IN
CHAMBERS
PATEL
JCC: This
is a chamber application for condonation and extension of time within
which to file an application for leave to note an appeal against the
decision of the Supreme Court under judgment number SC89/20.
The
instant application was made pursuant to Rule 35 of the
Constitutional Court Rules 2016. The applicant craves the grant of
his application, with no order as to costs.
Background
The
two parties involved in this matter are a formerly married couple in
terms of the Marriages Act [Chapter
5:11].
Following an irretrievable breakdown in their relationship, the
respondent sought a decree of divorce in the High Court. The order
sought in the court a
quo
also regulated the distribution of their perceived matrimonial
property. During the course of those proceedings, the applicant
contested the distribution of an immovable property known as house
number 114 Lomagundi Road, Harare. His chief argument was that there
was no direct contribution towards the purchase of the property by
the respondent and hence she was disentitled from any claim to the
property as part of their divorce proceeds.
This
proposition was countered by the respondent who insisted
that she had been the primary caregiver to their family and had
remitted the various monies she had earned to the applicant during
the subsistence of their marriage. The applicant's purported former
second wife also testified to the same effect on behalf of the
respondent. She submitted that the respondent had raised various
amounts of income that she submitted to the applicant during their
marriage.
In
the event, the court a
quo
found in favour of the respondent and granted her a fifty percent
share in the property.
Irked
by the High Court's determination, the applicant launched a
subsequent appeal to the Supreme Court.
From
the submitted grounds of appeal, the sole issue that arose for
determination was whether the court a
quo
had erred in awarding the respondent a fifty percent share in the
contested immovable property.
It
was submitted on behalf of the applicant that the court a
quo
had adopted a narrow construction of the principle of equality as the
respondent had not contributed towards the purchase of the immovable
property. It was contended that the judgment by the court
a quo
upset the established jurisprudence regarding the primary
considerations for equitable distribution of matrimonial property.
Per
contra,
the respondent submitted that the court a
quo
had exercised its wide discretion under section 7 of the Matrimonial
Causes Act [Chapter
5:13]
(“the Matrimonial Causes Act”). It was contended that the High
Court in arriving at its determination was guided by the Constitution
as well as established precedent. The respondent submitted that
taking into consideration the circumstances of the case, the court a
quo's
determination could not be faulted.
Once
seized with the matter, the Supreme Court proceeded to first correct
the order of the court a
quo
that had omitted to grant a decree of divorce before distributing the
parties matrimonial property. On the merits, it reaffirmed the
respondent's position that section 26(c) and (d) the Constitution,
as well as international law, mandated a fair and equitable
distribution of matrimonial property. The Supreme Court upheld the
court a
quo's
determination on the basis that the court a
quo
had properly exercised its discretion under the Matrimonial Causes
Act.
The
Supreme Court also noted that the applicant's moral turpitude was a
critical factor in the decision of the High Court. The applicant's
conduct in trying to frustrate the equitable distribution of
matrimonial property was held to justify the order granted by the
High Court.
Thus,
the appeal was held to be meritless and dismissed.
Thereafter,
the applicant failed to note an application for leave to appeal
against the Supreme Court's decision within the allotted timeframe
stipulated by the Constitutional Court Rules, 2016.
Based
on the foregoing, the applicant filed the instant application before
this Court on 22 March 2022.
The
judgment of the Supreme Court was handed down on 29 June 2020 and the
Rules of this Court provide fifteen days from the date of judgment to
apply for leave to leave to note an appeal against the judgment.
The
applicant was evidently barred from noting his application for leave
to appeal against the Supreme Court's decision and hence he has
filed the present application for condonation.
In
his founding papers filed of record, the applicant averred that his
application for condonation ought to be granted as the intended
application for leave to note an appeal enjoyed prospects of success.
It
was contended that the applicant enjoyed a right to petition the
Court under section 69(3) of the Constitution and, in the present
instance, such access hinged on the existence of a constitutional
matter in the subordinate court. He averred that the Supreme Court
overextended the import of the notion of “equality” when
interpreting the provisions of the Matrimonial Causes Act.
It
is on the basis of the foregoing that the applicant submitted that he
had a justiciable right to equality under section 56 of the
Constitution that ought to be protected by this Court.
He
averred that section 56(3) of the Constitution, in particular,
prohibited every person, including judicial officers, from
discriminating against litigants based on their culture.
