respondent and persons referred
to in para 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 into the order of the Administrative Court.
5.
Each party to bear its own costs.”
[8] It
is common cause that the applicants have entered into separate
agreements of sale in respect of the individual stands that each
applicant occupies. The applicants contend that the judgment issued
under CCZ43/15 should be set aside. They place reliance for this
contention on section 24 of the Constitutional Court Act [Chapter
7:22], (“the Act”). They allege that the judgment was granted in
their absence. They allege that the judgment was granted in error as
the land is State land following its acquisition in 2001. They
further allege that they were forced, by circumstances, into
purchasing from the second respondent the stands allocated to them
under the land reform programme pursuant to the judgment. They
contend that they have been and continue to be prejudiced by the
erroneous order in CCZ43/15.
[9] On
the premises stated above, the applicants approach the Court for
leave to have the judgment under CCZ43/15 rescinded. Rescission is
sought on the basis that the judgment was erroneously sought or
granted. The applicants aver that the land in question was State land
and remains State land under section 72(4)(a) of the Constitution due
to its listing in Schedule 7 of the former Constitution in 2005. The
parties erred in not bringing this fact to the attention of the Court
at the hearing. The applicants contend that the judgment is
unconstitutional as it is contrary to section 72(4)(a). They argue
that none of them was party to the consent order under CCZ43/15.
THE
REQUIREMENTS FOR LEAVE FOR DIRECT ACCESS
[10] The
Constitutional Court is a specialised court with jurisdiction to hear
only deserving cases. Direct access to the Court is an extraordinary
procedure granted in deserving cases that meet the requirements set
out in the rules of the Court. Rule 21(3) of the Rules of the
Constitutional Court 2016 requires that an applicant for leave for
direct access to the Court must show that it is in the interests of
justice for access to be granted by the Court. Thus, Rule 21(3)
provides as follows:
“(3)
An application in terms of sub rule (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.”
[11] Rule
21(8) provides:
“(8)
In determining whether or not it is in the interests 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.”
[12] In
Zimbabwe
Development Party & Anor v The President & Ors
2018 ZLR 485 (CC) at p492 MALABA CJ commented thus:
“In
order for direct access to be granted, the applicants had to show
that they had prospects of success in the main matter. In Transvaal
Agricultural Union v Minister of Land Affairs and Another
1996 (12) BCLR 1573, 1997 (2) SA 621 (CC) at para [46], the
Constitutional Court of South Africa said in part:
'[46]
The applicant has failed to establish that this is a case in which
the ordinary procedures ought not to have been followed. There are
important issues which are within the jurisdiction of the Supreme
Court and which need to be resolved by it before this Court is
approached for relief. As far as the other issues are concerned,
there is neither the urgency nor
the prospects of success necessary to justify direct access to this
Court.
The application for direct access must therefore be dismissed.'”
(my emphasis)
[13]
In
Bruce
and Another v Fleecytex Johannesburg CC and Others
1998
(2) SA 1143 (CC), 1998 (4) BCLR 415 (CC) at para [7], CHAKALSON P
remarked:
“[7]
Whilst
the prospects of success are clearly relevant to applications for
direct access to this Court; there are other considerations which are
at least of equal importance.
This Court is the highest Court on all constitutional matters.
The
correct approach in dealing with an application for an order of
direct access to the Court
is one that accepts the principle that all relevant factors required
to be taken into account must be made available for consideration.
The Court or Judge must consider all the relevant factors in deciding
the question whether the interests of justice would be served by an
order granting direct access to the Court. The weight
placed
on the different factors in the process of decision making will
depend on the circumstances of each case and the broader interests of
a society governed by the rule of law.”
(my emphasis)
[14] It
is common cause that the applicants are in occupation of individual
stands on the land, which is the subject of the dispute, under
agreements of sale concluded between them and the second respondent.
It is also common cause that the contracts of sale have not been
cancelled in respect of some of the applicants. The record shows that
the second respondent obtained a judgment for the eviction of the
first applicant from the stand. However, none of the applicants are
claiming a right of occupation through the agreements of sale.
Rather, their alleged right to occupation is premised on the
allegation that they were allocated stands under the land reform
programme.
[15] If
granted access, the applicants seek an order in the following terms:
“1.
That it be and is hereby ordered that the judgment by this Court in
CCZ 43/15 handed down as an order on 18 November 2015 is rescinded
for the reason that it was granted in error.
