AN
APPLICATION FOR AN ORDER FOR LEAVE FOR DIRECT ACCESS TO THE
CONSTITUTIONAL COURT
HLATSHWAYO
JCC:
[1] This
is an application for direct access to this Court made in terms of
Rule 21 of the Constitutional Court Rules, 2016 ("the Rules").
[2] The
applicant is Tendai Mashamanda. The
first respondent is Bariade Investments (Pvt) limited a company duly
incorporated in terms of the laws of Zimbabwe. It was the appellant
in SC-09-20. The second respondent, Puwai Chiutsi, was one of the
respondents in SC-09-20. The third respondent, the Registrar of Deeds
is a public official appointed in terms of section 4 of the Deeds
Registry Act [Chapter
20:05].
The fourth respondent is the Sheriff of the High Court cited as the
officer responsible for executing judgments of the High Court. The
fifth respondent, Eliot Rogers, was the fifth respondent in SC-09-20.
[3] It
is the applicant's case that the Supreme Court, in its
determination in SC9/20, infringed several of his constitutional
rights. These rights are the following; the right to the protection
of the law which he says is enshrined in section 56(1) of the
Constitution, the right to a fair hearing in terms of section 69(2)
and the right of access to the courts enshrined in terms of section
69(3) of the Constitution.
BACKGROUND
[4] Sometime
in 2012, the fifth respondent obtained judgment in the High Court
under HC3331/14 against the second respondent. The court ordered the
sale in execution of the second respondent's property known as the
remainder of Subdivision C of Lot 6 of Lots 190,191,192,193,194 and
195, Highlands Estate of Welmoed (hereinafter referred to as “the
property”). On 18 September 2017, the first respondent participated
in the Sheriff's sale by public auction of the property and was
declared the highest bidder after offering to pay USD$270,000.
[5] Thereafter,
the second respondent lodged an objection to the confirmation of the
sale by the fourth respondent in terms of Rule 359(1) of the High
Court Rules 1971 (hereinafter referred to as “the
High Court Rules”)
and the objection was dismissed. Subsequently, the second respondent
filed
a court application under case number HC11349/17 in which he sought
the setting aside of the confirmation by the Sheriff of the sale of
the disputed property, to the first respondent. MATHONSI
J
(as he then was) dismissed the application on the basis that the
second respondent had conducted himself in a dishonourable and
unworthy manner by misappropriating trust funds and that “he had
employed every trick in the book to avoid paying his debt” to the
fifth respondent.
[6]
The second respondent then proceeded, unsuccessfully, to file an
urgent chamber application for an interdict against the transfer of
the property pending the outcome of the appeal that he had filed.
Notwithstanding the fact that the second respondent had failed to
secure an interdict against transfer of the property in question to
the first respondent, the latter submitted it became aware that the
first respondent had not only sold the property in question, but had
also transferred it into the applicant's name on 8 February 2019
under Deed of Transfer No.708/19.
[7]
The fifth respondent then filed an urgent chamber application under
HC1444/19 in which he sought the cancellation of Deed of Transfer
No.708/19. This was on the basis that the second respondent's
conduct was fraudulent since he had knowingly sold the property which
was under judicial attachment without the knowledge of the fourth and
fifth respondents. As a result, the fifth respondent argued, the sale
in question was null and void. The court a
quo
dismissed
the application, not on the merits, but on the basis that it could
not grant a final order in an urgent chamber application which sought
a provisional order. The fifth respondent went on to appeal to this
Court against that decision and the appeal was heard jointly with
second respondent's appeal.
[8]
Thereafter, the first respondent filed an application for the
cancellation of Deed of Transfer No.708/19 under HC2620/19. The court
a
quo
dismissed the application holding that the matter was res
judicata
because it had already been decided by MANZUNZU J in HC1444/19, a
circumstance that rendered the court functus
officio.