He
asserted that the High Court's determination was primarily
influenced by his cultural practice of taking another spouse during
the subsistence of his marriage to the respondent.
The
applicant advanced the position that the Supreme Court consequently
failed to protect his right to equality. This constituted a flagrant
violation of his fundamental right which ought to be redressed by
this judicial forum.
Regarding
the extensive delay in applying for leave to note an appeal, the
applicant pleaded that he had limited financial liquidity to afford
legal consultation and was oblivious of the prescribed period to
access this Court.
He
also averred that the Covid-19 pandemic militated against the filing
of the present application due to onerous lockdown restrictions.
The
applicant conceded that the extent of the delay in filing the
application was inordinate but countered this concession by reasoning
that, at any rate, the respondent was not prejudiced by the delay due
to the peculiar circumstances of the matter.
The
application was strenuously opposed by the respondent.
She
averred that the Supreme Court was not seized with a constitutional
matter and did not determine any constitutional issues in rendering
its verdict. The respondent submitted that the draft grounds of
appeal filed by the applicant related to general points of law.
It
was contended that the judgement of the Supreme Court did not stray
from the established legal precepts governing the distribution of
matrimonial property in determining the rights of the parties.
The
application was deemed to be an abuse of court process due to the
obvious absence of any constitutional issue in the Supreme Court's
judgment.
Submissions
by Counsel
Ms
Majome,
appearing
on behalf of the applicant, conceded that there was an extensive
delay in filing the present application and that such delay was
inordinate. She countered her concession by arguing that the
applicant had been pondering his available remedies due to the
complexity of the matter. It was submitted that the applicant sought
legal advice from counsel, a process that extended the delay in
filing the present application.
When
it was pointed out that the founding affidavit on record contradicted
her submissions, counsel admitted that the applicant had not been
candid with the Court.
She
then
submitted
that the applicant's precarious financial position had prevented
him from engaging legal counsel timeously.
Upon
further inquisition by the Court, it was conceded that the
applicant's explanation for the delay was unreasonable.
Addressing
the Court on the balance of convenience between the parties, Ms
Majome
submitted that the respondent would not suffer any financial
prejudice if leave to appeal were to be granted. She insisted that
the filing of the matter was not predicated on the election of the
respondent to exercise her right to liquidate her fifty percent
holding in the disputed immovable property. It was advanced that
other measures could be employed to alleviate any possible prejudice
suffered by the respondent as a result of the petition to this Court.
To
buttress her submissions, Ms
Majome
submitted that the applicant would provide for the respondent's
financial needs whilst this Court dealt with the substance of the
parties dispute.
As
regards the existence of a constitutional matter, Ms
Majome
submitted that the Supreme Court amended the law by awarding the
respondent a fifty percent share in the property.
When
pressed on the exact constitutional issue determined a
quo,
counsel conceded that the Supreme Court did not explicitly deal with
any constitutional matter. Rather, it was the import of its
determination that raised a constitutional issue.
She
submitted that the court a
quo
legislated over and above what was provided for in the Matrimonial
Causes Act.
In
essence, it was argued that the Supreme Court failed to properly
apply the principles set out in the aforementioned Act.
Ms
Majome
submitted that the applicant was punished for conducting his marital
affairs in a polygamous manner. She indicated that the judgment
reprimanded the applicant for indulging in a potentially polygamous
marriage during his union with the respondent.
In
any event, Ms
Majome
was unable to pinpoint specific portions of the Supreme Court's
judgment that admonished the applicant's polygamous conduct.
In
a bid to lend credence to her submission on this aspect, she argued
that the issue was addressed in the proceedings before the High
Court. However, the High Court judgment was not made part of the
record before this Court.
Nonetheless,
Ms
Majome
persisted with her argument that the Supreme Court discriminated
against the applicant on the grounds of custom and culture and that
this raised a constitutional matter.
Per
contra,
Ms
Damiso
submitted that the applicant had conceded that the delay in filing
the instant application was inordinate and urged the Court to
disregard the reasons proffered in explaining the delay.
She
referred to correspondence on record between the parties that
highlighted their concurrence in implementing the order of the High
Court that had been upheld on appeal. It was submitted that the
applicant initially did not highlight any dissatisfaction or intent
to appeal against the Supreme Court's determination.
Thus,
Ms
Damiso
argued that the present proceedings were only prompted by the
respondent's election to sell and liquidate her fifty percent share
in the disputed property.
