[1] On
25 January 2022, the applicant filed an application seeking direct
access to this Court in terms of section 167(5)(a) of the
Constitution of Zimbabwe, 2013 (“the Constitution”) as read with
Rule 21(2) of the Constitutional Court Rules, 2016 (“the Rules). If
leave is granted, it is his intention to file an application in terms
of section 85(1) of the Constitution for the vindication of two of
the fundamental rights that he alleges were violated by a High Court
decision. The two fundamental rights in question are the right to
access the courts and the right to equal protection and the benefit
of the law respectively. The allegation made in the application is
that the common law remedy that permits execution of a judgment
pending appeal violates the Constitution.
FACTUAL
BACKGROUND
[2] The
respondent is a common law universitas
that is governed by its constitution. It is a church with various
stations throughout the country. The applicant is a former member of
the respondent's executive leadership structure.
[3] The
facts surrounding this dispute are mostly common cause. Over an
extended period of time, the respondent's executive, which included
the applicant, wrangled over the control of the respondent and its
assets. The dispute spilled into the courts, initially the High
Court. The High Court found in favour of the other members of the
executive and declared them as the duly authorised representatives of
the respondent. It also gave them the right to possess and control
the assets in dispute.
[4] The
applicant was aggrieved. He noted an appeal to the Supreme Court. On
28 May 2021, the Supreme Court rendered its judgment in which it
upheld the judgment of the High Court. The court determined that the
other members of the executive were the duly authorised
representatives of the respondent. The applicant was ordered to pay
costs. At the core of the dispute was the right to occupy Stand 696
New Ardlyn, Westgate, Harare. This property had previously been under
the stewardship of the applicant.
[5] Consequent
to the Supreme Court's decision, the applicant and his acolytes
voluntarily departed from Stand 696 New Ardlyn, Westgate, Harare.
However, on 11 October 2021, the applicant returned and unlawfully
appropriated the aforesaid premises from the respondent's elected
officials.
[6]
An application for a mandament
van spolie
was filed by the respondent under a certificate of urgency for the
ejection of the applicant from the premises. The application
succeeded. The High Court ordered that the applicant be ejected and
that the possession thereof be restored to the respondent's
executives. Aggrieved with the decision of the High Court, the
applicant appealed to the Supreme Court. In response, the respondent,
under HC6465/21, applied for leave to execute the judgment pending
the determination of the appeal.
[7] During
the hearing of the application for leave to execute the judgment
pending appeal, the applicant made an application for a referral to
this Court of a constitutional question on the basis of certain
constitutional issues that he alleged emanated from the matter. The
crux of his challenge was whether the common law remedy of execution
pending appeal was consistent with the Constitution.
[8] The
application was opposed by the respondent. It argued that the request
was frivolous and vexatious. It contended that there was no violation
of any constitutional provisions in the intended application for
relief before the High Court.
[9] On
13 January 2022, the High Court rendered its judgment on the
application for a referral of the matter to the Court. The court a
quo
refused the application. It ruled that it lacked merit. The court a
quo
reasoned further that there was nothing unconstitutional for a court
to order the execution of its own judgment pending appeal as the law
permitted this exercise of discretion on the part of the High Court.
It thereafter proceeded to determine the merits of the respondent's
application for execution pending appeal. The court a
quo
noted that the applicant had previously vacated the premises in
question in compliance with an order of court. However, he had
reclaimed control through violent means, and, as a consequence, the
noting of the appeal was meant to deny the respondent's
representatives access to the property in question whilst he
contested the right to control the assets of the respondent. It is
that determination which forms the basis of the present application
that is before the Court.
[10] In
casu,
the applicant seeks to challenge the determination by the High Court.
He avers that its decision was wrongful because his request was
neither frivolous nor vexatious. It is submitted on his behalf that
the prospective substantive application enjoys considerable prospects
of success.
[11] The
application is opposed. The respondent submits that the present
application is frivolous and vexatious. It avers that its effect is
meant to frustrate the effect of various judgments that have been
granted against the applicant.
[12] The
major part of the reasons for opposing the application constitute
legal argument which I will advert to later in the judgment.
APPLICANT'S
SUBMISSIONS BEFORE THIS COURT
[13] The
applicant advances the argument that once an appeal is before the
Supreme Court, the court a
quo
ceases to have jurisdiction over the matter. He contends that this is
the essence of section 162 of the Constitution as read with sections
168 and 169 thereof. It is contended on his behalf that the common
law rule of execution pending appeal runs contrary to the principle
of law that only the Supreme Court has power over its own rules and
orders.
[14] In
addition, the applicant argues that the established hierarchy of the
Courts is disrupted by the common law remedy, which enables the High
Court to determine a matter pending before the Supreme Court. He
submits that the High Court would, on that premise, be taking sides
in the appeal under the guise of determining the prospects of
success. The applicant posits that in that process, the right of
access to the appellate court is impinged upon by the interference of
the High Court. Despite the right of appeal against any determination
by the High Court, the applicant submits that there is no alternative
remedy available to him.
[15] Mr
Madhuku
submitted that the applicant's constitutional rights were violated
by the High Court's refusal to refer the constitutional question to
the Constitutional Court. Questioned by the Court as to whether the
applicant was challenging the procedural or substantive propriety of
the court a
quo's
decision, he submitted that there was no distinction between the two.
He asserted that the established jurisprudence of the Court merely
highlighted that once a wrong decision has been made, it can be
challenged both procedurally and substantively in a superior court.
According to him, the only permissible exception is a Supreme Court
decision due to its status as a final decision of the apex court in
non-constitutional matters.
[16] Mr
Madhuku
submitted further that the court a
quo
did not apply the established test under section 175(4) of the
Constitution to determine whether the application for referral was
frivolous or vexatious. He made reference to the judge a
quo's
alleged failure to explicitly state whether the application was
frivolous or vexatious as evidence of a wrong approach that
ultimately led to a wrong decision. It was contended that the
constitutional issue of the High Court's jurisdiction to determine
applications for leave to execute pending appeals was not addressed
and that the matter was neither frivolous nor vexatious.
[17] In
response to the Court's question as to whether there was an
adherence to the Rules in respect of the application filed before the
High Court, Mr
Madhuku
submitted that Rule 24(4) of the Constitutional Court Rules, 2016 did
not apply as there were no disputes of fact between the parties. He
contended further that the applicant's right to access under
section 69(3) of the Constitution was violated by the law, which
gives the High Court the power to determine applications for leave to
execute pending appeals. Mr
Madhuku
added that given that the Supreme Court becomes seized with a matter
upon the noting of an appeal, it is befitting that this Court decides
the issue of which court had jurisdiction over such an application.
[18] In
discourse with counsel, the Court noted that the High Court was not
disabled by any law from entertaining applications for leave to
execute pending an appeal. The Court further quizzed counsel on the
issue of an alternative remedy available to the applicant. Mr
Madhuku
conceded that the applicant could have sought leave to appeal against
the decision by the High Court. However, he submitted that the remedy
was not practical as the same arguments would be regurgitated in the
High Court and Supreme Court on appeal. Mr
Madhuku
countered by proposing that in the event the High Court's present
authority was held as being unconstitutional, the Court was at large
to utilise its just and equitable powers under section 175(6) of the
Constitution to ensure that the legislature is given adequate time to
address the lacuna
that would arise as a result of its determination in the applicant's
favour.