The court also held that a pignus
judiciale
could not conclusively be considered to have been created over the
property in question since the first respondent had not proved the
existence of a caveat
registered against the title deed in the first respondent's name.
[9]
Aggrieved, the first respondent noted an appeal to the Supreme Court
('the court a
quo')
under case number SC9-20. The argument advanced by the first
respondent was that the High Court had erred in coming to the
conclusion that the material and live issue of the second
respondent's fraud and forgery was not relevant to the just
determination of the matter which was before it.
[10]
It was the first respondent's further argument that the High Court
had erred when it came to the conclusion that the judgment of the
High Court, per MANZUNZU J, concerned the same subject matter as the
application before it. The first respondent also argued that the
High Court had erred in not coming to the conclusion that the
question of equities was not a live issue before it and that it (the
Court) had to determine, instead of, the question of the validity of
the sale and transfer to the appellant in view of the pignus
judiciale
brought about by the attachment in execution.
[11]
In disposing of the matter the court a
quo
held that the original judgment by MATHONSI J (as he then was) had
been competently made and that it was an order against the transfer
of the property in question otherwise than through the process
ordinarily followed after a sale in execution is duly confirmed. The
court a
quo
went further to hold that although the property was still in the
second respondent's name, it had ceased to be his to deal with as
he wished from the moment that it was attached in execution and
thereafter sold to the appellant because of the
pignus
that was operating against the property.
[12] The
court a
quo
then dealt extensively with the judgment by CHITAPI J under judgment
number HH 477/21. In analysing the judgment, the court a
quo
found that the processes leading to the default judgment granted by
CHITAPI J as well as the order itself were irregular. That judgment
was subsequently reviewed by the court a
quo
in terms of section 25 of the Supreme Court Act [Chapter
7:13].
The result was that the order of CHITAPI J was vacated.
[13] The
Applicant was aggrieved and has approached this Court for direct
access in terms of section 167(5)(a) of the Constitution of Zimbabwe.
The Applicant submits that three of his fundamental rights enshrined
in Chapter 4 of the Constitution were infringed by the Supreme Court
in SC09/20 through judgment number SC24-22.
As already noted, the three rights that the applicant alleges were
infringed are the right to the protection of the law as enshrined in
terms of section 56(1) of the Constitution, the right to a fair
hearing enshrined in section 69(2) of the Constitution and the right
of access to the courts as enshrined in section 69(3) of the
Constitution.
[14] The
first respondent has opposed the application and has argued that the
Applicant lost the appeal on a non-constitutional matter. The first
respondent further argues that the court a
quo
determined the appeal that was before it, prior to dealing with the
irregular judgment by invoking section 25 of the Supreme Court Act.
None of the applicant's rights were therefore infringed either by
the Supreme Court or by any other person. It is further argued that
the provisions of section 25 of the Supreme Court Act are
constitutional and that the Supreme Court's action of invoking that
section are valid.
[15] The
fifth respondent has also opposed the application and his first
argument is that the present application is an abuse of court process
because the Supreme Court did not infringe any of the applicant's
rights in its determination. He further contends that the court a
quo
acted within its jurisdiction, and that it exercised its review
powers according to section 25(2) of the Supreme Court Act. He
further submits that a pignus
judiciale
is a recognized part of our law.
PROCEEDINGS
IN THIS COURT
[16] Mr
Madhuku,
for the applicant, argued that it is now trite in this jurisdiction
that a party cannot challenge a decision of the Supreme Court on the
basis that it was wrong. However, a Supreme Court decision can
infringe a party's rights in the manner in which it determines the
matter. He submitted that the Supreme Court infringed the applicant's
right to equal protection of the law in terms of section 56(1) of the
Constitution, the right to a fair hearing in section 69(2) and the
right of access to the courts as enshrined in section 69(3) of the
Constitution.