2.
That for the avoidance of doubt, and arising from the order in para
1, in the exercise of the Court's inherent powers under section 176
of the Constitution as read with section 175(6)(b) of the same
Constitution, it is declared that certain piece of land known as
Kingsdale of Johannesburg, in the district of Hartley measuring
161,8238 hectares is State land under section 72(4) of the
Constitution of Zimbabwe.
3.
The respondents (if they oppose this order) shall pay the costs of
this application jointly and severally, the one paying the others
being absolved.”
SUBMISSIONS
BEFORE THE COURT
Submissions
in relation to the two issues went as follows.
[16] Mr
Madhuku,
appearing for the applicants contended that the High Court Rules are
inapplicable in casu,
and that the matter may be brought to Court by way of section 24 of
the Act. To that end, he argued that there was no question of delay
in bringing the application for rescission as section 24 did not make
provision for a time frame for filing the application. He contended
further that there were no time limits placed on alleged violation of
the Constitution.
In
so far it related to the locus standi of the applicants, Mr Madhuku
argued that the applicants had an interest to protect. He further
contended that they were absent from the process when the judgment
was issued and have, therefore, the requisite
locus standi in judicio.
[17] Mr
Uriri
was of a contrary view. He argued that whilst section 24 restates the
substantive power of the Court, the procedural aspects are provided
for in section 26. In his view, section 24 restates the substantive
power of the Court. The procedural aspects of the exercise of that
power are set out in section 26 where the Chief Justice is empowered
to promulgate rules of court to provide for the procedure the Court
is to follow. He contended that the failure by the applicants to
adhere to the rules of the Court was fatal to the application. He
suggested that the application was in fact a nullity.
[18] Coming
to the question of locus standi, Mr Uriri
submitted that the applicants had not established on the papers that
they had locus
standi
to apply for the rescission of the judgment. They had not established
that they had an interest that required protection through the
setting aside of the judgment in question. He reiterated that
interest in the context of locus standi must be personal as relates
to the person seeking relief.
[19] Mr
Dracos,
on
the other hand made the following submissions. He argued that it was
not in the interests of justice for the application to be granted.
The applicants had become aware as early as July 2017 of the
existence of the judgment. The application was filed after a period
of four years and there was no attempt to explain the delay in
bringing it to Court. He contended that Rule 29 of the Rules of the
High Court applied in casu
and on the premises of the rule the applicants were not entitled to
the relief they were seeking.
There
were no submissions on the question of locus standi by the fourth
respondent.
I
propose to consider the two issues ad seriatim.
[20] In
Liziwe
Museredza & 385 Others v Minister of Agriculture, Lands Water &
Rural Resettlement & Ors
CCZ 11/21, the applicants approached the Court for substantially the
same relief as sought in the main application attached to this
application. In the matter above, they approached the Court under
Rule 449 of the High Court Rules 1971 (now repealed). The Court
considered the matter in terms of Rule 449 which provided in relevant
part:
“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.”
[21] In
that matter, the contention of the applicants was to the effect that
an application under Rule 449 did not require leave as provided for
in Rule 21 of the Constitutional Court Rules 2016. Writing for the
Court, MAKARAU JCC commented as follows at pp13-14 of the cyclostyled
judgment:
“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.…………………………………
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.”
[22] Pursuant
to that judgment, the applicants have filed an application for leave
for direct access. Undoubtedly, the applicants require the leave of
court to approach the Court for relief. The intended application for
rescission of judgment does not fall within the applications that are
exempted from leave in terms of Rule 21(1) of the rules of the
Constitutional Court. Rule 21(1) provides:
“(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 is 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.”
The
significance of Court Rules in the adjudication process
[23] The
law should be and the procedure for applying the law must work
efficiently, inexpensively and effectively. This principle of
fairness is provided for in the Constitution and the right of access
to the Court is a fundamental right. The Constitution of Zimbabwe
2013 has provided for access to the court in section 69(2) and (3)
for the adjudication of civil rights. It provides:
“69
Right to a fair hearing
(2)
In the determination of civil rights and obligations, every person
has a right to a fair, speedy and public hearing within a reasonable
time before an independent and impartial court, tribunal or other
forum established by law.
(3)
Every person has the right of access to the courts, or to some other
tribunal or forum established by law for the resolution of any
dispute.”