[19] Mr
Madhuku
argued that the respondent had not addressed the Court on whether or
not there was an infringement of the right of access to a court under
section 69(3) of the Constitution. He submitted that the question was
important as it brings into focus the issue as to whether the court a
quo's
determination rendered the appeal in the Supreme Court academic. Mr
Madhuku
reiterated that the applicant was challenging the authority of the
lower court to deal with a matter that was pending before the Supreme
Court. He reasoned that alternatively placing the application before
a different Judge in the High Court would suggest a concession that
the alternative remedy was readily accessible.
RESPONDENT'S
SUBMISSIONS
[20] Per
contra, Mr Mbuyisa
submitted that there was a pending matter in the Supreme Court on the
substance of the dispute between the parties. However, he abandoned
this line of argument after the Court pointed out that the question
of the jurisdiction of the High Court was not pending before the
Supreme Court. In addition to the above, counsel submitted that there
was an alternative remedy accessible to the applicant. He asserted
that the applicant's fears that the High Court would revisit its
earlier decision could have been allayed by a request to place the
matter before a different Judge. Thus, he reasoned that the applicant
ought to be disabled from challenging the judgment of the court a
quo
before the Constitutional Court.
[21]
On behalf of the respondent, counsel argued that the grant of the
present application would not be consonant with the interests of
justice. He submitted that both the High Court and the Supreme Court
have already decided the validity of the applicant's leadership
credentials within the respondent.
[22] In
addition to the above, the respondent reasoned that the application
for referral and leave to execute pending appeal were made in light
of an order for spoliation granted against the applicant. Counsel
submitted that the balance of convenience favours the preservation of
the status
quo ante
that existed before the applicant took matters into his own hands
after he had voluntarily vacated the premises before again depriving
the respondent's congregants of the same.
[23] The
respondent contended that the substantive application bears little,
if any, prospects of success on the merits. The contention made was
that the determination of an application for leave to execute pending
appeal by the High Court does not limit the jurisdiction of the
Supreme Court to properly determine the matter on appeal. In this
regard, Mr Mbuyisa
submitted that the applicant's right to access the Supreme Court
was not affected by the High Court's decision ordering the
execution of its own judgment pending appeal. In addition, he
contended that the hierarchy of the courts is not distorted by the
grant of an application for leave to execute. He stressed that the
rights under sections 56(1) and 69(3) of the Constitution are not
absolute.
[24] Counsel
argued strongly that the applicant had an obvious misapprehension of
the law in suggesting that the application by the High Court of
section 176 of the Constitution to regulate its processes violates
the aforesaid fundamental rights. He further submitted that the
present proceedings are part of the applicant's strategy to unduly
frustrate the respondent's administration of its operations and
assets.
[25] The
contention by the applicant that there is no alternative remedy was
also disputed. Counsel for the respondent suggested that the Supreme
Court is in a position to determine the substantive rights of the
parties irrespective of the order for execution pending the appeal.
The respondent contended that the applicant had refrained from
exposing the entire factual background of the dispute because it
highlighted his deplorable conduct.
[26] On
the question of the alleged infringement of section 69(3) of the
Constitution, Mr
Mbuyisa
submitted that the court a
quo's
determination did not constitute a diminution of the Supreme Court's
authority over the appeal lodged by the applicant. He argued that the
High Court considered as a factor the balance of convenience in such
applications when there was a need for it to regulate its own
processes. In addition, Mr
Mbuyisa
insisted that the court a
quo's
determination could only be challenged where a procedural
irregularity was evident.
APPLICATIONS
FOR DIRECT ACCESS UNDER RULE 21
[27] An
application for direct access to the Court is premised on the
provisions of section 167(5)(a) of the Constitution. The section
requires that the application be brought in terms of the rules of the
Court. Rule 21(2) is relevant. The principles governing applications
for direct access are contained in Rule 21(3) which reads as follows:
“(3) An
application in terms of subrule (2) shall be filed with the Registrar
and served on all parties with a direct or substantial interest in
the relief claimed and shall set out –
(a) the
grounds on which it is contended that it is in the interests of
justice that an order for direct access be granted; and
(b) the
nature of the relief sought and the grounds upon which such relief is
based; and
(c) whether
the matter can be dealt with by the Court without the hearing of oral
evidence or, if it cannot, how such evidence should be adduced and
any conflict of facts resolved.”
[28] The
importance of compliance with the rules of this Court in an
application for direct access to the Court was stressed in the case
of Liberal
Democrats & Ors v President of The Republic of Zimbabwe E.D.
Mnangagwa N.O. & Ors CCZ 7/18,
wherein
MALABA CJ advanced the following:
“An
application for direct access is regulated by the Rules. An
applicant has to satisfy all the requirements of the Rules.
The Court found that the applicants failed to comply with the Rules
in this regard. There
has to be actual compliance with the contents of the provisions of
the applicable rule. It is not a question of mere formality.
Direct access to the Constitutional Court is an extraordinary
procedure granted in deserving cases that meet the requirements
prescribed by the relevant rules of the Court.”
(my
emphasis)
[29] Section
167(5) of the Constitution provides that any person may bring a
constitutional matter before the court directly subject to the Rules
of the court. The jurisdiction of the court in considering an
application for leave for direct access under the section can only be
triggered when the court is satisfied that the matter is in the
interests of justice. Rule 21(8) sets out the factors that the court
may consider in determining the phrase “interests of justice”.
(See Mwoyounotsva
v Zimbabwe National Water Authority CCZ 17/20
at pp6–7, para 19). The rule reads as follows:
“In
determining whether or not it is in the interest of justice for a
matter to be brought directly to the Court, the Court or Judge may,
in addition to any other relevant consideration, take the following
into account —
(a) the
prospects of success if direct access is granted;
(b) whether
the applicant has any other remedy available to her;
(c) whether
are disputes of fact in the matter.”
See
also Chiwaridzo
v TM Supermarkets (Private) Limited & Ors
CCZ
19/20
at p5.
[30] The
Constitution limits the Court's jurisdiction and under section
167(2)(b), it is only empowered to preside over and determine
constitutional matters and issues connected with decisions on
constitutional matters. Thus, the exercise of its jurisdiction over
other matters that do not have the flavour of “a constitutional
matter” would be an illegality under the law. The court, therefore,
must ensure that only those matters that can pass muster as a
constitutional matter are placed before it. This has been referred to
as a sifting mechanism to protect the court from unwarranted matters
finding their way to the court's corridors. The special
jurisdiction of the court has been reaffirmed by a plethora of
authorities.
The
learned authors I.
Currie and J. De Waal,
in their book The
Bill of Rights Handbook 6th
Edition, (Cape Town: Juta & Company, 2013) at p128, state that:
“The
Constitutional Court is the highest court on all constitutional
matters. If constitutional matters could be brought directly to it as
a matter of course, the Constitutional Court could be called upon to
deal with disputed facts on which evidence might be necessary, to
decide constitutional issues which are not decisive of the litigation
and which might prove to be purely academic interest and to hear
cases without the benefit of the views of other courts having
constitutional jurisdiction. Moreover, according to the
Constitutional Court, it is not ordinarily in the interests of
justice for a court to sit as a court of first and last instance, in
which matters are decided without there being any possibility of
appealing against the decision.”