As
regards the balance of convenience, Ms
Damiso
highlighted that the respondent was advanced in age, well beyond 65,
and that the protracted legal dispute threatened her already
precarious financial position.
She
submitted that her client needed the judgment of the High Court to be
executed so that she could access the financial proceeds from the
sale of the immovable property.
Ms
Damiso
also noted that the applicant had not contested the respondent's
submissions through an answering affidavit and that therefore her
averments were to be deemed uncontested.
Ms
Damiso
vehemently rebutted the notion that the Supreme Court dealt with a
constitutional question in its judgment.
She
submitted that reference was made to section 26 of the Constitution
in its judgment to highlight that the Supreme Court was alive to the
application of the principle of equality in determining the rights of
the parties in terms of the Matrimonial Causes Act.
It
was contended at any rate that the Supreme Court's application of
the aforementioned section 26 was not an intended ground of appeal as
formulated in the draft notice of appeal. She argued that the
applicant's objection was against the application of the
Matrimonial Causes Act. Thus, the prospective appeal was doomed to
fail on the grounds advanced by the applicant.
It
was submitted that this Court could not exercise its discretion in a
non-constitutional matter. Ms
Damiso
concluded that the application amounted to an abuse of process due to
the absence of any prospects of success.
The
Governing Principles
The
relevant considerations in an application for condonation are well
established in this jurisdiction. The Court will primarily assess
these factors, although they are not limited or exhaustive, depending
on the facts of the matter at hand. They are as follows:
(i)
The extent of non-compliance with the Rules of the Court. See Zhuwaki
v The State
SC99/21
at p4.
(ii)
The explanation for non-compliance with the Rules of the Court. see
Chikanga
v The State
SC93/04
at p2; Zhuwaki
v The State
SC99/21
at p4.
(iii)
The balance of convenience. see Synohydro
Zimbabwe (Pvt) Ltd v Townsend Enterprises Pvt Ltd & Anor
SC27/19
at pp9-10.
(iv)
The prospects of success. see Prosecutor
General v Intratek Zimbabwe (Pvt) Ltd & Anor
SC59/19
at
p13; S
v Tengende and Ors
1981 ZLR 445 (S)
at
446H–447A;
Kereke
v Maramwidze & Anor
SC86/21
at p10; Undenge
v The State
SC23/21
at p5.
Extent
and explanation for non-compliance with the Rules
It
is a common cause in this matter that the delay in filing not only
the application for leave but also the instant application for
condonation is inordinate. The applicant concedes that there was a
protracted delay from the date judgement was delivered on 29 June
2020 by the Supreme Court to the lodging of the instant application
on 22 March 2022.
The
extent of the delay in vindicating the applicant's constitutional
rights falls just short of two full years, which by reasonable
standards is evidently unconscionable in the absence of compelling
reasons to the contrary.
The
explanation tendered by Ms
Majome
seeking the Court's indulgence is starkly at odds with the
applicant's averments in his founding affidavit. Upon reflection of
the Court's observation regarding this disparity, she conceded that
the applicant was not being candid in the papers filed of record.
In
his founding affidavit, he pleads financial impoverishment amongst a
variety of other reasons. This position was contradicted by the
submissions made by Ms
Majome
to the effect that the delay was occasioned by the complexity of the
legal issues involved and the briefing of external counsel for legal
advice.
Ms
Majome
attempted to absolve the applicant by passing the blame onto her
junior who was supposedly tasked with drafting the founding
affidavit.
It
is trite that, generally, a litigant cannot be absolved of the
alleged ineptitude of his or her chosen legal practitioners. See
Beitbridge
RDC v Russel Construction
1998
(2) ZLR 190 (S). The applicant's difficulty is compounded by having
appended his signature to the founding affidavit.
Certainly,
candour is the bare minimum in an application that beseeches this
Court to grant its indulgence for non-compliance with the Rules.
The
Supreme Court in Moroney
v Moroney
SC24/13
upheld
the position that a litigant's lack of candour fatally impairs his
argument. It was held as follows, at p7 of the judgment:
“In
Leader
Tread Zimbabwe (Pvt) Ltd v Smith
HH131-03 NDOU J at p7 of the cyclostyled judgment stated as follows:
'It
is trite that if a litigant gives false evidence, his story will be
discarded and the same adverse inferences may be drawn as if he had
not given evidence at all – See Tumahole
Bereng v R
(1949) AC 253 and South
African Law of Evidence
by LH Hoffman and DT Zeffert (3ed) at p472. If a litigant lies about
a particular incident, the court may infer that there is something
about it which he wishes to hide'.”
