GARWE
JCC:
[1]
After hearing argument on a point in limine raised by the first and
third respondents, this Court issued the following order:
“1.
The preliminary point raised by the respondents is upheld.
2.
The matter is struck off the roll with costs.
3.
The reasons for this order are to follow in due course.”
[2]
What follow are the reasons for that order.
FACTUAL
BACKGROUND
[3]
The Presidential Powers (Temporary Measures) Act [Chapter 10:20]
(“The Presidential Powers Act”) provides as follows:
“2
Making of urgent regulations
(1)
When it appears to the President that -
(a)
a situation has arisen or is likely to arise which needs to be dealt
with urgently in the interests of defence, public safety, public
order, public morality, public health, the economic interests of
Zimbabwe or the general public interest; and
(b)
the situation cannot adequately be dealt with in terms of any other
law; and
(c)
because of the urgency, it is inexpedient to await the passage
through Parliament of an Act dealing with the situation; then,
subject to the Constitution and this Act, the President may make such
regulations as he considers will deal with the situation.
(2)
Regulations made in terms of subsection (1) may provide for any
matter or thing for which Parliament can make provision in an Act:
Provided that such regulations shall not provide for any of the
following matters or things -
(a)
Authorizing the withdrawal or issue of moneys from the Consolidated
Revenue Fund or prescribing the manner in which withdrawals may be
made therefrom; or
(b)
condoning unauthorized expenditure from the Consolidated Revenue
Fund; or
(c)
providing for any other matter or thing which the Constitution
requires to be provided for by, rather than in terms of, an Act; or
(d)
amending, adding to or repealing any of the provisions of the
Constitution.
3.…
(not relevant)
4.
Regulations to be laid before Parliament
(1)
Copies of all regulations made in terms of section two shall be laid
before Parliament no later than the eighth day on which Parliament
sits next after the regulations were made.
(2)
If Parliament resolves that any regulations that have been laid
before it in terms of subsection (1) should be amended or repealed,
the President shall forthwith amend or repeal the regulations
accordingly.
(3)
Where any regulations have been amended or repealed in terms of
subsection (2) in accordance with a resolution of Parliament, the
President shall not, within a period of six months thereafter, make
any further regulations in terms of section two that are identical in
substance to the regulations before they were so amended or repealed,
as the case may be.
5.
Effect of regulations
Regulations
made in terms of section two shall, to the extent of any
inconsistency, prevail over any other law to the contrary, apart from
regulations that have been made and are in force in terms of the
Emergency Powers Act [Chapter 11:04].”
[4]
Pursuant to the provisions of section 2 of the above Act, the
President of the Republic of Zimbabwe, in a supplement to the
Zimbabwe Government Gazette dated 31 October 2016, issued the
Presidential Powers (Temporary Measures) (Amendment of Reserve Bank
of Zimbabwe Act and Issue of Bond Notes, Regulations, 2016 (“the
Bond Notes Regulations”).
Sections
2 and 3 of the Regulations, contained in Statutory Instrument 133/16,
provide:
“2.
(1) The Reserve Bank of Zimbabwe Act [Chapter 22:15] (No.5 of 1999)
(“the principal Act”) is amended by the insertion in Part VI
('Banknotes and Coinage') of the following section after section
44A -
“44B
Legal tender of bond notes and coins
(1)
The Minister may by notice in a statutory instrument prescribe that a
tender of payment of bond notes and coins issued by the Bank that are
exchangeable at par value with any specified currency other than
Zimbabwean currency prescribed as legal tender for the purposes of
section 44A shall be legal tender in all transactions in Zimbabwe to
the same extent as that prescribed currency.
(2)
Section 42 shall apply to bond notes prescribed under subsection (2)
as they apply to banknotes.”