[31] Turning
to this jurisdiction, in the case of Denhere
v Denhere & Anor
CCZ
9/19 at
p12, this Court held that:
“The
underlying requirement is that the application ought to clearly
illustrate that it is in the interests of justice that an order for
direct access be granted. As was noted by the Court in the Lytton
Investments (Private) Limited case supra,
the filtering mechanism for leave for direct access effectively
prevents abuse of the remedy.”
[32] The
present application will therefore be assessed in light of the above
considerations. The aforementioned factors will be considered
cumulatively in order to ascertain whether or not it is in the
interests of justice to grant the applicant direct access to this
Court's jurisdiction.
[33] This
approach was reaffirmed in the case of Zimbabwe
Development Party & Anor v President of The Republic of Zimbabwe
& Ors
CCZ
3/18
at
p12 as follows:
“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.”
WHETHER
OR NOT THE APPLICATION TO CHALLENGE THE DISCRETION OF THE HIGH COURT
IS IN THE INTERESTS OF JUSTICE
[34] The
prospects of success in the intended substantive application
constitute an important and fundamental consideration that
principally informs the court's decision on whether or not to grant
direct access. In Mvududu
v Agricultural and Rural Development Authority (ARDA) & Anor
CCZ
10/21,
the
court highlighted the importance of assessing the prospects of
success as follows:
“One
of the factors for consideration by the court is whether or not the
application has prospects of success. In Lytton
Investments (Pvt) Ltd v Standard Chartered Bank Limited and Another
CCZ 11/18,
the court stated:
'The
court turns to determine the question whether the applicant has shown
that direct access to it is in the interests of justice. Two factors
have to be satisfied. The first is that the applicant must state
facts or grounds in the founding affidavit, the consideration of
which would lead to the finding that it is in the interests of
justice to have the constitutional matter placed before the court
directly, instead of it being heard and determined by a lower court
with concurrent jurisdiction. The second factor is that the applicant
must set out in the founding affidavit facts or grounds that show
that the main application has prospects of success should direct
access be granted.'”
[35] The
application is premised on an alleged violation of the applicant's
rights by the High Court. The jurisdiction of this Court is
restricted by the Constitution itself. As a consequence, the court is
disabled by law from adjudicating on matters that are not in keeping
with its jurisdictional competence.
[36] In
casu,
the
applicant's complaint on the determination handed down by the court
a
quo
in granting leave to execute relates to the constitutionality of the
remedy. He summarises the issues as being:
“Whether
or not the High Court's common law jurisdiction to order an
execution of its judgment pending an appeal already pending in the
Supreme Court:
Is
consistent with the hierarchy of courts provided for in section 162
of the Constitution of Zimbabwe 2013.
involving
as it does, a lower court determining the prospects of success of an
appeal already before a superior court, is consistent with the
mandatory duty of the courts to be impartial as provided for in
subsections 1 and 2 of section 164
of
the Constitution of Zimbabwe, 2013.
involving
as it does a lower court determining the prospects of success of an
appeal already before a superior court is consistent with the
fundament right of every person to a fair hearing enshrined in
section 69(2 as read with section 3(1)(b)of the Constitution of
Zimbabwe, 2013.
involving
as it does a lower court determining the prospects of success of an
appeal already before a superior court is consistent with the
fundamental right of every person to access to the courts enshrined
in section 69(3) as read with section 3(1)(b) of the Constitution of
Zimbabwe 2013.”
[37] The
applicant has challenged the inherent power of the High Court to
regulate its own processes, that is, to cause the suspension of or,
as the case may be, the enforcement of its own judgments pending an
appeal before the Supreme Court. In para 7 of the draft order sought
the applicant seeks an order declaring that it is the Supreme Court,
in the exercise of its inherent jurisdiction, that has the power to
regulate its processes and that it may, in exceptional cases, order
the execution of a judgment appealed against pending the
determination of an appeal before it. In my view the issue that
arises is how the Supreme Court assumes the power to order the
execution of a judgment that did not emanate from itself. It is
pertinent, therefore, to consider and examine the respective powers
of the High Court and the Supreme Court and the extent thereof
insofar as the execution of judgments pending an appeal is concerned.
THE
INHERENT JURISDICTION OF THE SUPERIOR COURTS
[38]
The Supreme Court and the High Court are both Superior Courts.
These courts have inherent power to regulate their processes in
respect of matters that come before them, subject to limitations
imposed on them by the common law or by statute.
[39] Even
though the Supreme Court is a superior court, it is a creature of
statute. Its jurisdiction and the ambit of its powers are governed by
the Constitution and the Supreme Court Act [Chapter
7:13].
Section 169(1) of the Constitution spells out the jurisdiction of the
Supreme Court. It provides as follows:
“169
Jurisdiction of Supreme Court
The
Supreme Court is the final court of appeal for Zimbabwe, except in
matters over which the Constitutional Court has jurisdiction.
Subject
to subsection (1), an Act of Parliament may confer additional
jurisdiction and powers on the Supreme Court.
An
Act of Parliament may provide for the exercise of jurisdiction by
the Supreme Court and for that purpose may confer the power to make
rules of court.
(4)
n/a”
[40] In
terms of sub-section (3) above, the jurisdiction of the Supreme Court
in civil appeals is set out in section 21 of the Supreme Court Act.
It provides as follows:
“21
Jurisdiction in appeals in civil cases
(1)
The Supreme Court shall have jurisdiction to hear and determine an
appeal in any civil case from the judgment of any court or tribunal
from which, in terms of any other enactment, an appeal lies to the
Supreme Court.
(2)
Unless provision to the contrary is made in any other enactment, the
Supreme Court shall hear and determine and shall exercise powers in
respect of an appeal referred to in subsection (1) in accordance with
this Act.”
[41] I
turn next to consider the jurisdictional ambit of the High Court.
Section
171 of the Constitution provides:
“170
High Court
(not
relevant)
171
Jurisdiction of High Court
(1)
The High Court —
(a) has
original jurisdiction over all civil and criminal matters throughout
Zimbabwe;
(b)
has jurisdiction to supervise magistrates courts and other
subordinate courts and to review their decisions;
(c)
may decide constitutional matters except those that only the
Constitutional Court may decide; and
(d)
has such appellate jurisdiction as may be conferred on it by an Act
of Parliament.
(2)
An Act of Parliament may provide for the exercise of jurisdiction by
the High Court and for the exercise of jurisdiction by the High Court
and for that purpose may confer the power to make rules of court.”
[42] The
clear distinction between the High Court and the Supreme Court is
evident from a reading of the provisions of the Constitution itself.
Whilst the High Court is said to be a court with original
jurisdiction over all civil and criminal matters throughout Zimbabwe,
the Supreme Court is, on the other hand, the highest court of appeal
on matters excluding constitutional matters. It is obvious,
therefore, that the jurisdiction of the Supreme Court is restricted
to that established by the Constitution itself. This, however, must
not be understood to mean that it is confined to the determination of
appeals only. Section 176 of the Constitution has confirmed the
common law principle that Superior Courts have inherent power to
regulate their own processes. That section provides as follows:
“176
Inherent powers of the Constitutional Court, the Supreme Court and
the High Court
The
Constitutional Court, the Supreme Court and the High Court have
inherent power to protect and regulate their own process and to
develop the common law or the customary law, taking into account the
interests of justice and the provisions of this Constitution.”
