For reasons which are not apparent from the papers placed before me, the first respondent sued the first applicant in the Magistrate's Court of Harare in case number 19780/13 for payment of the sum of $73,577=93 together with interest of 5% per annum and costs of suit on the scale of legal practitioner and client and obtained judgement on 7 November 2013.

I say the reasons are not apparent because a claim of that magnitude would ordinarily be made in this court; the Magistrates Court's civil jurisdiction being currently limited to only $10,000.

Subsequently, a writ of execution against immovable property, being Stand 8 Good Hope Township of Lot 7 of Good Hope, Westgate, Harare, was issued on 14 November 2014 after the first respondent had failed to locate sufficient movable assets to satisfy the debt.

That property was then attached in execution by the second respondent in terms of Order 26 Rule 8 of the Magistrates Court (Civil) Rules 1980.

I say that because the second respondent sought authority from the resident magistrate for the area to sell the property, presumably acting in terms of Order 26 Rule 8(2) of that court's Rules which provides, that, whenever a dwelling is attached, the Messenger shall forthwith send written notification to the magistrate and then take no further steps.

The magistrate sent written notification of the attachment to the secretary in the Ministry of Local Government, Public Works and National Housing - who did not bother to respond.

On 19 February 2015, the magistrate wrote to the second respondent in the following:

“Reference is made to my letter to the Secretary dated 2 January 2015. The Secretary has not respondent (sic) to the letter. In terms of Order 26 Rule 8, you are hereby directed to proceed with the sale of four attached properties. Be guided accordingly.

B Pabwe
Resident Magistrate
Harare Civil Court”

After receiving those instructions from the magistrate, the second respondent, who I must stress is an officer of that court charged with the execution of writs coming out of that court, proceeded to advertise the property for sale by public auction on 10 April 2015.

It is that advertisement which has jolted the applicants into action and triggered the filing of this urgent application wherein they seek the following relief:

“TERMS OF THE FINAL ORDER SOUGHT

That you show cause to this Honourable Court why a final order should not be made in the following terms:

(a) The sale of Stand No.8 Goodhope Township of Lot 7 of Goodhope be and is hereby suspended on condition that the applicant pays the judgement in three equal monthly instalments of USD22,054 beginning on the 1st of July 2015 until the debt is settled, and, if applicant defaults on any one payment execution will proceed.

(b) Applicants pay the costs.

It is hereby ordered, that, pending the confirmation of this matter, the applicant is granted the following relief -

1. The sale of Stand No.8 Goodhope Township of Lot 7 of Goodhope be and is hereby suspended on condition that the applicant pays an amount of USD22,054 on or before the first day of each month provided that the first such payment shall commence on or before the 1st of July 2015. In the event that the applicants defaults in respect of any one payment the sale in execution shall proceed.

2. The 2nd respondent shall suspend any action towards the sale in execution of the property referred to in paragraph 1 hereof.

3. A copy of this order or shall be served on the 1st and 2nd respondent's legal practitioners.”

Never mind that the interim relief is the same as the substantive relief; (Kuvarega v Registrar General & Anor 1998 (1) ZLR 188), but, clearly, this is an application made in terms of Rule 348A of the High Court of Zimbabwe Rules 1971 for the stopping of a sale in execution to facilitate settlement of a claim.

Ordinarily, there would be nothing wrong with it except that it has been made in the wrong court.

Rule 348A of the High Court Rules deals with stopping sales in execution conducted by the Sheriff of the High Court in pursuance of a writ issued in terms of Rule 346 of the High Court Rules.

This is an application for condonation of failure to file a notice of appeal within the time prescribed by Rule 38 of the Supreme Court Rules 2018 and extension of time within which to appeal.

The applicant is a charitable trust of a public character. It was registered with the Registrar of Deeds in terms of section 5(b) and (m) of the Deeds Registry Act [Chapter 20:05] under a Notarial Deed of Trust number MA NO 2079/2019 on 25 September 2019.

Thereafter, the applicant lodged a chamber application for the registration and certification of the same Trust with the High Court.

On 2 January 2020, a judge in chambers granted the following order:

“On payment of the appropriate fees provided for in SI187/2019 (item 12 of Schedule r2) the Notarial Deed of Trust MA. NO. 20179/2019 be and is hereby registered with the court and a copy thereof shall be retained by the Registrar who shall issue a Registration Certificate of the Trust.”

The Registrar of the High Court failed to effect the order.

She sought directions from the presiding judge.

Only then did it dawn upon the judge that the order lacked a legal basis to stand on.

The presiding judge invoked the provisions of Order 49 Rule 449 of the High Court Rules 1971 and sought to rescind the order.

The appropriate notice of her intention to revoke the order was duly served on the applicant.

On the date of hearing, counsel for the applicant argued in support of the order.

Judgment was reserved.

The judgment, HMT59-20, was released on 15 September 2020. The order of 2 January 2020 was revoked in its entirety on the basis that it was “erroneously sought and erroneously granted.”

The applicant's counsel collected it on 17 September 2020.