In
casu,
the
applicant's lack of probity regarding the circumstances resulting
in the inordinate delay to petition this Court fortifies the
respondent's case.
Ms
Damiso
submits that the letters exchanged by the parties highlight the fact
that the applicant at all material times was under legal
representation and that the delay was therefore not occasioned by any
lack of financial capacity.
When
this is tallied with the concoction of differing justifications
proffered by the applicant, it is abundantly evident that he is not
being candid with the Court.
Consequently,
he has not been able to provide a reasonable explanation for his
failure to impugn the Supreme Court's determination timeously.
Balance
of Convenience
A
determination of the balance of convenience is premised, in essence,
upon a consideration of the interests of justice.
The
Court is compelled to make a value judgment of the balance of
convenience that is informed by the circumstances of the parties in
the matter.
The
applicant, through his counsel, pledged to indemnify the respondent
for any financial loss occasioned by the possible adjudication of the
dispute by this Court. On the other hand, the respondent submits that
her status as an elderly person accentuates her need to have the
matter resolved expeditiously. She highlights her dire financial
straits as motivating her election to liquidate her fifty percent
share in the immovable property.
Generally
speaking, a court ought not to allow the interests of justice, which
has fairness at its core, to be trumped by issues of expediency: see
Nel
& Ors v The State
[2017]
ZAGPJHC 296. However, I am inhibited from finding in favour of the
applicant in this respect, given that he has also pleaded financial
impoverishment in his founding papers. Accordingly, to place the
respondent at the mercy of a party whose own financial situation is
shrouded in mystery would be contrary to the interests of justice in
this case.
Existence
of a constitutional matter
The
Constitutional Court is a specialised court whose jurisdiction is
limited to strictly constitutional matters, as outlined in section
167(1)(b) of the Constitution.
This
emphasis on the existence of a constitutional question is reinforced
in the rules that govern access to this Court. The relevant rules in
this regard are Rule 35, which governs applications for condonation
and extension of time, and Rule 32 which deals with the substance of
the prospective application for leave to note an appeal should the
Court accede to the request for condonation.
Rule
32(2) of the Constitutional Court Rules provides the following on the
right of appeal to this Court:
“(2)
A litigant who is aggrieved by the
decision of a subordinate court on a constitutional matter only,
and wishes to appeal against it to the Court, shall within fifteen
days of the decision, file with the Registrar an application for
leave to appeal and shall serve a copy of the application on the
other parties to the case in question, citing them as respondents.”
(My emphasis)
The
requirement of the existence of a constitutional matter as an
imperative is further highlighted by the succeeding Rule 32(3)
which mandates that an application for leave to appeal to this Court
must contain or have attached to it a statement setting out clearly
and concisely the constitutional matter raised in the decision sought
to be appealed against.
In
addition, the founding affidavit supporting the application must
verify the fact that the cause of action arises from a decision of
the subordinate court premised on a constitutional matter.
Therefore, it is axiomatic that where the subordinate court has not
determined a constitutional issue, a litigant has no right of appeal
to this Court.
Access
to the jurisdiction of this Court unavoidably hinges upon the
existence of this juridical fact.
It
is unarguably the sine
qua non
of any approach to the specialised forum of the Constitutional Court.
The
applicant's counsel pinpointed section 26(c) of the Constitution
which was referred to in the impugned judgment as establishing a
basis for petitioning this Court.
Ms
Majome
submitted that the Supreme Court violated the import of equality in
respect of the rights of the parties at the dissolution of their
marriage in applying the principles enunciated in the Matrimonial
Causes Act.
This
position was countered by Ms Damiso
who insisted that the Supreme Court disposed of the matter on a
non-constitutional basis. She cited the case of Chiite
& Ors v The Trustees of the Leonard Cheshire Homes Zimbabwe
Central Trust
2017
(1) ZLR 603 (CC),
to
support the contention that a prospective appeal to this Court ought
to be premised on a constitutional question that was determined by
the lower court. She pointed to the prospective grounds of appeal as
being devoid of any meaningful constitutional challenge.