[43] The
applicant contends, rightly so in my view, that the Supreme Court has
inherent jurisdiction and the power to control its processes. It is a
jurisdiction that the court exercises when it is seized with a
process that is directly linked to matters that are pending before
it. The exercise of the inherent power to control its processes was
clarified by the court in Net
One Cellular (Pvt) Ltd v Net One Employees & Anor
2005
(1) ZLR 275 (S). At 280-282, His Lordship CHIDYAUSIKU CJ stated:
"The
first issue to be resolved is whether I have jurisdiction to
entertain this Chamber application. This application is not one that
involves original jurisdiction. It is ancillary to two appeals this
court is already seized with. Once this court is seized with a
matter, it has inherent jurisdiction to control its judgment. See
South
Cape Corporation v Engineering Management Services
1977
(3) SA 534 and the cases referred to in that case. The inherent
jurisdiction to control the court's judgment includes, in my view,
jurisdiction to control the court's process, that is, jurisdiction to
determine whether or not the execution of a judgment should be
permitted pending the hearing of an appeal. I will assume
jurisdiction in this case on that basis. I can also assume
jurisdiction in terms of section 25 of the Supreme Court Act [Chapter
7:13].
I shall revert to this proposition later. It is trite that at common
law, a party cannot execute a judgment appealed against: see South
Cape Corporation supra.
The party wishing to execute despite the appeal can, however,
approach the court a
quo,
if
it has such jurisdiction, for leave to execute despite the noting of
an appeal. In the present case, the employees simply sought execution
after registering the award without first seeking leave of the court
to do so. The employer sought, unsuccessfully, an order from the High
Court to stop the execution. The employees, after registering the
arbitrator's award with the High Court, should have applied for leave
to execute after the noting of an appeal.”
[44]
What emerges from the above is that the Supreme Court, in the
exercise of its inherent power to control its own processes, can
interfere in the process of the execution of a judgment on a matter
pending before it on appeal.
[45] The
power of the Supreme Court to have recourse to its inherent power
under the common law was confirmed in Universal
City Studios Inc & Ors v Network Video (Pty) Ltd
1986 (2) SA 734 (A), at 754G-H. The Appellate Division of South
Africa reaffirmed that the Supreme Court had the power to regulate
its own procedures. The court stated:
“There
is no doubt that the Supreme Court possesses an inherent reservoir of
power to regulate its procedures in the interests of the proper
administration of justice (see Stuart
v Ismail
1942
AD 327; Republikeinse
Publikasies (Edms) Bpk v Afrikaanse Pers Publikasies (Edms) Bpk
1972
(1) SA 773 (A) at 783A-G; also Ex
parte Millsite Investment Co (Pty) Ltd
1965
(2) SA 582 (T) H at 585-6; Moulded
Components and Rotomoulding South Africa (Pty) Ltd v Coucourakis and
Another
1979
(2) SA 457 (W) at 461F-462H). It is probably true that, as remarked
in the Cerebos
Food case
(at 173E), the Court does not have an inherent power to create
substantive law, but the dividing line between substantive and
adjectival law is not always an easy one to draw (cf
Minister of the Interior and Another v Harris and Others
1952
(4) SA 769 (A) at 781C-H; Botes
v Van Deventer 1966
(3) SA 182 (A) at 198H; Yew
Bon Tew v Kenderaan Bas Mara
[1982]
3 All ER 833 (PC) at 836B; Salmond Jurisprudence
11th
ed at 503-4; Paton
Jurisprudence
4th
ed para 127). Salmond (op
cit
at
504) states that:
'Substantive
law is concerned with the ends which the administration of justice
seeks; procedural law deals with the means and instruments by which
those ends are to be attained.'”
[46] The
applicant, however, contends that the power that inheres in the
Supreme Court to control its processes is wider than merely granting
a stay of execution and includes the discretion to determine an
application for leave to execute a judgment of the High Court where
an appeal has been filed. This power, contends the applicant, is
found in the provisions of section 176 of the Constitution.
[47] The
common rule of practice is that the noting of an appeal against a
judgment of the High Court automatically suspends the judgment and,
as a result, no execution against that judgment shall take place. Any
execution against the judgment is unlawful and of no legal force or
effect. The position on the execution of judgments pending appeal
under the common law was settled in Reid
& Another v Godart & Another
1938 A.D. 511, where DE
VILLIERS JA at 513 said:
"Now,
by the Roman-Dutch law the execution of all judgments is suspended
upon the noting of an appeal; that is to say, the judgment cannot be
carried out, and no effect can be given thereto, whether the judgment
be one for money (on which a writ can be issued and levy made) or for
any other thing or for any form of relief granted by the Court
appealed from. That being so, I see no reason why the Rule should be
confined to judgments on which a sheriff may levy execution. The
foundation of the common-law rule as to the suspension of a judgment
on the noting of an appeal, is to prevent irreparable damage from
being done to the intending appellant, whether such damage be done by
a levy under a writ, or by the execution of the judgment in any other
manner appropriate to the nature of the judgment appealed from".
The
learned Judge went on to hold -
"...
that irreparable damage might be done to the applicants if the
judgment were not suspended on the noting of the appeal, for the
estate of the testator might be distributed by an executor in terms
of the previous will. The damage would be as irreparable as in a case
where a levy is made under a writ".
[48] This
Court is not, however, seized with the issue of the stay of a
judgment pending appeal but rather with the execution of such
judgment upon application by the judgment creditor. The burning issue
is whether or not the power of the court, the High Court, that
granted the judgment has now been ousted by section 176 of the
Constitution. The seminal authority under Roman Dutch law, as to
which the court can determine such an application, is South
Cape Corporation (Pty) Ltd v Engineering Management Services (supra),
in which CORBETT JA said:
“Whatever
the true position may have been in the Dutch Courts, and more
particularly the Court of Holland (as to which see Ruby's
Cash Store (Pty) Ltd v Estate Marks and Another,
1961 (2) SA 118 (T) at pp.120-3), it is today the accepted common law
rule of practice in our Courts that generally the execution of a
judgment is automatically suspended upon the noting of an appeal,
with the result that, pending the appeal, the judgment cannot be
carried out and no effect can be given thereto, except with the leave
of the Court which granted the judgment. To obtain such leave the
party in whose favour the judgment as given must make special
application. (See generally Olifants
Tin "B" Syndicate v De Jager,
1912 AD 377 at p.481; Reid
and Another v Godart and Another,
1938 AD 511 at p.513; Gentiruco
A.G. v Firestone SA (Pty) Ltd,
1972 (1) SA 589 (AD) at p.667; Standard
Bank of SA Ltd v Stama (Pty) Ltd,
1975 (1) SA 730 (AD) at p.746).”
[49] The
authorities referred to above were concerned with and dealt with the
principle that a judgment creditor is entitled, at law, to apply for
leave to execute a judgment on appeal pending the determination of
that appeal. The question of which court has the jurisdiction to
consider and determine such an application or should do so had not
been settled. This was the issue that the court was faced with in
Hermannsburg
Mission v Sugar Industry Central Board
1981 (4) SA 717, at 726A-B. In that case, it was stated that:
“It
is quite clear that it is only the court granting the order appealed
against which has, at common law or in terms of the Rules, the power
to give leave to allow its judgment to be carried into effect pending
the decision of the appeal, and it follows that this Court has no
jurisdiction to grant any of the relief sought.”