[24] However,
the right of access to courts does not give a litigant the licence to
unilaterally decide on the procedure for accessing the court. The
procedure applicable is as a consequence rooted in fairness and this
is concretised by the power of the Court to enact rules that
delineate procedural requirements. This Court has in a plethora of
authorities emphasised the obligation of litigants to adhere to the
law and adopt the process set out in rules. In Kombayi
v Berkout
1988 (1) ZLR 53, (S), at 56D-57A, the court in that matter emphasised
the obligation by litigants and their legal practitioners to observe
the rules of the respective courts wherein relief is sought. The
court said:
“Although
this court is reluctant to visit the
errors of a legal practitioner on his client, to whom no blame
attaches, so as to deprive him of a re-hearing, error on the part of
a legal practitioner is not by itself a sufficient reason for
condonation of a delay in all cases. As Steyn CJ observed in Saloojee
& Anor NNO v Minister of Community Development
1952
(2) SA 135 (A) at 141C:
'There
is a limit beyond which a litigant cannot escape the results of his
attorney's lack of diligence or the insufficiency of the
explanation tendered. To hold otherwise might have a disastrous
effect upon the observance of the rules of the Court. Considerations
ad
misericordium
should not be allowed to become an invitation to laxity.'
A
duty is cast upon a legal practitioner, who is instructed to
prosecute an appeal, to acquaint himself with the procedure
prescribed by the Rules of the Court to which a matter is being taken
on appeal. That no effort has been made to comply with the Rules of
Court in the instant case is further exemplified by the failure of
the applicant's attorney to satisfy the requirement of Rule 31(1)
of the Supreme Court Rules: that an application for extension of time
within which to appeal 'shall be accompanied by a copy of the
judgment against which it is sought to appeal.'
The
Notice of Appeal itself is defective, in that it does not comply with
the
mandatory
provisions of Rule 29, sub-rules (a), (c) and (e) which require: (i)
that the court by which the judgment appealed against was given be
stated; (ii) that there be some indication as to whether the whole or
part only of the judgment is appealed against; and (iii) that the
exact nature of the relief sought be stipulated. There is almost a
total disregard of the Rules.”
[25] It
is trite therefore that the rules form the backdrop of procedure, and
that this serves to buttress the rules of natural justice that there
be an equal playing field where every party is afforded a right to be
heard in their cause. See Metsole
v Chairman, Public Service Commission & Anor
1989 (3) ZLR 147 (S). The roles that the Rules play was explained in
Makaruse
v Hide & Skin Collectors (Pvt) Ltd
1996 (2) ZLR 60 (S), at p65D-F, as being:
“By
virtue of the power conferred on this court by Rule 4 to condone any
non-compliance with the rules, none of the provisions of the rules
are strictly peremptory. 'The rules are, however, there to regulate
the practice and procedure of the Court in general terms and strong
grounds would have to be advanced, in my view, to persuade a court to
act outside the powers provided for specifically in the Rules.' Per
Botha J (as he then was) in Moulded
Components v Coucourakis & Anor
1999
(2) SA 457 (W) at p462-3. Thus the inherent power to prevent abuse of
the machinery of the court is a power which has to be exercised with
great caution, and only in a clear case: Hudson
v Hudson supra
at 268. Non-compliance of the rules will only be condoned upon good
cause shown by the applicant. There must be a reasonable and
acceptable explanation for the failure to comply with the Rules, and
the applicant for condonation must also show reasonable prospects of
success. See General
Accident Insurance Co SA Ltd v Zampelli
1988 (4) SA 407 (C) at 411C-D.”
[26] Rules
of court are put in place to facilitate the expeditious and fair
dispatch of cases. The courts have an inherent power to regulate and
protect their processes. This was reiterated in Mukaddam
v Pioneer Foods (Pty) Ltd, Mukaddam v Pioneer Foods (Pty) Ltd
2013
(5) SA 89 (CC), at paras [28],[31], [32] and [34]. The Court made the
following observations:
“[28]
….Our Constitution guarantees everyone the right of access to
courts which are independent of other arms of government. But the
guarantee in section 34 of the Constitution does not include the
choice of procedure or forum in which access to courts is to be
exercised. This omission is in line with the recognition that courts
have an inherent power to protect and regulate their own process in
terms of section 173 of the Constitution, to which I shall turn in a
moment.