[17] Counsel
for the applicant further argued that the Supreme Court acted without
jurisdiction when it set aside the High Court's decision under
judgment number HH477/21. He argued that the effect of CHITAPI J's
judgment rendered the appeal moot. According to the applicant, the
setting aside of the High Court's decision was unprocedural as the
Supreme Court acted outside the record.
[18] It
was the applicant's further argument that the Supreme Court had
erroneously invoked its review authority under section 25(2) of the
Supreme Court Act [Chapter
7:13]
in reviewing a default judgment. This, it was submitted, is contrary
to its review powers. It was the applicant's argument that a
default judgment cannot be reviewed under the limited review powers
granted to the Supreme Court. Mr
Madhuku
further argued that the Supreme Court applied a non-existent law.
Whilst the law holds that the Supreme Court cannot be wrong, it
cannot, however, invent a law and must always seek to apply an
existing law.
[19] Per
contra,
Mr Mapuranga,
for
the first respondent
raised
a preliminary point that the applicant did not have locus
standi
to challenge the section 25(2) portion of the judgment of the Supreme
Court. It was his argument that the judgment dealt with a
long-standing dispute regarding execution which had started in 2017
and was completed in 2018. Mr
Mapuranga
submitted that the applicant only came into the picture in 2019. He
further argued that in the circumstances having a financial interest
did not endow the applicant with the necessary locus
standi.
[20] In
response to the point in
limine
raised
by the first and fifth respondents, counsel for the applicant
submitted that such an argument was a misdirection. He submitted that
the applicant had locus
standi
on the basis that the Supreme Court infringed his rights in terms of
section 56(1), section 69(2) and (3) of the Constitution.
[21] On
the merits, Mr
Mapuranga
submitted that there were no prospects of success in this matter. He
argued that there was no law that was raised by the applicant that
would have protected the allegedly infringed rights. Mr
Mapuranga
further argued that the Supreme Court provided ample authority for
the view that a property subject to a pignus
judiciale
could not be sold. He argued that the decision made by the Supreme
Court was therefore not novel and, accordingly, the argument by the
applicant lacked merit.
[22] He
further argued that the applicant's submission that a default
judgment cannot be reviewed was based on an entirely misplaced
principle. He stated that there was no principle that disabled the
review of a default judgment. Mr
Mapuranga
further stated that section 25 of the Supreme Court Act gave the
Supreme Court the jurisdiction to act in the manner it did. It was
his contention that the question of review was addressed and that
none of the parties in the Supreme Court were willing to defend the
default judgment granted by CHITAPI J.
[23] Mrs
Damiso,
for
the fifth respondent, associated herself with the preliminary point
raised by the first respondent in relation to the applicant's locus
standi
to bring the application. On the merits, she submitted that the
application could not succeed as articulated by the first respondent.
However, she added that the content of the right in section 18(1) of
the old Constitution now appears and is subsumed in and under
numerous other provisions of the current Constitution which are, for
example, section 68, section 69 and section 70. She argued that it is
these sections that continue to give life to the right previously
protected in section 18(1) of the old Constitution.
[24] She
further argued that very minimal submissions had been made by the
applicant in impugning section 25(2) of the Supreme Court Act. She
submitted that the impugned provision would remain valid until
declared unconstitutional. She submitted that it was trite in this
jurisdiction that a court will not readily declare a provision
unconstitutional. It was her argument therefore that if there is an
alternative interpretation that avoids declaring a provision invalid,
the Court ought to follow that approach. In the circumstances, she
argued that there needed to be more substantial arguments made than a
mere reference to constitutional invalidity contained in two
paragraphs.
PRELIMINARY
POINT
[25] It
is imperative to deal first with the preliminary point raised by Mr
Mapuranga
for the first respondent. Mr
Mapuranga
argued that the applicant did not have the necessary locus
standi
to challenge the section 25(2) portion of the judgment of the court a
quo.