[50] When
the above passage is viewed against the comments of the learned
former Chief Justice in Net
One Cellular (Pvt) Ltd v Net One Employees & Anor (supra),
it
must be accepted that the court that grants a judgment has the
jurisdiction to entertain and grant leave for its execution pending
appeal. While it cannot be denied that section 176 grants all
superior courts the inherent power to control their own processes, it
cannot be gainsaid that the exercise of that power must be judicious.
It is an exercise of discretion. In the formulation of the argument
by the applicant, it is contended that in considering an application
for leave to execute pending appeal, the High Court is forced to join
common cause with one or other of the litigants. Counsel referred to
this process as the court taking sides. I am unable to agree.
[51] An
application for leave to execute a judgment pending an appeal is
available because, by operation of the law, the noting of an appeal
automatically suspends the decision appealed against with the effect
that it cannot be carried into execution. However, if, despite the
appeal, the successful party wants to execute the judgment in the
interim, he has to seek the leave of the court that granted the
judgment. The application would be premised on the principle that the
court has an inherent power to control its own process.
[52] The
general rule is that a party who obtains an order against another is
entitled to execute it. It is trite at law that a successful litigant
should not be deprived of the fruits of a judgment obtained in his
favour, unless there are special circumstances or special grounds
that justify a stay of execution to be granted as aforesaid. The
court, therefore, retains an inherent power to manage that process
having regard to the applicable rules of procedure. What is required
for a litigant to persuade the court to exercise its discretion in
favour of granting a stay in the execution of the court's judgment
has been stated in a plethora of authorities. In
Mupini
v Makoni 1993
(1) ZLR 80 (S) at 83B-D, the court stated the position of the law
clearly thus:
“In
the exercise of a wide discretion, the court may, therefore, set
aside or suspend a writ of execution, or, for that matter, cancel the
grant of a provisional stay. It will act where real and substantial
justice so demands. The onus
rests
on the party seeking a stay to satisfy the court that special
circumstances exist. The general rule is that a party who has
obtained an order against another is entitled to execute upon it.
Such reasons against execution issuing can be more readily found
where, as in
casu,
the judgment is for ejectment or transfer of property for in such
instances the carrying of it into operation could render the
restitution of the original position difficult. See Cohen
v Cohen
(1)
1979 ZLR 184 (a) 187C; Santam
Investment Company Ltd v Preget
(2)
1981 ZLR 132 (G) at 134G-135B; Chibanda
v King
1983
(1) ZLR 116 (H) at 119C-H; Strime
v Strime
1983
(4) SA 850 (C) at 852A.”
See
also Humbe
v Maduna & Ors
SC 81/21.
THE
EXERCISE BY THE SUPERIOR COURTS OF THE POWER TO REGULATE THEIR
PROCESSES
[53] The
Court is being urged to find that as a result of the incidence of
section 176 under the Constitution, the High Court can no longer hear
and determine applications for leave to execute against judgments
emanating from that court in the event of appeals having been noted
against such judgments. According to the applicant, the common law
power to do so that used to inhere in the High Court has been ousted
by the Constitution and now reposes in the Supreme Court. Any
exercise of that power by the High Court, it is further argued, would
be against the spirit of section 176 and, consequently, illegal.
[54] From
the above authorities, it is evident that the High Court has the
power to regulate its own processes and that this includes the
ordering of the execution of its judgments pending appeal. It is
relief that is granted in special circumstances. The execution of a
judgment before it becomes final by reason of appeal is therefore
recognized. However, this highly exceptional relief must find itself
firmly founded upon good reasons for the exercise of this discretion
on the part of the court.
[55] The
principles that a court must have regard to in an application for a
stay of execution of a judgment are akin to those considered when
deciding whether or not to grant leave to execute against a judgment
pending appeal – see Nzara
v Tsanyau and Others
2014 (1) ZLR 674 (H); Old
Mutual Life Assurance Company (Pvt) Ltd v Makgatho
HH 39-07. They are:
“1. An
appellant has an absolute right to appeal and test the correctness of
the decision of the lower court before he or she is called upon to
satisfy the judgment appealed against.
2. Execution
of the judgment of the lower court before the determination of the
appeal will negate the absolute right that the appellant has and is
generally not permissible.
3.
Where, however, the appellant brings the appeal with no bona
fide
intention of testing the correctness of the decision of the lower
court, but is motivated by a desire to either buy time or harass the
successful party, the court, in its discretion, may allow the
successful party to execute the judgment notwithstanding the absolute
right to appeal resting in the appellant.
4. In
exercising its discretion, the court has regard to the considerations
suggested by CORBETT JA in South
Cape Corporations (Pty) Ltd v Engineering Management Services (Pty)
Ltd
1977 (3) SA 534 (A) at 545.
Where
the judgment sounds in money and the successful party offers
security de
restituendo
and the appellant has no prospects of success on appeal, the court
may exercise its discretion against the appellant's absolute right
to appeal.
An
application for leave to execute pending appeal cannot be determined
solely on the basis that the appellant has no prospects of success
on appeal, especially where the whole object of the appeal is
defeated if execution were to proceed (see Woodnov
Edwards and Another
1966 RLR 335).”
[56] Invariably,
the decision of whether or not to grant an application for leave to
execute turns on the relative strength or weakness of the appeal.
This necessarily entails the court that granted the judgment treading
the same path during the initial proceedings leading to the judgment
under appeal by the superior court. It also entails the court peeking
into an appeal that is pending before the appellate court and, in
some way, pronouncing a verdict on it. In
this exercise, it takes into account the following considerations:
the
potentiality of irreparable harm or prejudice being sustained by the
Appellant if leave is granted;
conversely,
the potentiality of irreparable harm or prejudice sustained by the
respondent on appeal if leave to execute is not granted;
the
prospects of success on appeal, including the question as to whether
the appeal is frivolous or vexatious or noted, not with the bona
fide
intention of reversing the judgment appealed against, but for some
other motive e.g. to gain time.
where
there is the possibility of irreparable harm to both parties, the
balance of hardship or convenience.
[57] In
invoking the above considerations, a deliberation on the protection
of the respective rights of the parties is also embarked on when
assessing the issue of irreparable harm and potential prejudice.
Given that the order is not granted for the mere asking and, further,
that it is granted after an assessment of pertinent considerations,
it becomes apparent that those safeguards are put in place to protect
the rights of both parties that are constitutionally guaranteed as
prejudice may befall either party. See Amalgamated
Rural Teachers Union of Zimbabwe & Anor v ZANU PF & Anor
HMA
37-18.
[58] As
is evident from the foregoing, the application to execute a judgment
pending appeal is premised on the principle that the court exercises
its inherent power to control its process in order to give effect to
the overriding principle that the court must ensure that its
processes result in achieving real and substantial justice: See
Santam
Insurance Company Ltd v Paget
1981
ZLR 132, at p134–135.
[59] In
my view, the above dicta
apply
forcefully in the present matter. The application of the remedy for
leave to execute pending appeal forms part of the High Court's
authority to regulate its own processes. It is not equivalent to a
usurpation of the functions of the Supreme Court. This is so because
in assessing
the prospects of success on appeal, the court is tasked with
assessing whether the applicant has established an arguable case
justifying that execution should be carried out notwithstanding the
pending appeal.
The automatic stay of execution upon noting of appeal, as a rule of
practice, is not a firm rule of law but a long-established practice
regarded as generally binding, subject to the court's discretion.