[31]
However, a
litigant who wishes to exercise the right of access to courts is
required to follow certain defined procedures to enable the court to
adjudicate a dispute. In the main these procedures are contained in
the rules of each court.
The Uniform Rules regulate form and process of the high courts. The
Supreme Court of Appeal and this court have their own rules. These
rules confer
procedural
rights on litigants and help in creating certainty in procedures to
be followed if relief of a particular kind is sought.
[32]
It
is important that the rules of courts are used as tools to facilitate
access to courts rather than hindering it. Hence rules are made for
courts and not that the courts are established for rules. Therefore,
the primary function of the rules of courts is the attainment of
justice.
But sometimes circumstances arise which are not provided for in the
rules. The proper course in those circumstances is to approach the
court itself for guidance. After all, in terms of section 173 each
superior court is the master of its process.
[42]
… The language of the section suggests that each court is
responsible and controls the process through which cases are
presented to it for adjudication. The reason for this is that a
court before which a case is brought is better placed to regulate and
manage the procedure to be followed in each case so as to achieve a
just outcome. For a proper adjudication to take place, it is not
unusual for the fact of a particular case to require a procedure
different from the one normally followed. When this happens it is the
court in which the case is instituted that decides whether a specific
procedure should be permitted.” (my emphasis)
[27] It
goes without saying that rules of court serve an important purpose.
They must not, and, cannot be disregarded unless the court has been
persuaded, on very strong grounds, to do so. This is why a litigant
who wishes to exercise the right to access the court is required to
follow certain and specified procedures. In this context, rules of
court not only ensure certainty of the processes of court
proceedings, the litigants are also provided with a fair playing
ground for the adjudication of disputes. It is fair to state that the
rules ensure that the interests of justice are served.
WHETHER
THE APPLICATION HAS PROSPECTS OF SUCCESS ON THE MERITS
[28] The
Court holds that it is not in the interests of justice that the
applicants be granted leave for direct access in this matter. The
view of the Court is that, upon considering the matter, the
applicants have not established that the application has prospects of
success on the merits. The reasons for so finding are on two bases.
The first is that the applicants have not made an application for the
rescission in terms of the rules that entitle them to apply for
rescission of the impugned judgment by the Court in the exercise of
its powers under the Act. They have, instead, purported to rely on
section 24 of the Constitutional Court Act, which provision does not
provide for such an application. The second, the more important
basis, is that the applicants have not established the requisite
locus
standi in judicio
to apply for rescission of the judgment.
[29] The
Court will proceed on the basis that this application is one in terms
of section 24 of the Constitutional Court Act 5/2021 (“the Act”),
which provides as follows:
“24
Correction, variation, and rescission of judgments or orders
(1)
The Court may, in addition to any other power it may have, on its
own initiative 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 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.”
[30]
In turn Section 26(1) of the Act provides as follows in relevant
part:
“26
Rules of Court
(1)
Subject to subsections (2) and (3), the Chief Justice, after
consultation with a
committee
appointed by him or her, may make rules relating to any of the
following matters —
(a)
the manner and form of procedure before the Court; and
(b)…,.
(c)…,.
(d)…,.
(e)…,.
(f)…,.
(g)…,.
(h)…,.
(i)
the time within which any requirement of the rules is to be complied
with and the extension of such time; and
(j)…,.
(l)…,.
(m)…,.
(n)…,.
(o)…,.
(p)…,.
(q)…,.
(r)…,.
(s)
generally to give effect to the jurisdiction conferred upon the Court
by any enactment;
and
(t)…,.
(2)
Rules shall have not effect until they have been approved by the
Minister and published in a statutory instrument.
(3)
The Constitutional Court Rules, 2016 published in Statutory
Instrument 61 of 2016, shall continue to be in force until they have
been repealed or amended.”
[31] In
casu,
the applicants contend that the judgment was not only granted in
error; additionally, it adversely affected their right to occupy the
stands as beneficiaries under the land reform programme. In terms of
section 24(1)(a) of the Act, the Court has the power to correct,
rescind or vary any judgment that was erroneously granted in the
absence of a party affected thereby. On a proper construction of the
provisions set out above, the Court's jurisdiction is invoked 'upon
the application of a party affected'. I do not understand the
provisions to mean that a party may apply to court absent reference
to a particular rule of court. Section 24 spells out the Court's
substantive power once seized with an application. Section 24 is not
the procedural route one takes to make an application. It gives the
Court the jurisdiction to entertain such an application. To enable a
court to determine the application, an applicant must place reliance
on the Rules of the Court promulgated to regulate access to that
court.