The portion of the judgment referred to by Mr
Mapuranga
was the portion wherein the court a
quo
set aside the judgment by CHITAPI J in HH477/21. The matter in
HH477/21 involved the second respondent as the applicant and the
first, fourth, and fifth respondents as the respondents. It is common
cause that the applicant was not party to those proceedings, hence
any order made would not have had any effect on him.
[26] In
law, standing or locus
standi
is a condition that a party seeking a legal remedy must show that
they have by demonstrating to the court sufficient connection to and
harm from the law or action challenged to support that party's
participation in the case. Considering the principle of locus
standi,
the Supreme Court in Sibanda
& Ors v The Apostolic Faith Mission of Portland Oregon (Southern
African Headquarters) Inc SC49/18
held
as follows:
“It
is trite that locus
standi
is the capacity of a party to bring a matter before a court of law.
The law is clear on the point that to establish locus
standi,
a party must show a direct and substantial interest in the matter.
See United
Watch & Diamond Company (Pty) Ltd & Ors v Disa Hotels Ltd &
Anor
1972 (4) SA 409 (c) at 415 A-C and Matambanadzo
v Goven
SC23-04.”
It
is settled that the principle of locus
standi
is concerned with the relationship between the cause of action and
the relief sought. Thus, a party needs to show that they have a
direct, personal and substantial interest in the matter in
contention. See Liziwe
Museredzera & Ors v Minister of Agriculture, Lands, Water and
Rural Settlement & Ors CCZ 1/22 at p22.
[27]
There is no doubt that the applicant bought the property in question
at a public auction and was declared the highest bidder after
offering the sum of US$270,000.00. It follows, therefore, that the
applicant would have a direct and substantial interest in any matter
regarding anything concerning the property. The fact that he was not
cited in the proceedings in HH477/21 does not take away the fact that
the applicant had bought the property and that he had a direct and
substantial financial interest in it.
[28]
The above states position applies to private law litigation
specifically. The position is however now settled that the new
Constitution has expanded the locus
standi
of persons seeking to approach the Court for the enforcement of an
alleged breach of a fundamental right (public law litigation). In
this regard I can do no better than cite the remarks of MALABA CJ in
Meda
v Matsvimbo Sibanda & Ors CCZ 10/16
at
p5 wherein he held as follows:
“It
is clear from a reading of section 85(1) of the Constitution that a
person approaching the Court in terms of the section only has to
allege an infringement of a fundamental right for the Court to be
seized with the matter. The purpose of the section is to allow
litigants as much freedom of access to the courts on questions of
violation of fundamental human rights and freedoms with minimal
technicalities.”
See
also the dicta
in Chirambwe v Parliament of Zimbabwe & Ors CCZ 4/20 and Gonese &
Anor v President of Zimbabwe & Ors CCZ 10/18.
[29]
Mr
Madhuku,
for
the applicant submitted that the court a
quo
infringed his client's (the applicant's) rights when it acted
without jurisdiction. He argued that the court a
quo's
decision to invoke and determine a matter under section 25(2) of the
Supreme Court Act without hearing the parties was an infringement of
the applicant's rights enshrined in sections 56, 69(2) and (3) of
the Constitution.
[30] That
mere allegation alone is sufficient to establish locus.
On the reasoning in Meda,
supra,
the preliminary point raised by the first respondent stands
dismissed.
ISSUE
FOR DETERMINATION
[31]
The sole issue that arises for determination in this application is
whether or not it is in the interest of justice to grant direct
access to this Court.
[32] Applications
of this nature are regulated by the rules of this Court. The
applicant therefore has to first satisfy the requirements as set out
in Rule 21(3). It was stated in Liberal
Democrats & Ors v The President of the Republic of Zimbabwe E.D.
Mngangagwa N.O & Ors CCZ 7/18,
at p 10, as follows:
“… 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.”