The applicant sought to appeal against the judgment on 7 October 2020, which turned out to be a day after the dies induciae for doing so had lapsed.

It filed the initial application for condonation and extension of time within which to note an appeal under Rule 61 instead of Rule 43 of the rules of this Court.

That application was removed from the roll for that reason on 28 October 2020.

The present application was filed on 19 November 2020. It was set down on 12 March 2021 for hearing before me, in chambers, on 30 March 2021....,.

I now proceed to determine whether the applicant is entitled to the relief it seeks.

It is trite that the general requirements for an application for condonation and extension of time to note an appeal are the length of the delay, the reasonableness of the explanation for the delay, and the prospects of success on appeal. These factors must be considered cumulatively and not individually: see Ester Mzite v Damafalls Investments (Pvt) Ltd SC21-18.

In the present matter, the applicant was required to file its notice of appeal by 6 October 2020. It filed the present application on 19 November 2020.

This was a delay of six (6) weeks.

It was not an inordinate delay, regard being had to the explanation provided by its erstwhile legal practitioner. She filed the founding affidavit for the applicant and took personal responsibility for failing to compute the dies induciae from the ex facie date of judgment and for basing the initial application on Rule 61 instead of Rule 43 of the Supreme Court Rules.

This Court has, in numerous cases, emphasized that the duty of a legal practitioner is to be knowledgeable about the rules of this Court. It is not to make excuses, based on their ignorance of the rules of court, on behalf of the clients.

These were, however, minor bleeps and blunders that could have been avoided with a small measure of diligence. I, however, accept the explanation proffered as reasonable.

The application revolves upon the prospects of success on appeal.

The learned judge a quo relied on Rule 449(1)(a) of the High Court Rules 1971 to revoke the judgment.

The presiding judge held that the High Court did not have the jurisdiction to either register or issue a certificate of registration to the applicant; and, further, held that the absence of an enabling statutory framework precluded the Registrar of the High Court from enforcing or implementing the order of 2 January 2020.

The presiding judge further held, that, as the applicant had already been registered by the appropriate authority, it could not properly seek a second registration and certification from the High Court.

All that the High Court could do was to issue a mandatory interdict, for good cause, against the Registrar of Deeds to register and certificate the applicant had he declined to do so.

The judge a quo also relied on the case of Veritas v Zimbabwe Electoral Commission & Ors SC103-20 to hold that the applicant was not a legal person, and, as such, it could not invoke its inherent powers codified in section 13 of the High Court Act to give it access to address a wrong or enforce civil remedies.

The applicant intends to raise three grounds of appeal, which are worded as follows:

“1. The court a quo erred in law by applying subs (sic) (1)(a) of Order 49 Rule 449 of the High Court Rules to the facts at hand, in that the order was not erroneously sought nor was it erroneously granted.

2. The court a quo erred in law and in fact in holding that the order granted was incapable of enforcement when the actual issue before the court had not been enforcement but registration.

3. The court a quo erred in law and fact in concluding, that, the court had no jurisdiction to register the Trust by virtue of it having been registered with the Deeds Registry Office when there is no law or practice barring such registration with the High Court.

The applicant will seek that the appeal be allowed, the judgment a quo be set aside and substituted with the initial order granted on 2 January 2020.”

It is clear from the grounds of appeal, as worded, that, the applicant seeks to impugn all the other legal and factual findings of the court a quo other than the legal finding that it does not have legal standing to sue in its own name.

The first ground of appeal, which mirrors the averment made by the applicant in paragraph 14.1 of its founding affidavit, specifically limits the attack to the construction of Rule 449(1)(a) to the finding that the initial order “was erroneously sought or erroneously granted.”

It does not further impugn the inapplicability of this subrule to circumstances where there is an absent party adversely affected by the order.

However, in oral argument, counsel for the applicant argued, that, as there was no respondent a quo, the order could not conceivably have been “granted in the absence of any party affected thereby.”

He contended, that, the only party affected by the order was the applicant, which, through the chamber application, was present and not absent before the High Court. He therefore submitted that the revocation could not properly be done under Rule 449(1)(a) of the High Court Rules.

He further contended, that, the High Court had jurisdiction to register the applicant notwithstanding that this had already been done by the Registrar of Deeds.

Lastly, he argued that the learned judge erred in holding that the order was incapable of enforcement when the actual issue before the Court was registration.

Rule 449 of the High Court Rules reads as follows:

“449 Correction, variation and rescission of judgments and orders

(1) The court or a judge may, in addition to any other power it or he may have, mero motu or upon the application of any party affected, correct, rescind, or vary any judgment or order —

(a) That was erroneously sought or erroneously granted in the absence of any party affected thereby; or

(b) In which there is an ambiguity or a patent error or omission, but only to the extent of such ambiguity, error or omission; or

(c) That was granted as the result of a mistake common to the parties.

(2) The court or a judge shall not make any order correcting, rescinding, or varying a judgment or order unless satisfied that all parties whose interests may be affected have had notice of the order proposed.”