[32] The
need for the adherence to Rules is a requirement even where the
dispute sought to be adjudicated is rooted in constitutional law. In
Marx
Mupungu v Minister of Justice, Legal & Parliamentary Affairs &
Ors
CCZ
7/21, the Court observed:
“Additionally,
it is necessary to underscore the point that access to this Court or
any subordinate court under section 85 is subject to regulation by
rules of court. This is made explicitly clear by section 85(3) which
dictates that rules of every court must provide for the procedure to
be followed in cases where relief is sought under section 85(1). It
is also spelt out in section 167(5) of the Constitution vis-a-vis
direct access to the Constitutional Court.
One
cannot institute an action or application in the High Court, or any
other subordinate court, without due observance of and compliance
with the Rules of that court. The Rules inform a litigant 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.”
[33] Evidently,
contrary to the argument by the applicants, the procedural aspects of
approaching the Court find expression in section 26 which provides
for the promulgation of rules of Court to regulate the processes of
the Court. In subsection (1), provision is made for the manner and
form of procedure before the Court as well as the time within which
any requirement of the rules is to be complied with and the extension
of such time. It is trite that rules of court provide for the form,
manner and time frame for the bringing of litigation before a court.
This is because courts have inherent jurisdiction to control their
processes. Rescission of judgments is one of the procedures that
rules of court make specific provision for. The applicants cannot
seek a rescission merely on the premise of the power exercisable by
the Court to set aside the judgment in issue. The Court must be
requested to exercise its discretion as provided for in the rules.
That has not been done in this case.
[34] It
is a trite principle of the law of interpretation that statutory
provisions in an Act of Parliament must be construed as a whole as
opposed to individually. They must be read together. It stands to
reason therefore that while section 24 spells out the Court's power
to correct, vary or rescind its judgments or orders, the procedural
aspect of the exercise of that power can only be done in compliance
with section 26. The rules of the Court have to prescribe the
procedure for such exercise.
[35] In
terms of Rule 45 of the Rules of the Constitutional Court 2016, in
any matter not dealt with in terms of the rules, the practice and
procedure of the Court, shall follow as near as may be, the practice
and procedure of the Supreme Court, or where the rules of the Supreme
Court are silent, the High Court become the default rules. It is
trite that the rules of the Supreme Court do not provide for the
rescission, correction or variation of judgments but the High Court
rules so provide.
[36] The
High Court Rules, 2021, were promulgated on 23 July 2021. Rule 29
which provides for the variation and rescission of judgments reads:
“(1) The
court or a judge may, in addition to any other powers it or he or she
may have, on its own initiative or upon the application of any
affected party, correct, rescind or vary -
(a) an
order or judgment erroneously sought or erroneously granted in the
absence of any party affected thereby; or
(b) an
order or a judgment 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) an
order or judgment granted as a result of a mistake common to both
parties.
(2)
Any party desiring any relief under this rule may make a court
application on notice to all parties whose interests may be affected
by any variation sought, within one month after becoming aware of the
existence of the order or judgment.”
[37] Whilst
the Act makes provision for the invocation of its jurisdiction, the
rules provide for the procedure under which the Court exercises its
jurisdiction. The applicants have not however invoked the rules of
court for an order for the rescission of the impugned judgment. They
have sought reliance on section 24 of the Act. The Rules of the High
Court have prescribed the procedure to be followed and are apposite
in
casu.
The applicants have not made an application in terms of the rules of
court. I am not persuaded that the Act gives the applicant the right
to approach the court for redress. Section 24 spells out the power
that a court may exercise upon the application of a party. The rules
comprise procedural law and must form the premise of a litigant's
approach to an appropriate court. It is trite that courts insist on
parties compliance with the rules and that where this has not been
done or is impossible condonation for failure to adhere to the rules
be sought and obtained.
[38] Rule
449 in terms of which relief was sought in Liziwe
Museredza & Ors v Minister of Agriculture, Lands & Rural
Resettlement & Ors (supra)
is no longer in force. Reliance should have been placed on Rule 29 of
the High Court Rules 2021. Rule 29(2) requires that an application
under the rules be brought to Court within a month from the date that
the applicant has knowledge of the judgment.