[33] Rule
21(3) of the Rules contains the requirements that ought to be
satisfied in an application of this nature. It states the following:
“(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.” (emphasis added)
[34] Currie
I and de Waal J in “The
Bill of Rights Handbook”
(6th
edn, Juta & Co (Pty) Ltd, Cape Town, 2013), at p128, discuss the
importance of the requirement that an applicant should show that it
is in the interest of justice that the application be granted. They
state as follows:
“Direct
access is an extraordinary procedure that has granted by the
Constitutional Court in only a handful of cases… 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 of purely academic interest, and to hear
cases without the benefit of the views of other courts having
constitutional jurisdiction. Moreover, 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 given.”
[35] It
is settled law that the appellate jurisdiction of the Court is
triggered only where a constitutional matter arose in the court a
quo
and was decided by that court. See Sadziwani
v Natpak (Private) Limited & Ors
CCZ
15/19 at p6. Section 332 of the Constitution defines a constitutional
matter as “a matter in which there is an issue involving the
interpretation, protection or enforcement of this Constitution”.
The jurisdictional effect of the definition of a constitutional
matter was discussed in Moyo
v Sergeant Chacha and Ors
CCZ 19/17 at p15 of the judgment as follows:
“The
import of the definition of 'constitutional matter' is that the
Constitutional Court would be generally concerned with the
determination of matters raising questions of law, the resolution of
which require the interpretation, protection or enforcement of the
Constitution.
The
Constitutional Court has no competence to hear and determine issues
that do not involve the interpretation or enforcement of the
Constitution or are not connected with a decision on issues involving
the interpretation, protection or enforcement of the Constitution.”
[36] It
also ought to be noted that the mere citation of constitutional
provisions or alleged infringements of constitutional rights does not
mean that a constitutional issue has been raised. In Magurure
and Ors v Cargo Carriers International Hauliers (Pvt) Ltd t/a Sabot
CCZ 15/16
the
Court had occasion to deal with this aspect. It stated as follows at
p4 of the judgment:
“Have
the applicants brought to the Court for determination a matter in
which there is an issue involving the interpretation, protection or
enforcement of the Constitution? The fact that the applicants allege
that the respondent has by the conduct it is alleged to have
committed infringed their fundamental right to fair and safe labour
practices enshrined in section 65(1) of the Constitution does not
mean that they have raised a constitutional matter. It is for the
Court to decide whether the determination of the legality of the
conduct of the respondent if proved would require the interpretation
and application of section 65(1) of the Constitution.”
[37] The
applicant in
casu
merely challenges the correctness of the findings made by the court a
quo
but no constitutional issues arise therefrom. In
The
Cold Chain (Pvt) Ltd t/a Sea Harvest v Makoni 2017 (1) ZLR 14 (CC)
at
17A-B, the Court discussed the test to be applied in determining
whether or not the court a
quo
determined a constitutional matter. It held as follows:
“The
principles to be applied in the determination of the question whether
the Supreme Court determined a constitutional matter are clear. It is
not one of those principles that the court against whose judgment
leave to appeal is sought should have referred to a provision of the
Constitution. There
ought to have been a need for the subordinate court to interpret,
protect or enforce the Constitution in the resolution of the issue or
issues raised by the parties. The constitutional question must have
been properly raised in the court below. Thus, the issue must be
presented before the court of first instance and raised again at or
at least be passed upon by the Supreme Court, if one was taken.”
(emphasis added)
[38] The
applicant alleges that his right to equal protection of the law in
terms of section 56(1) of the Constitution was violated by the manner
in which the court a
quo
disposed of the matter. In the court a
quo
was an appeal from the decision of the High Court, which decision was
not based on the enforcement or interpretation of the Constitution.
The
court a
quo
determined
that it was clear that the second respondent could not dispose of the
property whose sale the court under HC604/18 had confirmed [which in
our view was correct]. Once the Sheriff's sale was confirmed by the
High Court, the second respondent could no longer deal with or
dispose of the property as he wished. The decision under HH604/18 was
competently made and should remain extant. It was further determined
by the court a
quo
that the second respondent, being a senior legal practitioner, could
not have failed to appreciate that he was acting contrary to law. It
was further determined that because there was a pignus
judiciale
over
the property, the second respondent did not have the legal competency
to dispose of the property after it was attached.