[60] At
the core or pith of the inquiry relating to an application of this
kind is the duty of the court to determine what is just and
equitable. In this endeavour the court has to assess the prospects of
success of the appeal. In assessing the prospects of success in the
upper court, the court has to consider whether the appellant has got
an arguable case or whether it, the appeal, is manifestly a
predictable failure. This process cannot in any way be said to be a
violation of the applicant's right to a fair hearing. On the other
hand, it constitutes the exercise by the court of its discretion in
controlling its own process and ensuring that no abuse of court
processes ensues. Indeed, an assessment of prospects of success
cannot be termed a violation of the applicant's right of access to
the Supreme Court as, where an appeal is noted out of time, and the
justice of the case demands, an order staying execution is always
granted if circumstances require that a stay should be granted on the
basis of real and substantial justice.
[61] The
courts, as confirmed by section 176, have the inherent jurisdiction
to control their own processes. Section 176 in point of fact
reaffirms this common law power. Apart from the expression that the
courts have inherent power to control their own processes, the powers
are not specified, nor are the processes set out. An ambiguity then
ensues when the exercise of discretionary power by one court is
alleged to be an infringement of the power of another court.
[62] What
are inherent powers and from whence does a court get such power?
The word 'inherent' is an adjective and is very wide in itself.
In the Merriam-Webster Dictionary, it is defined as – “involved
in the constitution or essential character of something, belonging by
nature or habit, or intrinsic”. It has been defined variously as
meaning existing in and inseparable from something as a permanent, a
permanent essential or characteristic attribute or quality, an
essential element, something intrinsic or essential. In legal terms
it may be defined as vested in or attached to a person or office as a
right of privilege.
[63] Thus,
the inherent jurisdiction of superior courts or their inherent powers
are those powers which are inalienable from courts. It therefore
stands to reason that inherent powers are an integral part of the
self-created general jurisdiction at common law and may be exercised
by a court to do full and complete justice between the parties before
it.
[64] The
principle of the inherent jurisdiction of superior courts was
discussed by LORD DIPLOCK in
Bremer Vulkan v South India Shipping (H.I.)
[1981] A.C. 909, at 977D-H, wherein he stated as follows:
“The
High Court's power to dismiss a pending action for want of
prosecution is but an instance of a general power to control its own
processes so as to prevent its being used to achieve injustice. Such
a power is inherent in its constitutional function as a court of
justice.……………..
So,
it would stultify the constitutional role of the High Court as a
court of justice if it were not armed with power to prevent its
process being misused in such a way as to diminish its capability of
arriving at a just decision of the dispute. The power to dismiss a
pending action for want of prosecution in cases where to allow the
action to continue would involve a substantial risk that that justice
could not be done is thus properly described as an 'inherent power'
the exercise of which is within the 'inherent jurisdiction' of
the High Court. It would, I think, be conducive to legal clarity if
the use of these two expressions were confined to the doing by the
court of such acts which it needs must have power to do in order to
maintain its character as a court of justice.”
[65] I
would venture to suggest
that the exercise of inherent jurisdiction is a broad doctrine of the
English law allowing a court to control its own processes and to
control the procedures before it. The power stems not from any
particular statute or legislation, but is rather an integral part of
the constitution of the court itself. These are powers invested in a
court to control the proceedings brought before it. Thus, the court
may use its power to ensure convenience and fairness in legal
proceedings. It may utilize this power to stop abuse of processes or
vexatious litigation.
[66] On
a proper construction of the law I do not envisage a scenario arising
out of one court's power under section 176 undermining the power of
another court under the same provision. The applicant has not placed
before the court any credible argument that would lead to a finding
that the inherent powers of the Supreme Court are being hijacked by
the High Court when it determines applications for leave to execute a
judgment pending an appeal. Any determination in this regard would
still be liable to be appealed against to the Supreme Court. It is
correct, as contended by the applicant, that once it renders its
judgment, the High Court becomes functus
officio,
but notwithstanding this scenario, I am of the view that it retains
its inherent power over the judgment under those circumstances that I
set out below.
[67] That
the Supreme Court enjoys an inherent jurisdiction to control its
processes is beyond dispute. In view of the fact that both the High
Court and the Supreme Court enjoy this inherent power it is necessary
to examine in what context the Supreme Court can, if it can,
entertain an application for leave to execute a judgment pending an
appeal before it.
[68] It
is evident that the applicant wishes to read into section 176 an
absolute power on the part of the Supreme Court to entertain
applications for leave to execute judgments pending appeal.
Notwithstanding the sentiments expressed above, it is, however,
evident that the Supreme Court can entertain such an application
where the circumstances of the case demand, and that allow it to do
so. Each case can only be determined according to the prevailing
circumstances and it would not be in accordance with the tenets of
justice for this court to delineate what those situations may entail.
Suffice it to say that in the exercise of its inherent power and in
order not to allow an injustice, the Supreme Court may, and can
entertain an application for leave to execute a judgment pending
appeal. This would accord with the tenets of justice and would be a
proper exercise of the inherent jurisdiction of the Supreme Court in
controlling its processes.
[69] In
this instance, the applicant has not pointed to the court any
provision that would imbue the Supreme Court with any other power
over its proceedings except as is evident from the Constitution, the
common law and its enabling Act. The Supreme Court cannot order the
execution of a judgment that is not its own. That is the realm of the
High Court in regulating its own process and ensuring that frivolous
appeals are dealt with. The Supreme Court cannot act outside the law.
It is a creature of statute and must exercise such jurisdiction as
the law has imbued it with. I do not, from my reading of section 176,
discern the power to order the execution of a judgment that is not
its own except in the situations adverted to above.
[70] In
addition to the above, I cannot envisage a process that is more
prejudicial to the appellant than the Supreme Court entertaining an
application for leave to execute a judgment pending an appeal that is
before it. Whilst the High Court would be obliged to consider the
prospects of success of the appeal, the Supreme Court would be placed
in the unenviable position not to predetermine the merits of the
appeal itself.
[71]
The position is no different in South Africa. In Moch
v Nedtravel (Pty) Ltd t/a American Express Travel Services
1996 (3) SA 1 (A), the court made the following remarks:
“The
short answer is that the Court's 'inherent reservoir of power to
regulate its procedures in the interests of the proper administration
of justice' (per Corbett JA in Universal
City Studios Inc and Others v Network Video (Pty) Ltd
1986 (2) SA 734 (A) at 754G), does not extend to the assumption of
jurisdiction not conferred upon it by statute. As explained in R
v F Milne and Erleigh (6) 1951
(1) SA 1 (A) at 5 in
fin;'
'(this)
Court was created by the South Africa Act and its jurisdiction is to
be ascertained from the provisions of that Act as amended from time
to time and from any other relevant statutory enactment'.
Nowadays
its jurisdiction derives from the Supreme Court Act and other
statutes but the position remains basically the same. (Sefatsa
and Others v Attorney-General, Transvaal, and Another
1989 (1) SA 821 (A) at 833E-834F; S
v Malinde and Others
1990 (1) SA 57 (A) at 67A-B.) The Court's inherent power is in any
event reserved for extraordinary cases where grave injustice cannot
otherwise be prevented (Enyati
Colliery Ltd and Another v Alleson
1922
AD 24 at 32; Krygkor
H Pensioenfonds v Smith
1993 (3) SA 459 (A) at 469G-I).”