APPLICANT'S
CASE BEFORE THIS COURT
[5]
Following the publication of the above Regulations, the applicant
filed a court application which she said was made in terms of section
167(2)(d) of the Constitution of Zimbabwe as read with Rules 15 and
27 of the Constitutional Court Rules, 2016. She sought an order in
the following terms:
“1.
That the first respondent be and is hereby declared to have failed to
fulfil his constitutional obligation to obey section 134(a) of the
Constitution of Zimbabwe, 2013 by exercising Parliament's primary
law-making powers through his making of Statutory Instrument 133 of
2016.
2.
As a consequence arising from 1, that it be and is hereby declared
that the Presidential Powers (Temporary Measures) (Amendment of
Reserve Bank of Zimbabwe Act and Issue of Bond Notes) Regulations,
2016 (SI 133 of 2016) be and are hereby declared null and void and of
no force or effect, having arisen from 1st Respondent failure to
fulfil his constitutional obligation within the contemplation of
section 167(2) as read with section 2 of the Constitution of
Zimbabwe, 2013.
3.
That the 2nd Respondent be and is hereby declared to have failed to
fulfil its constitutional obligation to protect section 134(a) of the
Constitution of Zimbabwe, 2013 by allowing section 2(2) of the
Presidential Powers (Temporary Measures) Act (Chapter 10:20) to
remain on the statute books long after the enactment of the
Constitution of Zimbabwe, 2013.
4.
As a consequence arising from 2, that section 2(2) of the
Presidential Powers (Temporary Measures) Act (Chapter 10:20) to the
extent to which it permits the making of a statutory instrument that
amends an Act of Parliament be and is hereby declared null and void
and of no force or effect, having remained on the statute books from
2nd Respondent failure to fulfil its constitutional obligation within
the contemplation of section 167(2) as read with section 2 of the
Constitution of Zimbabwe, 2013 (sic).
5.
That the proposed introduction of bond notes by the Respondents be
and is hereby declared unconstitutional and therefore null and void
for arising from the failures by the 1st and 2nd Respondents to
fulfil their constitutional obligations as aforesaid (sic).
6.
That the Respondents (if they oppose this application) jointly and
severally pay the costs of this application the one paying the others
to be absolved.”
[6]
In her founding affidavit, the applicant avers that, in terms of
section 90 of the Constitution, the first respondent, as President,
has a constitutional obligation to uphold, defend, obey and respect
the Constitution as the law of the nation. Paragraph 10 of Schedule 6
to the Constitution provides that all existing laws continue in force
but must be construed in conformity with the Constitution. The law
therefore imposes a constitutional obligation on the President not to
invoke section 2(2) of the Presidential Powers Act which is clearly
inconsistent with the Constitution. He has a constitutional
obligation not to resort to section 2(2) to the extent that it
purports to empower him to amend an existing Act of Parliament. That
section fell away the moment section 134(a) of the Constitution
became law.
Section
134 of the Constitution provides that Parliament's primary law
making function cannot be delegated.
This
means a Statutory Instrument cannot purport to amend an Act of
Parliament.
The
President's constitutional obligation is to ensure that he does not
make statutory instruments that amend Acts of Parliament. Instead he
is obligated to initiate legislation to repeal such legislation.
[7]
In respect of Parliament, the applicant avers that the Bond Notes
Regulations have usurped Parliament's primary law making power.
Parliament
must not allow the President or any member of the executive to usurp
legislative powers.
Parliament
has therefore failed to fulfil its constitutional obligation in two
respects.
(i)
First, it ought not to have allowed section 2(2) of the Act to remain
on the statute books for more than three years after the promulgation
of the 2013 Constitution. Instead it should have repealed that
section.
(ii)
Secondly, it ought to have taken steps, within 24 hours of the
gazetting of the Bond Notes Regulations, to direct the President to
repeal them.
[8]
The applicant made it clear that this was not an application made in
terms of section 85(1) of the Constitution but rather one under
section 167(2).
She
submitted that it was not necessary, therefore, to allege a breach of
any of her fundamental rights.