[39] The
first applicant who has assumed a leading role in the litigation
surrounding the dispute which is the subject matter of this
application, has not stated in categorical terms when she became
aware of the judgment. However, there is on record an affidavit
deposed to by her on 27 July 2017 in which she makes reference to the
judgment sought to be set aside. This application was only filed on
25 August 2021, a period in excess of four years from when the record
reveals the applicants would be taken as having had knowledge of the
judgment. According to Rule 29(2) of the Rules of the High Court 2021
which were promulgated on 23 July 2021, the applicants are out of
time. Even if the matter were to be considered in terms of Rule 449
the applicants would still be out of Court. It cannot be gainsaid
that the applicants have not been vigilant in pursuing relief in
casu.
The application was not brought expeditiously. I am fortified in this
view by the remarks of GUBBAY CJ in Grantully
(Pvt) Ltd & Anor v UDC Ltd
2000 (1) ZLR 361, at p366 to the following effect:
“It
was said by the appellants that they only became aware that the
judgment had been erroneously granted when they received advice of
that fact on 25 July 1997, some five years and six months later. Such
length of time, whatever the reason thereof, is unreasonable. But
what made the appellants wholly undeserving of the Court's
indulgence was that after being advised that aggregate interest had
been awarded, they allowed a further ten weeks to pass before filing
their application. And even when informed by the respondent's legal
practitioners on 27 August 1997 that it was not accepted that the
judgment was in any way erroneous, it was five weeks before the
necessary relief was sought.
I
have, therefore, no hesitation in agreeing with the learned judge
that the bringing of the application amounted to an abuse of the
process of the Court and was not to be sanctioned.”
[40] I
believe that the remarks of the learned jurist are more than apposite
in casu.
At the very least, the appellants in Grantully
case (supra)
attempted to explain the delay. In the instant case, the applicants
have not found it necessary to advise the Court when they became
aware of the judgment. This becomes necessary since what was sought
is the Court's indulgence. In the exercise of its discretion, the
Court must weigh all the factors that require that an applicant act
expeditiously. Unfortunately the applicants have decided not to be
candid with the Court and take it into their confidence. The delay
under Rule 29 of the High Court Rules 2021 or 449 of the repealed
rules is inordinate. The delay, being obvious, condonation for their
failure to adhere to the rules ought to have been applied for. No
condonation was sought. They were clearly mistaken in taking that
position.
[41] The
applicants have failed to adhere to the rules of the Court. They have
been unable to bring the application timeously or in any event within
the time limits prescribed by Rule 29(2). In the absence of an order
of Court condoning the failure to abide by the rules means that the
applicants are non-suited. The court is of the view that in the
absence of condonation there is no valid application before the
Court. Therefore, there are no prospects of success on the merits due
to the failure to adhere to procedural precepts
in
casu.
I
turn to the second issue for determination, that of locus
standi in judicio.
[42] For
the Court to invoke its jurisdiction to exercise power granted under
section 24, the applicants must establish that they are parties
affected by the judgment. It cannot be set aside on a mere whim. The
applicants have to show that some right has been prejudiced by the
issuance of the judgment in question. Since they allege that the land
is State land, it is incumbent that they establish locus
standi in judicio
to invoke the jurisdiction of the Court to exercise its power in
their favour.
[43] “In
law, standing or locus
standi
is a condition that a party seeking a legal remedy must show that
they have by demonstrating to the court sufficient connection to and
harm from the law or action challenged to support that party's
participation in the case.”
[44] In
Sibanda
& Ors v The Apostolic Faith Mission of Portland Oregon (Southern
African Headquarters) Inc
SC49/18, HLATSHWAYO JA considered the principle of locus
standi
and stated the following:
“It
is trite that locus
standi
is the capacity of a party to bring a matter before a court of law.
The law is clear on the point that to establish locus
standi,
a party must show a direct and substantial interest in the matter.
See United
Watch & Diamond Company (Pty) Ltd & Ors v Disa Hotels Ltd &
Anor
1972 (4) SA 409 (C) at 415A-C and Matambanadzo
v Goven
SC23-04.
In
casu
it is common cause that the respondent is a branch of the parent
church. However, the respondent is endowed with the power to sue and
be sued in its own name. It is further common cause that the
respondent is under the leadership appointed by the parent church.
The Constitution of the respondent is approved by the mother church.