[39] The
decision of the court a
quo
was made in accordance with the law. I find nothing to fault in the
reasoning of the court a
quo
on this point. The court a
quo
acted within the confines of the law and as determined in Denhere,
supra,
the Court remarked thus at p24 of the judgment:
“When
the Supreme Court, like any other court, sits to decide an appeal,
all it is required to do is to dispose of the matter in a manner
which is consistent with the law. A judicial decision is the end
result of a process that is regulated by law. In other words, a
person has a right to a fair judicial process.”
[40] Such
determination by the court a
quo
cannot be said to have been irregular. I find no basis for the
suggestion that the applicant's rights under section 56 of the
Constitution were violated by the court a
quo.
There is no indication as to how the court a
quo
could have violated the applicant's right to equal protection of
the law. The allegations by the applicant are meritless and thus it
is not in the interest of justice to grant an order of direct access
to this Court.
[41] The
applicant's further grievance appertains to the manner in which the
court a
quo
handled the matter. His argument was that the court acted without
jurisdiction which was then contrary to a fair hearing under section
69(2) and a mockery of the right of access to the courts as protected
by section 69(3). The applicant further argued that determining a
matter under section 25(2) of the Supreme Court Act without hearing
the parties on whether the section was applicable in the
circumstances is a clear infringement under section 69(2) and (3) of
the Constitution.
[42] The
applicant's contention is that the court a
quo
acted without jurisdiction when it set aside the decision of CHITAPI
J under HH 477/21. The judgment under HH 477/21 was a default
judgment which set aside the decision by MATHONSI J (as he then was)
under HH 604/18 which had endorsed the confirmation of the sale of
the contested property by the Sheriff. The court a
quo
found that the determination by CHITAPI J was not consistent with
what had been sought by the parties and invoked the powers of review
under section 25 of the Supreme Court Act.
[43] The
Supreme Court Act confers upon the Supreme Court various powers and
one such provision is section 25. The section provides as follows:
“REVIEW
POWERS
1.
Subject to this section, the Supreme Court and every judge of the
Supreme Court shall have the same power, jurisdiction and authority
as are vested in the High Court and the judges of the High Court,
respectively, to review the proceedings and decisions of inferior
courts of justice, tribunals and administrative authorities.
2.
The
power, jurisdiction and authority conferred by subs (1) may be
exercised whenever it comes to the notice of the Supreme Court or a
judge of the Supreme Court that an irregularity has occurred in any
proceedings or in making of any decision notwithstanding that such
proceedings are, or such decision is, not the subject of an appeal or
application to the Supreme Court.[emphasis
added]”
[44] From
a reading of the above provision, the Supreme Court has the power to
review decisions of lower courts. These powers are anchored by the
provisions of section 169(2) of the Constitution, which provides
thus:
“Subject
to subsection (1), an Act of Parliament may confer additional
jurisdiction and powers on the Supreme Court.”
As
observed in the case of Chombo
v National Prosecuting Authority & Ors
S–158–21,
the Supreme Court's power of review has always been there and that
power has been made use of in this jurisdiction since time
immemorial. The powers of review can be invoked by a court mero
motu
whenever
an irregularity has come to the court's attention.
[45] The
applicability of section 25 of the Act was extensively canvassed in
the case of PG
Industries Zimbabwe (Pvt) Ltd v Bvekerwa & Ors
SC
53/16 at page 17H to 18D wherein it was stated:
"In
terms of section 25(2) this court is imbued with powers to set aside
proceedings that are irregular even if those proceedings are not the
subject of an appeal or application before the court. I am fortified
in this view by the remarks of ZIYAMBI JA in The
Chairman Zimbabwe Electoral Commission & 2 Ors v Roy Bennet &
Anor
SC
48/05, as follows:
'Section
25(2) confers additional jurisdiction which may be exercised when it
comes to the notice of the Supreme Court or a judge of that court
that an irregularity has occurred in proceedings not before it on
appeal or application. Thus section 25(2) deals with irregularities
in respect of which no appeal or application is before the Supreme
Court and the review is undertaken at the instance of the Supreme
Court and not of any litigant.'”