Having
said so however, and in order to demonstrate how the failure by the
President and Parliament in upholding their constitutional
obligations is affecting her, she listed the rights violated as:
(a)
equal protection and benefit of the law – section 56(1);
(b)
private property rights – section 71(2); and
(c)
choosing and carrying on any profession, trade or occupation –
section 64.
OPPOSITION
BY FIRST AND THIRD RESPONDENTS
[9]
The third respondent filed opposing papers on behalf of both
respondents. He took a point in limine.
It
was this.
The
Act under which the President acted is still part of our law and the
President is duty bound, in the exercise of his duties, to make use
of it.
The
opinion by the applicant that the Act is constitutionally invalid
cannot be used to claim that the President has failed to discharge a
constitutional obligation.
In
fact by using an existing law the President is discharging his
constitutional obligation and in these circumstances one cannot
approach the court in terms of section 167(2).
If
the complaint were on the constitutionality of the Act, then the
applicant could only have approached this Court in terms of section
85(1) of the Constitution and allege a breach of one or other of her
rights.
[10]
The third respondent further stated that the validity of the Bond
Note Regulations is currently before Parliament. That institution has
the right to amend or repeal the said regulations.
Further,
in terms of section 9 of the Fifth Schedule to the Constitution,
Parliament may also apply to this Court for a declaration of
invalidity in respect of the Regulations.
Accordingly,
the matter is not ripe for constitutional determination as there
exists a process within the law for the determination of the fate of
the statutory instrument.
Lastly,
he submitted that since the applicant is not applying for redress of
any breach of her rights in terms of section 85(1), she does not have
the right to directly make an application to this Court but should
have made an application to the High Court which could have
adequately dealt with the matter.
OPPOSITION
BY THE SECOND RESPONDENT
[11]
In its opposing papers, Parliament, represented by its Speaker, has
submitted that section 117(1)(c), read together with section 134(a)
of the Constitution, allows Parliament to confer legislative powers
on another body or authority.
The
Speaker has denied that Parliament has failed to fulfil its
constitutional mandate since the statutory instrument in question is
undergoing scrutiny by its Legal Committee.
FOURTH
AND FIFTH RESPONDENTS OPPOSITION
[12]
In his opposing affidavit, the Governor of the Reserve Bank prays for
the dismissal of the application with costs on the higher scale. He
has stated as follows:
The
Bond Note Regulations were meant to fortify and underpin the existing
legal framework for the issuance of bond notes. That instrument was
promulgated by the President pursuant to the lawful authority given
to him by the Act, which Act remains part of our law as it has not
been repealed by the Constitution.
In
any event, para 10 of the Sixth Schedule to the Constitution provides
that all existing laws remain in force but must be construed in
conformity with the Constitution.
He
denies that the President has exercised primary law making power as
envisaged in section 134(a) of the Constitution.
ISSUES
FOR DETERMINATION
[13]
On the basis of the papers before this Court, the first issue that
arises for determination is whether the applicant has properly
approached this Court in terms of section 167(2)(d) of the
Constitution.
Should
that question be answered in the positive, the issue that will follow
is whether the President and Parliament have failed to fulfil their
constitutional obligations.
I
deal first with the preliminary point taken by the first and third
respondents.
WHETHER
THE APPLICATION IS PROPERLY BEFORE THE COURT
[14]
There is a presumption of validity in respect of all subsisting laws.
Until such laws are set aside, they have legal effect and must
therefore be complied with.
A
court cannot, generally speaking, make an order declaring an act
illegal if, at the time the act was performed, it was done in terms
of a valid law.
Once
an act is done in terms of a valid law that act is legal. The only
exception to this position is where the legislature, in clear and
unambiguous language, or by necessary implication, retrospectively
prohibits the doing of something that was legal at the time it was
performed, that is to say, where the law expressly states that
something that was not prohibited before the promulgation of the
retrospective law is illegal – Greatermans Stores (1979) (Pvt) Ltd
t/a Thomas Meikles Stores and Anor v The Minister of Public Service,
Labour and Social Welfare & Anor CCZ2/18, at p16 of the judgment.