The first appellant has been in control of the respondent's assets
on the basis of being an overseer appointed by the mother church. The
main allegation a
quo
was that the appellants were no longer members of the respondent and
hence should cease to control the assets of the respondent.
The
respondent as a branch of the mother church, had an unfettered direct
interest in the matter in that the first appellant purported to act
on the respondent's behalf when he was on suspension. The first
appellant had been divested of the power to act on behalf of the
respondent. It is common cause that the first appellant was on
suspension when he caused the letter of 3 February 2012 to be
drafted. He purported to communicate to the mother church an
incorrect position that the respondent was also the author of the
letter in question. The respondent who had not authored the letter in
question surely has a direct interest in a matter where its previous
leader purports to act on its behalf without its authority.
Therefore, the respondent's locus
standi
in
the Court a
quo
cannot
be gainsaid.”
[45] It
is settled that the principle of locus
standi
is concerned with the relationship between the cause of action and
the relief sought. Thus, a party needs to show that they have a
direct, personal and substantial interest in the matter in
contention. In Zimbabwe
Stock Exchange v Zimbabwe Revenue Authority
SC56/07,
MALABA JA (as he then was) said:
“The
common law position on locus
standi in judicio
of a party instituting proceedings in a court of law is that to
justify participation in the action; the party must show that he or
she has a direct and substantial interest in the right which is the
subject matter of the proceedings and the relief sought.”
[46] The
above authorities speak to the legal position as pertains to locus
standi
generally. As this application is concerned with an alleged violation
of the Constitution, it is only appropriate that the Court considers
the issue of locus
standi
in the light of decided authority on constitutional matters.
[47] This
Court in the case of Mawarire
v R G Mugabe & Ors
CCZ 1/13, accepting the applicant's right to access the court
stated:
“Even
under the pre-2009 requirements, it appears to me that the applicant
is entitled to approach this Court for relief. Certainly, this Court
does not expect to appear before it only those who are dripping with
the blood of the actual infringement of their rights or those who are
shivering incoherently with the fear of the impending threat which
has actually engulfed them. This Court will entertain even those who
calmly perceive a looming infringement and issue a declaration or
appropriate order to stave the threat, more so under the liberal
post-2009 requirements.”
[48] This
decision was followed by a long line of authorities that established
a trend in which the Courts sought to broaden the principle that
locus
standi
should not be strictly construed in constitutional matters. To
otherwise and apply too strict a construction would result in
deserving cases failing to see the light of day further prejudicing
an applicant deserving protection in pursuit of a fundamental right
properly protected under the Constitution.
[49] The
position is settled that the new Constitution has expanded the locus
standi
of persons seeking to approach the Court for the enforcement of an
alleged breach of a fundamental right. Accordingly, in Meda
v Matsvimbo Sibanda & Ors
CCZ 10/16, MALABA CJ made the following pertinent remarks:
“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 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 the courts on questions of
violation of fundamental human rights and freedoms with minimal
technicalities.”
See
also the dicta
in Chirambwe
v Parliament of Zimbabwe & Ors
CCZ 4/20 and Gonese
& Anor v President of Zimbabwe & Ors
CCZ 10/18.
[50] The
applicants claim that they are beneficiaries to State land under the
land reform programme. While the acquisition of the land is provided
for in the Constitution, the right to occupy gazetted land is
provided for in the Gazetted Land (Consequential Provisions) Act
[Chapter
20:28].
Thus, any right of occupation on the part of the applicants must be
consistent with the rights set out in the relevant legislation, in
this instance, the Gazetted Lands Act. In addition, a person claiming
such right must show that he or she has lawful authority to occupy
the land claimed.
[51] Section
3(1) of the above Act reads:
“3
Occupation of Gazetted land without lawful authority
(1)
Subject to this section, no person may hold, use or occupy Gazetted
land without lawful authority.”
[52] What
is lawful authority? The Act sets out several categories of documents
under which lawful authority may be granted. The Act defines lawful
authority as follows:
“'lawful
authority' means —
(a)
an offer letter; or
(b)
a permit; or
(c)
a land settlement lease; and 'lawfully authorised' shall be
construed accordingly;
'offer
letter' means a letter issued by the acquiring authority to any
person that offers to allocate to that person any Gazetted land, or a
portion of Gazetted land, described in that letter;
'permit'
when used as a noun, means a permit issued by the State which
entitles any person to occupy and use resettlement land;
'resettlement
land' means land identified as resettlement land under the Rural
District Councils Act [Chapter
29:13].