It
is an established position in our jurisprudence that mere reference
to the Constitution by a subordinate court does not establish a
constitutional issue.
In
casu,
the application for condonation and the attached draft application
for leave fail to meet the essential requirement of a constitutional
matter as obligated by the Constitution and the Rules.
The
applicant's founding affidavit does not set out the constitutional
matter that was determined by the Supreme Court.
The
applicant seems keenly aware of this fact as evidenced by the poverty
of his flimsy reference to section 56 of the Constitution in his
papers in seeking to establish a basis for invoking the jurisdiction
of this Court.
Furthermore,
the attempt to latch onto section 26(c) of the Constitution in the
course of submissions by Ms
Majome
is irreconcilable with the applicant's pleadings.
The
founding affidavit and the draft application for leave are patently
devoid of any mention of the specific manner in which the Supreme
Court is alleged to have violated the rights protected under that
constitutional provision.
This
Court, in The
Cold Chain (Pvt) Ltd t/a Sea Harvest v Makoni
2017
(1) ZLR 14 (CC),
clarified
the parameters of a constitutional matter as follows:
“The
mere reference to the Constitution did not make what was said a
constitutional matter. Reference by the Supreme Court to section 176
of the Constitution was an obiter
dictum.
The Constitution was referred to after the ratio
decidendi
had
been arrived at and declared by the court. The effect of what the
Court said in relation to section 176 of the Constitution was that
its reasoning was not inconsistent with the provisions of that
section. That is different from saying the decision on the issues
before the court were based on the interpretation and application of
section 176 of the Constitution.
It
follows that where a subordinate court did not take a view of the
case that required it to interpret and apply a constitutional
provision to determine the issue raised, the matter does not pass for
a constitutional matter.
Application
for leave to appeal will be dismissed as the subordinate court will
have rested its decision on an independent non-constitutional
ground.”
(My emphasis)
The
above position was reiterated in Madyavanhu
v Saruchera & Ors
2019 (1) ZLR 434 (CC) at 438B,
wherein
the following was observed regarding the right of appeal to this
Court:
“A
person has a right to appeal against a decision of a subordinate
court on a constitutional matter only. A decision of a subordinate
court on a non-constitutional issue is unappealable because the Court
has no jurisdiction to review such a decision. The purpose of the
procedure of an application for leave to appeal provided for in Rule
32(2) of the Rules is to show that the Court has jurisdiction as
provided for in the Constitution to hear and determine the appeal. In
other words, the purpose of the procedure is to ensure that the
applicant has a right of appeal to the Court against the decision of
the subordinate court.”
From
the above-cited authorities, it is evident that an application for
leave to note an appeal against the determination of a lower court in
the Constitutional Court hinges upon the existence of a
constitutional matter.
The
present application for condonation and extension of time cannot be
granted as the prospective application for leave to appeal fails to
satisfy the threshold for accessing the jurisdiction of this Court.
The reference by the court a
quo
to the concept of equality enshrined in section 26(c) of the
Constitution was purely tangential and not in any way dispositive of
the main non-constitutional issues determined by that court.
Thus,
the absence of a constitutional matter critically undermines the
validity of the instant application.
Disposition
The
relevant factors that are assessed in condonation proceedings must be
considered cumulatively.
The
instant application fails to satisfy any of the evaluated
requirements for the Court to consider granting its indulgence. The
disingenuous explanation proffered by the applicant for the delay in
lodging the application in effect aggravates his non-compliance with
the Rules due to his lack of probity and candour regarding the
inordinate delay. This has the attendant effect of tipping the
balance of convenience in the respondent's favour.
In
any event, the most pertinent factor in the disposition of this
matter is the absence of a constitutional matter.
It
is evident that the Supreme Court did not determine any
constitutional issue in deciding the questions before it.
Consequently, the applicant has no discernible prospects of success
on appeal should leave to appeal against the judgment of that court
be granted.
Regarding
costs, Ms
Damiso
conceded that there was no grossly reprehensible conduct on the part
of the applicant and withdrew her initial prayer for costs on behalf
of the respondent. Ms
Majome
submitted that the general position in constitutional matters ought
to prevail.
I
fully agree and find no reason to depart from the usual position of
not awarding costs in constitutional litigation.
In
the result, it is ordered that the application be dismissed with no
order as to costs.
Jessie
Majome & Co,
applicant's legal practitioners
Atukwa
Attorneys,
respondent's legal practitioners