[15]
This Court has on several occasions held that there is a presumption
of constitutionality of a law that has not been challenged for
alleged unconstitutionality.
The
court has further held that not only does an unchallenged law compel
full obedience but that even a law that is under challenge commands
the same level of obedience unless declared invalid.
[16]
In this regard, in In Re: Prosecutor General of Zimbabwe on his
Constitutional Independence and Protection from Direction and Control
CCZ13/17, this court remarked at p7 of the judgment:
“… it
is important to acknowledge the well-known canons that the
Constitution is the supreme law and that the rule of law is a
founding principle of our nation (section 3(b) of the Constitution).
The
quintessence of the rule of law is this and simply this, that where
there is a law, it must be complied with…”
14.1
The court further cited with approval the Supreme Court decision in
Econet Wireless (Pvt) Ltd v Minister of Public Service, Labour and
Social Welfare & Ors 2016 (1) ZLR 268 (S) where at p272 A-E, the
court remarked thus:
“It
is a basic principle of our law which needs no authority that all
subsisting laws are lawful and binding until such time as they have
been lawfully abrogated. If, however, any authority is required for
this proposition, one need not look further than Black on the
Construction and Interpretation of the Laws (1911) page 10 para 41,
where the learned author says:
'Every
act of the legislature is presumed to be valid and constitutional
until the contrary is shown. All doubts are solved in favour of the
validity of the Act. If it is fairly and reasonably open to more than
one construction that construction will be adopted which will
reconcile the statute with the constitution and avoid the consequence
of unconstitutionality.'
What
it means is that all questioned laws and administrative acts enjoy a
presumption of validity until declared otherwise by a competent
court.
Until
the declaration of nullity, they remain lawful and binding, bidding
obedience of all subjects of the law.
The
doctrine of obedience of the law until its lawful invalidation was
graphically put across by Lord Radcliffe in Smith v East Elloe Rural
District Council [1956] AC 736 at 769 when he observed that:
'An
Order, even if not made in good faith, is still an act capable of
legal consequences. It bears no brand of illegality on its forehead.
Unless the necessary procedures are taken at law to establish the
cause of invalidity and to get it quashed or otherwise upset, it will
remain as effective for its ostensible purpose as the most impeccable
of orders.'”
[17]
The Presidential Powers Act is still part of our law, no court having
declared it unconstitutional.
The
opinion expressed by the applicant that it is no longer valid law
following the coming into force of the new Constitution cannot be
correct.
The
Constitution itself has not said so.
To
the contrary, the Constitution provides, in paragraph 10 of Part 4 of
the Sixth Schedule, that all existing laws remain valid, but are to
be construed in conformity with the Constitution.
Implicit
also in the opinion of the applicant is the suggestion that it is the
constitutional obligation of the President to analyse all the laws
under which he purports to act in order to ascertain their compliance
with the Constitution.
Surely
that cannot be the correct legal position.
In
the absence of a specific provision in the Constitution invalidating
a law previously enacted, it cannot be the duty of a sitting
President to embark upon such an inquiry. That is a role for the
courts.
Section
134 of the Constitution does not impose such an obligation on the
President.
[18]
What is sought before this Court is a declaration in terms of section
167(3) of the Constitution that the President and Parliament have
both failed to fulfil obligations imposed on them by the
Constitution.
The
relief sought is predicated upon conduct of the President acting in
terms of an Act of Parliament which allows him to make regulations to
deal with urgent situations and which regulations have supremacy over
any other law to the contrary.
[19]
It is clear that the applicant should have sought, but did not do so,
a declaration that the Presidential Powers Act is unconstitutional.