(2)
Any word or expression to which a meaning has been assigned in the
Land Acquisition Act [Chapter
20:10]
shall have the same meaning when used in this Act.”
[53] In
addition, the Act provides for land settlement leases described in
the following terms:
“'land
settlement lease' means a lease of any Gazetted land, or a portion
of Gazetted land, issued by the State to any person, whether in terms
of the Rural Land Act [Chapter
20:18]
or the Agricultural Land Settlement Act [Chapter
20:01]
or otherwise;”
[54] The
applicants needed to establish a real and substantial interest in the
rescission of the judgment. They had to show that the judgment in
issue directly affected their rights, interests, or potential rights
or interests. They needed to show that the interests of justice
favoured a finding of locus
standi in judicio
in their favour. Alternatively, they needed to establish a connection
to and harm from the judgment sought to be rescinded. They did not.
[55] Apart
from a bald statement in the founding affidavit that the applicants
were beneficiaries under the land reform programme, no one has
attached any document as proof of the claim. To claim a right of
occupation to Gazetted land under the programme, a person must
exhibit any of the documents described as constituting lawful
authority. Neither the first applicant nor her cohorts have even
alluded to having such lawful authority. Instead, what is before the
Court are copies of agreements of sale between the applicants and the
second respondent. The agreements of sale are not the lawful
authority contemplated under the Act.
[56] Any
person claiming lawful authority to occupy or use State land must
produce an offer letter, permit or lease relating to the agricultural
land in question. See Taylor-Freeme
v The Senior Magistrate, Chinhoyi
CCZ 10/14;
Zinyemba
v The Minister of Lands & Rural Resettlement & Anor
CCZ
3/16.
[57] The
Court has already settled what constitutes lawful authority under the
Act. In Taylor-Freeme
vs The Senior Magistrate, Chinhoyi & Anor
(supra), the Court defined lawful authority as follows:
“'Lawful
authority' means an offer letter, a permit and a land settlement
lease. The documents attached to the defence outline are not offer
letters, permits or land settlement leases issued by the acquiring
authority. They do not constitute 'lawful authority' providing a
defence to the charge the applicant is facing.”
[58] The
Court is of the view that the applicants lack the necessary locus
standi
to bring an application for the rescission of the judgment in CCZ
43/15. They have failed to establish their claim to be beneficiaries
under the land reform programme with lawful authority to occupy the
land in question which they assert remains vested in the State. It
follows that they cannot claim to be parties affected by the judgment
that they seek to rescind within the meaning of section 24(1)(a) of
the Act.
[59] The
absence of locus
standi,
in this case, leaves the applicants without a paddle. It means that
the application they intend to bring in the main matter has no
prospects of success.
[60] In
the premises, for this additional reason, it is only appropriate that
the Court makes a finding that it is not in the interests of justice
for the applicants to be granted direct access to the Court.
DISPOSITION
[61] The
applicants have not adhered to the Rules of the Constitutional Court.
The application they brought to Court was invalid and contrary to the
adjectival law of our jurisdiction. Rule 29 required that an
application be made within a month after a litigant obtains knowledge
of the judgment. They completely ignored its provisions and made no
reference to the rule.
In
addition, the applicants have not established that they are parties
who were or were affected by the judgment impugned. They have not
shown any right that has been adversely affected by the judgment in
question. They have in effect no legal interest in the decision at
issue. Accordingly, they have no standing to have the judgment set
aside.
[62] The
absence of locus
standi
militates against their prospects of success. They have no right to
protect or enforce and as a consequence they cannot be granted leave.
The issue of standing allows the Court an opportunity to determine
whether a party is entitled to approach the Court for appropriate
relief. Where a party is disabled due to want of standing, it stands
to reason therefore that application for leave is still born. It has
no prospects of succeeding.
[63] Accordingly,
due to the above factors, the application is dismissed with no order
as to costs.
HLATSHWAYO
JCC: I
agree
PATEL
JCC: I
agree
Lovemore
Madhuku Lawyers,
legal practitioners for the applicants
Mudimu
Law Chambers,
legal practitioners for the 2nd
respondent
Honey
and Blackenberg,
legal practitioners for the 4th
respondent
No
appearance for the 1st
and 3rd
respondents