[72] The
above dictum
was, however, qualified in Numsa
v Fry's Metals (Pty) Ltd
2005 (5) SA 433 (SCA), where at 444-445 the court opined as follows:
“[23]
It is true that in Moch
v Nedtravel (Pty) Ltd t/a American Express Travel Service,
Hefer JA said that the jurisdiction of the Appellate Division
'derives from the Supreme Court Act and other statutes'. This
conformed with the interim Constitution, which was then in force.
This Court does not have original jurisdiction: its jurisdiction
derives from the Constitution. It is also correct that at common law
a Court has no automatic jurisdiction to hear an appeal from another
court: 'An appeal can only lie by virtue of some statutory
provision.' Yet ch 8 of the Constitution superseded both the
common-law and the interim Constitution. It subsumed the common law
powers of this Court, and not only conferred jurisdiction in
constitutional matters on it, but constituted it the highest Court of
Appeal in all matters except constitutional matters. It did so in
unqualified terms, and those terms are now the source of this Court's
jurisdiction. They must, we consider, be given their full effect in
interpreting the provisions of the LRA.”
[73] Thus,
in the exercise of the court's discretionary power, frivolous
appeals can be handled by allowing a lower court to decide whether a
ruling should be enforced while an appeal is pending. It does not
involve a constitutional matter or inquiry. The dispute can be
resolved without invoking the Constitution. The issue raised as to
which court can determine such an application does not involve the
interpretation, the protection or the enforcement of the
Constitution.
WHETHER
THE APPLICANT HAS ESTABLISHED VIOLATIONS OF HIS FUNDAMENTAL RIGHTS
[74] The
applicant argues that the application of the common law remedy
violated his constitutional rights under section 56(1) and section
69(3) of the Constitution. He posits that his request for a
constitutional referral was neither frivolous nor vexatious.
[75] Section
56(1) of the Constitution provides that all persons are equal before
the law and have the right to equal protection and benefit of the
law. This Court has had occasion to consider the import of the
provision in the case of Nkomo
v Minister of Local Government, Rural & Urban Development &
Ors
CCZ
6/16.
Ziyambi
JCC posited the following:
“The
right guaranteed under section 56(1) is that of equality of all
persons before the law and the right to receive the same protection
and benefit afforded by the law to persons in a similar position. It
envisages a law which provides equal protection and benefit for the
persons affected by it. It includes the right not to be subjected to
treatment to which others in a similar position are not subjected. In
order to found his reliance on this provision the applicant must show
that by virtue of the application of a law he has been the recipient
of unequal treatment or protection that is to say that certain
persons have been afforded some protection or benefit by a law, which
protection or benefit he has not been afforded; or that persons in
the same (or similar) position as himself have been treated in a
manner different from the treatment meted out to him and that he is
entitled to the same or equal treatment as those persons.”
[76] Herein,
the applicant merely raises bald allegations of his unequal
treatment. The basis of the alleged violation of his right arises
from the election of the court a
quo
to deny his request for referral of the matter to this Court. It is
the court a
quo's
determination of his request as frivolous and vexatious that he
founds the claim under section 56(1) of the supreme law. However, he
fails to lay out any material facts to give credence to the
allegation that the court a
quo
discriminated against him in applying the law. He has not shown any
differentiation in treatment between him and any other party by the
manner in which the court dealt with the matter's application for
referral to the Court. He has further not shown how the refusal by
the court denied him the benefit of the law.
[77] The
case of Nkomo
(supra)
is unequivocal on the consequences following upon the failure of an
applicant to demonstrate the unequal treatment that he has been
subjected to by the court a
quo.
The Court made the following remarks at para. 11:
“Clearly
the guarantee provided by section 56(1) is that of equality under the
law. The applicant has made no allegation of unequal treatment or
differentiation. He
has not shown that he was denied protection of the law while others
in his position have been afforded such protection.
He has presented the Court with no evidence that he has been denied
equal protection and benefit of the law… In
short, the applicant has come nowhere near to establishing that his
right enshrined in section 56(1) of the Constitution has been
infringed. He is therefore not entitled to a remedy.”
(my
emphasis)
[78] Further
to the above, and more critically, the applicant has not challenged
the validity of the exercise of the discretion by the High Court in
casu.
In
terms of section 175(4) of the Constitution, the relevant court may
refuse the request for referral by the parties if it considers such
an application to be frivolous or vexatious. It is apparent that the
presiding judicial officer is endowed with limited discretion in the
matter. The applicant does not challenge the substance of the court a
quo's
exercise of its discretion under 175(4) of the Constitution. The
court found the application to be frivolous and vexatious. It rightly
dismissed the application.
[79] The
import of the term frivolous was considered in the case of Williams
& Anor v Msipha NO
2010
(2) ZLR 552 (S) by MALABA DCJ (as he then was) who stated the
following:
“In
S
v Cooper & Ors 1977 (3) SA 475 (T)
at
476D, Boshoff J said that the word 'frivolous' in its ordinary
and natural meaning connotes an action or legal proceeding
characterised by lack of seriousness as in the case of one which is
manifestly insufficient. The raising of the question for referral to
the Supreme Court under section 24(2) of the Constitution would have
to be found on the facts to have been obviously lacking in
seriousness, unsustainable, manifestly groundless or utterly hopeless
and without foundation in the facts on which it was purportedly
based.”
See
also Martin
v Attorney General & Anor
1993
(1) ZLR 153 (S) at p157.
[80] If
due regard is had to the full background of the matter, it is evident
that the application for referral was not made in good faith. The
applicant's action in forcibly entering upon the premises and
depriving the respondent's representatives of possession of the
premises was the sole reason for the institution of the spoliation
proceedings in the High Court. He resorted to self-help and sought
the assistance of the court to unduly frustrate the respondent from
effectively enforcing the judgment of the Supreme Court in which his
dispute with the respondent's executives was settled.
[81] By
seeking a referral before the hearing of the application for leave to
execute, as rightly alleged by the respondent, the applicant sought
to buy more time to vex the respondent and further his cause in the
dispute regarding ownership of the church premises. In short, the
dismissal of his referral application was in no way a violation of
section 56(1) of the Constitution. In my view, this argument lacks
merit and cannot be sustained.
[82] In
casu,
the High Court stated as follows:
“The
back-drop against which the applicant seeks execution has been
articulated by the applicant. The applicant's incentive in seeking
enforcement rests in not only having won their litigation on
spoliation but, it is also against the backdrop of having won the
Supreme Court matter in the church's leadership wrangle. The
applicant also seeks enforcement expeditiously against the backdrop
of the respondent having left the church only to return by force to
take over the premises. The respondent, on the other hand, believing
as he does that his congregants are in the majority, seeks to delay
the enforcement of that judgment on the basis that the court erred.
Generalised arguments that deliberately skirt the context of each
case in which execution is sought cannot therefore be a basis for
creating an imagined constitutional crisis. Materially, there is
therefore nothing inherently unconstitutional in a court ordering
execution of its judgment where it firmly believes that the appeal
has been lodged to simply buy time. Allowing a lower court to
determine whether a judgment should be enforced pending an appeal is
a way of dealing with frivolous appeals.”
[83] As
stated in Old
Mutual Life Assurance Company (Private) Limited v L. Makgatho
HH
39-07:
“Where,
however, the appellant brings the appeal with no bona
fide
intention of testing the correctness of the decision of the lower
court but is motivated by a desire to either buy time or to harass
the successful party, the court, in its discretion, may allow the
successful party to execute the judgment notwithstanding the absolute
right to appeal vesting in the appellant.”