However,
having come under section 167(2)(d) of the Constitution, that is not
the issue before the court.
Further
having proceeded in terms of section 167(2)(d), the question whether
section 2 of the Presidential Powers Act amounts to unlawful
delegation of Parliament's primary law-making function is not an
issue before the court.
[20]
I agree with learned counsel for the first and third respondents that
since, as it appears, the gravamen of the complaint by the applicant
is on the constitutional validity of section 2 of the Presidential
Powers Act, the applicant should have, in these circumstances,
approached this Court in terms of section 85(1)(a) of the
Constitution, alleging a violation of one or more of her
constitutional rights.
[21]
In Berry (Nee Ncube) & Anor v Chief Immigration Officer &
Anor 2016 (1) ZLR 38 (CC), the first applicant in that case
approached the court both in her own interest and that of her husband
seeking an order to the effect that her fundamental right to freedom
of movement and residence under section 66 of the Constitution had
been violated because the respondents, acting in terms of section 17
of the Immigration Act [Chapter 4:02] had refused to grant her
husband entry into and residence in Zimbabwe.
It
was common cause that the applicants had not sought to challenge the
constitutional validity of section 17 of the Immigration Act.
At
page 45G-H, this Court (per GWAUNZA JCC as she then was) remarked:
“The
applicants, therefore, take issue with the mere fact of the
respondents doing their job, in other words, the respondents actions
in properly applying an unchallenged law that falls under their
direct responsibility.”
And,
at p46C-D the court concluded:
“…,
one cannot impugn, on a constitutional basis 'conduct' that
constitutes a proper, lawful application of the law, without
challenging the constitutional validity of the same law, or actions
premised on a misinterpretation of it.”
[22]
The conclusion is therefore inescapable that the application is not
properly before this Court and that it stands to be struck off the
roll.
IN
ANY EVENT, EVEN ON THE MERITS, APPLICANT HAD NO CAUSA
[23]
Having concluded that the application is not properly before the
court that really should be the end of the matter. However, for the
sake of completeness and for the benefit of the parties, it is, in my
view, desirable that this Court deals with the question whether the
failure by the President to determine whether an existing law is
constitutionally valid is a sufficient basis for a declaration of
failure to fulfil a constitutional obligation.
[24]
Decided cases from across the Limpopo, with which I agree,
distinguish, on the one hand, obligations that are readily
ascertainable and those, on the other, which are not.
In
Doctors for Life International v Speaker of The National Assembly &
Ors 2006 (6) SA 416 (CC); 2006 (12) BCLR 1399 (CC), the South African
Constitutional Court stated at p435AD:
“It
seems to me therefore that a distinction should be drawn between
constitutional provisions that impose obligations that are readily
ascertainable and are unlikely to give rise to disputes, on the one
hand, and those provisions which impose the primary obligation on
Parliament to determine what is required of it, on the other.
In
the case of the former, a determination whether those obligations
have been fulfilled does not call upon a court to pronounce upon a
sensitive aspect of the separation of powers.
An
example of such a provision that comes to mind is a provision that
requires statutes to be passed by a specified majority. The criteria
set out are clear, and a failure to comply with them would lead to
invalidity…”
[25]
In Von Abo v Government of The Republic of South Africa 2009 (2) SA
526 (T), in defining a failure to fulfil a constitutional obligation,
the court stated thus:
“In
Doctors for Life, NGCOBO J, writing for the court, observed that the
word 'obligation' connotes a duty specifically imposed by the
Constitution on Parliament to perform specified conduct.
It
seems to me that by parity of reasoning the same consideration
applies to an 'obligation' relating to the President.
The
Constitution carefully apportions powers, duties and obligations to
organs of State and its functionaries. It imposed a duty on all who
exercise public powers to be responsible and accountable and to act
in accordance with the law. This implies that a claimant who seeks to
vindicate a constitutional right by impugning the conduct of a state
functionary, must identify the functionary and its impugned conduct
with reasonable precision.”