[46] The
Supreme Court has mostly recently exercised this power of review by
setting aside decisions of the High Court: see MDC
& Ors v Timveos & Ors
SC-9-22.
What
the court a
quo
did in casu
was not any different from what the Supreme Court has been empowered
to do. An irregularity occurred and then it came to the attention of
the court. Acting in terms of the powers conferred upon it in terms
of section 25(2) of the Supreme Court Act, the court a quo duly
exercised its powers and set the decision aside. The court a
quo
acted in terms of the law.
[47] The
review powers do not require the court to invite parties to first
make submissions before the court makes a decision, although the
court will ordinarily bring to the attention of the parties the
irregularity, which it duly did in this case (and none of the parties
were prepared to support the irregularity). The court simply makes a
determination mero
motu
after noticing an irregularity and alerting the parties to it were
possible. The court a
quo
in exercising its review powers cannot in the circumstances be said
to have violated the applicant's right to a fair hearing and access
to the courts. The right to a fair hearing was not violated neither
was the right of access to court. The application has no prospects of
success in that regard.
[48] Taking
into account the above, I am of the considered view that there was no
misdirection by the court a
quo
justifying the grant of direct access. The applicant is merely
dissatisfied by the findings of the Supreme Court on the merits. He
was aggrieved that he did not receive a judgment that was in his
favour. He seeks a second bite of the cherry. However, the law does
not allow the Court to undertake such a course to review decisions of
the court a
quo
on non-constitutional matters. That is so because decisions of the
court a
quo
are final, except in matters where the court a
quo
makes a determination on a constitutional matter. The applicant
cannot be allowed to approach the Court in order to attack the
correctness of the decision of the court a
quo
on a non-constitutional matter. As stated in Lytton
Investments supra
at pp23-24 of the judgment:
“What
is clear is that the purpose of the principle of finality of
decisions of the Supreme Court on all non-constitutional matters is
to bring to an end the litigation on the non-constitutional matters.
A decision of the Supreme Court on a non-constitutional matter is
part of the litigation process. The decision is therefore correct
because it is final. It is not final because it is correct.”
[49] Once
it is accepted that the court a
quo's
decision was on a non-constitutional matter, the question of the
constitutionality of the decision falls outside the jurisdiction of
the Court. The jurisdiction of the Court cannot be exercised over the
matter of the correctness or otherwise of the decision of the court a
quo
on a non-constitutional matter because doing so would not serve the
purpose and objective for which the narrow and specialised
jurisdiction was conferred on the Court under the Constitution.
[50] Regarding
costs, the settled practice of this Court is to refrain from granting
an order for costs unless exceptional circumstances warrant an award
of costs. See Mbatha
v Confederation of Zimbabwe Industries & Anor
CCZ–5–21
at
p. I am unable to find any inappropriate conduct on the applicant's
part warranting an award of costs in favour of the respondents. There
would therefore be no legal basis for such an order of costs.
DISPOSITION
[51] The
applicant has failed to establish the basis upon which this Court
should grant direct access. We do not find favour in the arguments
that there was a violation of the rights enshrined in sections 56,
69(2) and 69(3) of the Constitution. It is therefore not in the
interests of justice to grant direct access.
Accordingly,
the application is dismissed with no order as to costs.
GARWE
JCC: I
agree
PATEL
JCC: I
agree
Samukange,
Hungwe, Attorneys,
applicant's legal practitioners
Gill,
Godlonton & Gerrnas,
first respondent's legal practitioners
Tendai
Biti Law,
fifth respondent's legal practitioners