[84] As
regards the alleged unconstitutional exercise of its discretionary
power by a court ordering execution in a matter which is on appeal in
a higher court, it is clear that the law provides a constitutional
right of appeal that is available to the unsuccessful party, whether
it is the plaintiff or the defendant. Even though there is a
presumption that the trial court's decision is correct, a litigant
still has the opportunity to have the lower court's decision
upturned on appeal. The implication of this is that where execution
has been carried out pursuant to the judgment of the lower court, the
judgment of the appeal court would become a pointless victory,
especially where, as a result of execution against the judgment, the
judgment debtor suffers irretrievable prejudice or injury. The law
is, therefore, cognisant of the need for the Court of Appeal to
protect not only the res
but also to ensure that its judgment is not rendered nugatory upon
being delivered. An appeal against the order granting leave to
execute would by operation of law suspend its execution. In this way,
the court preserves the res
and, at the same time, protects its judgment from being rendered
nugatory. This constitutes part of the inherent power to control the
court's processes.
[85] On
a proper reading of the Constitution, it cannot be said that the
power to control the execution of a judgment that vests in the High
Court has been ousted by the incidence of section 176 of the
Constitution. I am certain that such a construction would be reading
into the provision a legal position that is unsustainable at law.
Section 176 confirms the inherent jurisdiction of the superior courts
and does not in any express or implied manner detract from the powers
of the respective courts.
[86] In
addition, the applicant also alleges that his right to a fair trial
under section 69(3) was violated by the court a
quo.
He stresses that the determination of the application for execution
pending appeal effectively pre-empts the Supreme Court's decision.
He argues that his right of access to the Supreme Court is militated
against by the court a
quo's
decision.
[87] The
full import of section 69 of the Constitution was considered recently
in the case of Sadiqi
v Muteswa
CCZ
14/21
on
p9.
PATEL
JCC succinctly summarised the aforesaid section as follows:
“Section
69 of the Constitution enshrines and protects the right to a fair
hearing. It guarantees that the courts are open to every person.
However, this is subject to the rules put in place to regulate court
proceedings and bring order to the justice delivery system. When the
dirty hands doctrine is applied to refuse to entertain a litigant who
is in violation of a court order, he is not being denied the right to
a fair hearing. This is actually a measure that is necessary to
preserve the dignity and the authority of the courts so that the
citizenry at large can continue to enjoy the right to a fair hearing.
It is an essential part of the inherent power that the courts enjoy
so as to protect their own processes.”
[88] In
Mugwambi
v Ajanta Properties (Pvt) Ltd
HH 77/08, MAKARAU JP (as she then was), stated as follows on p2 of
the cyclostyled judgment:
“The
power to grant stay of execution pending appeal is a common law
exercise of the power that inheres in this court. In this regard, the
court enjoys the discretion of the widest kind. The main guiding
principle for the court in determining such applications is to grant
stay where real and substantial justice requires such a stay or
conversely, where injustice would otherwise be done. (See Standard
Bank of South Africa Ltd and Another v Malefane and Another:
In
re Malefane v Standard Bank of South Africa Ltd and Another
2007
(4) SA 461 (Tk); Road
Accident Fund v Strydom
2001
(1) SA 292 (C); Williams
v Carrick
1938
TPD 147 at 162; Strime
v Strime
1983 (4) SA 850 (C); and Graham
v Graham
1950 (1) SA 655 (T)).”
[89] By
parity of reasoning, the High Court's common law jurisdiction to
order the execution of its judgment pending an appeal pending in the
Supreme Court is thus consistent with the hierarchy of courts
provided in section 162 of the Constitution. Further, the assessment
of prospects of an appeal already before a superior court is
consistent with the obligation on all courts to be impartial and to
do justice between man and man.
[90] It
is noted that the applicant seems to query the jurisdiction of the
High Court. He relies on the provisions of section 176 of the
Constitution and argues that the power to order execution of
judgments under appeal no longer vests in the High Court but now
reposes in the Supreme Court. In this regard, he contends that when
it ordered execution pending appeal, the High Court violated his
perceived fundamental rights under sections 56(1) and 69(3) of the
Constitution. This misconception was canvassed in the case of Mutasa
and Anor v The Speaker of the National Assembly and Ors
CCZ
9/15.
It
was held at page 14 that:
“It
would be absurd to come to a conclusion that an act done in terms of
the provisions of the Constitution can violate someone's rights
under the same Constitution. In other words, the applicants could not
have been successful in challenging an act that was sanctioned by the
supreme law of the land.
The
Constitution is one document that contains provisions that are
consistent with each other. One provision of the Constitution cannot
be used to defeat another provision in the Constitution. Different
provisions of the Constitution must be interpreted with a view to
ensuring that they operate harmoniously to achieve the objectives of
the Constitution.”
[91] In
light of the foregoing, the prospects of success in the main matter
are negligible as the applicant has not established any cogent
reasons to support a violation of his fundamental rights. This
directly impacts upon the present application and I am constrained to
find that it would not be in the interests of justice to grant direct
access to this judicial forum.
THE
AVAILABILITY OF AN ALTERNATIVE REMEDY TO THE APPLICANT
[92] It
is settled that in an application for direct access, this Court may
also consider the availability of alternative remedies to the
applicant. In opposing the application, the respondent avers that the
applicant still enjoys a right of appeal to the Supreme Court and
that this matter is alleged to be still pending. This contention has
not been disputed by the applicant.
[93] Rule
21(8) sets out the availability of any other remedy as one of the
factors that are indicative of whether or not an application has
prospects of success. In Makoto
v Mahwe N.O. & Anor CCZ 29/19
at
page 10, this Court held that:
“If
a remedy is available to a party, whether it is a factual or a legal
remedy, courts will not normally consider a constitutional question
unless the existence of a remedy depends on it.”
[94] In
my view, the Court ought to refrain from addressing the
constitutional question as the Supreme Court is seized with the real
dispute between the parties which relates to possession and the
subsequent ownership issues surrounding the premises in question. I
am fortified in these remarks by the sentiments of this Court in the
case of Chawira
& Ors v Minister of Justice, Legal & Parliamentary Affairs &
Ors
CCZ
3/17
at
p9–10. It was held that:
“As
we have already seen, in the normal run of things courts are
generally loathe to determine a constitutional issue in the face of
alternative remedies. In that event they would rather skirt and avoid
the constitutional issue and resort to the available alternative
remedies. This has given birth to the doctrine of ripeness and
constitutional avoidance ably expounded by EBRAHIM JA in Sports
and Recreation Commission v Sagittarius Wrestling Club and Anor
2001
(2) ZLR 501 (S)
at
p505G….”
[95] In
my view, the applicant has failed to show that he does not have
alternative remedies available to him.
DISPOSITION
[96] From
the foregoing, it is the Court's view that the application lacks
merit. The application must therefore fail for the reasons that the
substantive application has no prospects of success and also that
there exist alternative remedies for the applicant.
In
the result, I make the following order:
The
application is dismissed with no order as to costs.
MAKARAU
JCC:
I
agree
PATEL
JCC: I
agree
G
S Motsi Law Chambers,
Applicant's Legal Practitioners
Mtetwa
& Nyambirai Law Firm, Respondent's Legal Practitioners
1.
At
544H-545B
2.
At pp4-5, para 9 of the cyclostyled judgment