[26]
In Economic Freedom Fighters v Speaker of The National Assembly and
Ors; Democratic Alliance v Speaker of The National Assembly & Ors
2016 ZACC 11, the court stated:
“An
alleged breach of a constitutional obligation must relate to an
obligation that is specifically imposed on the President or
Parliament. An obligation shared with other organs of State will
always fail the section 167(4)(e) test…”
[27]
In light of the above, the view I take therefore is that the
President has no legal obligation to ascertain the validity of an
existing law and that, ultimately, the responsibility of determining
whether a law is valid or not is that of the courts unless the
Constitution specifically invalidates that law.
[28]
Indeed, in a recent decision in City of Harare v Tawanda Mukungurutse
& Ors SC46/18, the Supreme Court of Zimbabwe, whilst considering
the question when invalidity of existing legislation occurs following
a declaration of invalidity, cited with approval remarks by ACKERMANN
J in Ferreira v Levin; Vryenhoek v Powel 1996 (1) SA 984 (CC); 1996
(1) BCLR 1, that:
“It
is very seldom patent and in most cases is disputed, that
pre-constitutional laws are inconsistent with the provisions of the
constitution. It is one of this Court's functions to determine and
pronounce on the validity of laws, including Act(s) of Parliament…”
[29]
In the result, therefore, the conclusion is irresistible that unless
the Constitution makes specific provision to the contrary, neither
the President nor Parliament can be expected to undertake an inquiry
to determine which law is constitutional and which is not.
That
is clearly the role of the courts.
In
the present matter, what amounts to Parliament's primary law making
function is the subject of serious dispute, particularly given the
controls under the Presidential Powers Act that are exercised by
Parliament.
In
this situation there can be no talk of a failure to fulfil a
constitutional obligation.
COSTS
[30]
The general consideration in constitutional litigation is that the
promotion or advancement of constitutional justice should not be
hindered by litigants who are discouraged from pursuing
constitutional matters for fear of an order of costs being mulcted
against them.
Du
Plessis M, Penfold G & Brickhill J, in their text, Constitutional
Litigation (1st edn, Juta & Co. Ltd, Cape Town, 2013) outline the
reason underlying the general principle adopted by courts in South
Africa that constitutional matters are generally decided without
orders of costs. At page 129 they state as follows:
“The
treatment of costs is important in all litigation but it is
especially important in constitutional litigation. It is not in the
interests of advancing constitutional justice that persons should be
deterred from litigating to enforce and protect fundamental rights
(in the case of Bill of Rights issues) or to uphold the principles
and requirements of our foundational legal text (in litigation
relating to non-Bill of Rights issues) through fear of an adverse
costs order against them.”
[31]
In Motsepe v Commissioner of Inland Revenue 1997 (2) SA 898 (CC) at
para 30 the court stated as follows:
“In
my view one should be cautious in awarding costs against litigants
who seek to enforce their constitutional right against the State,
particularly where the unconstitutionality of a statutory provision
is attacked, lest such orders have an unduly inhibiting or 'chilling'
effect on other potential litigants in this category.”
[32]
However, inasmuch as it is generally undesirable to grant costs in
constitutional matters, one must always be mindful that the award of
costs is one within the discretion of the court unless otherwise
specified by legislation.
This
is further reinforced by the proviso to Rule 55(1) of our own
Constitutional Court Rules, 2016 which provides as follows:
“(1)
Generally no costs are awarded in a constitutional matter: Provided
that, in an appropriate case, the Court or the Judge, as the case may
be, may make such order of costs as it or he or she deems fit.” (my
emphasis)
[33]
In Constitutional Litigation, op cit, at page 130, the learned
authors state as follows;
“Any
person deciding whether or not to litigate will need to assess the
pros and cons of doing so. In this balancing exercise, the risk of a
costs order in the event that one is not ultimately successful may
act as a significant deterrent to bringing or defending litigation in
the first place. It is one thing to pay the fees of one's own legal
team, and quite another to take on the risk of also having to pay the
other side's costs in the event of losing the case.”
[34]
The court in Motsepe v Commissioner of Inland Revenue (supra) also
stated as follows;
“This
cautious approach cannot, however be allowed to develop into an
inflexible rule so that litigants are induced into believing that
they are free to challenge the constitutionality of statutory
provisions in this Court, no matter how spurious the grounds for
doing so may be or how remote the possibility that this Court will
grant them access. This can neither be in the interest of the
administration of justice nor fair to those who are forced to oppose
such attacks.”
[35]
Attention is also drawn to the recent decision of MALABA CJ in
Liberal Democrats & Ors v President of the Republic of Zimbabwe
E.D. Mnangagwa N.O. & Ors CCZ7/18 and, in particular pages 24-26
of the judgment.
[36]
It is the court's view that this is an appropriate case for an
order of costs.
As
correctly pointed out by the first and third respondents, it is
apparent that the applicant seeks to have section 2(2) of the
Presidential Powers (Temporary Measures) Act declared
unconstitutional.
That
is also made clear in paragraphs 2 and 4 of her draft order quoted
earlier in this judgment.
That
is not the approach she adopted.
Where
the constitutionality of subsidiary legislation is challenged, the
proper channel is to approach this Court by way of direct access in
terms of section 85(1) of the Constitution alleging that the
particular statute or its provisions violate one or more of a
person's fundamental rights.
[37]
It is one thing to allege that Parliament and the President have
failed to fulfil a constitutional obligation and quite another to
seek a declaratur that the conduct by either or the two is not in
line with one or more provisions of the Constitution.
In
the former instance, a litigant, by virtue of Rule 27(1) of the
Constitutional Court Rules as read with section 167(2)(d) of the
Constitution, may make a court application supported by an affidavit
setting out the constitutional obligation in question and what
Parliament or the President has failed to do in respect of such
obligation.
In
the latter instance however, the proper procedure would be to make an
application in terms of section 85(1) of the Constitution seeking an
order that such conduct be declared null and void for violating any
one or more of the fundamental rights provided for in the
Constitution.
[38]
The applicant clearly failed to follow the proper procedure before
bringing her case before the court.
The
defect was pointed out to her in the first and third respondents
opposing affidavit and in their heads of argument.
The
applicant had the opportunity to assess the pros and cons of
proceeding with the application despite the indication that it was
not properly before the court. She took a calculated risk. It was
highlighted to her at all times that the application was opposed and
that the respondents were seeking an order for costs upon its
failure.
[39]
Moreover, an application based on similar facts had been filed by the
applicant but had been dismissed by this Court in November 2016 on
the basis that the application was speculative as no bond notes had
been issued and the legal basis for their issuance had not, despite
public announcements, been disclosed.
About
three months after that dismissal, she filed the present application.
[40]
In all the circumstances, therefore, it is clear that an order for
costs against the applicant is in the interests of justice. The
principle that costs follow the event is therefore applicable.
[41]
For the above reasons, the preliminary point taken by the first and
third respondents was upheld and the application consequently struck
off the roll with costs.
CHIDYAUSIKU
CJ: I agree
MALABA
DCJ: I agree
GWAUNZA
JCC: I agree
HLATSHWAYO
JCC: I agree
PATEL
JCC: I agree
MAVANGIRA
JCC: I agree
GUVAVA
JCC: I agree
UCHENA
JCC: I agree
Hamunakwadi
& Nyandoro Law Chamber, applicant's legal practitioners
Civil
Division of The Attorney-General's Office, 1st & 3rd
respondents legal practitioners
Chihambakwe, Mutizwa & Partners,
second respondent's legal practitioners
G.N.
Mlotshwa & Company, 4th & 5th respondents legal practitioners