The meaning of Rule 449(1)(a) of the High Court Rules was rendered in Grantully (Pvt) Ltd & Anor v UDC Ltd SC17-00 (2000 (1) ZLR 361 (S)). This Court said at pp3 and 5 that:

“Rule 449 is one of the exceptions to the general principle, that, once a court has pronounced a final judgment or order it is functus officio and has itself no authority to correct, alter or supplement it.

Moreover, the specific reference in Rule 449(1)(a) to a judgment or order granted 'in the absence of any party affected thereby' envisages such a party being able to place facts before the correcting, rescinding or varying court, which had not been before the court granting the judgment or order. I think the Rule goes beyond the ambit of mere formal or technical defects in the judgment or order.”

The purpose of Rule 449 of the High Court Rules is to prevent the continued existence and perpetuation of an obvious judicial injustice by correcting or setting it aside: see Tiriboyi v Jani & Anor 2004 (1) ZLR 470 (H)…,.

The three conjunctive pre-requisites for invoking Rule 449(1)(a) of the High Court Rules were rendered by GOWORA JA in Maxwell Matsvimbo Sibanda v Zambe Nyika Gwasira & Ors SC14-21…,. They are that:

“(a) The judgment must have been erroneously sought or granted;

(b) The judgment must have been granted in the absence of the applicant; and

(c) The applicant's rights or interests must be affected by the judgment: see Mashingaidze v Chipunza & Others HH688-15.”

Counsel for the applicant strongly argued, that, there was not another party interested or affected by the order other than the applicant.

The relief sought by the applicant demonstrates his patent error.

In terms of the relief sought, the Registrar was required:

(i) Firstly, to accept the appropriate fee provided for in paragraph 12 to the Second Schedule of the High Court (Fees) (Civil Cases) (Amendment) Rules, SI187 of 2019;

(ii) Secondly, to register the notarial deed with the court;

(iii) Thirdly, to retain a copy thereof; and

(iv) Lastly, to issue a registration certificate of the Trust to the applicant.

The Registrar was therefore a party with a direct and substantial interest in the order sought.

Indeed, the fact that when confronted with the order, the Registrar was unable to implement it clearly shows that he was an interested party.

There is no doubt in my mind that the applicant failed to cite the Registrar as a party who had a direct and substantial interest in the application.

The further and alternative argument by counsel for the applicant was that, as the application was addressed to the Registrar of the High Court, he cannot be said to have been absent.

It is correct, that, every application lodged in the High Court is, by operation of law, addressed to the Registrar of that court.

Herbstein and Van Winsen, the Civil Practice of the High Courts and the Supreme Court of Appeal of South Africa by CILLIERS, LOOTS and NEL, 5th ed…, makes the same point in the following words:

“In an ex parte application, the notice of motion is addressed to the Registrar. It must be supported by an affidavit as to the facts upon which the applicant relies for relief.”

The same procedural requirement, to address every application to the Registrar of the court a quo and then to other interested parties, is prescribed by both Form 29 and Form 29B.

It is, however, noteworthy that such an address does not signify the service of the application upon the Registrar.

Rather, it is an administrative device that allows the Registrar to file the issued pleading in a court record opened at the institution of the relevant proceedings. It does not, therefore, denote service of the relevant pleading on the Registrar.

In any event, it would be well-nigh impossible for the Registrar to ferret through every pleading to determine whether or not he is being addressed as a litigant or as an administrator.

Where, therefore, an applicant wishes to sue the Registrar, he or she or it must treat him as befitting of every other respondent by specifically citing him on the face of the application, utilizing the appropriate form, and serving him with the application.

It seems to me, that, it was important and necessary for the applicant to specifically follow the relevant requirements prescribed in the Rules.

This was because the applicant was not only seeking relief from the Registrar but was also seeking novel relief at that.

In these circumstances, a relevant and necessary respondent was not cited.

The vacated order was given in favour of the applicant in the absence of a party who was duly affected by it: see Kufakwazvino v Mutandwa & Ors SC29-07.

The further question raised by the prospective first ground of appeal is whether the vacated order was erroneously sought or erroneously granted.

Counsel for the applicant contended, that, the vacated order was neither erroneously sought nor erroneously granted. He premised his argument on two grounds:

(i) The first was that the High Courts in South Africa are imbued, by section 4 of the Republic of South Africa's Trust Property Control Act (No.57/1988), with the authority to register Trusts similar to the applicant. He equated this power with the one conferred on the High Court to charge the specified fee for “Registration Certificate” by paragaph 12 of Statutory Instrument S.I.187 of 2019.

He, therefore, premised his second contention on that Statutory Instrument.

He argued, that, the High Court had the power to issue, register, and certify the applicant as a Trust under the same provision.

He further argued, that, the provision drew its force from the inherent power of the High Court, codified in section 13 of the High Court Act.

Counsel submitted that these were arguable propositions which stood a reasonable possibility of success on appeal to the Supreme Court.

The contentions by counsel for the applicant are patently fallacious.

He was unable to pinpoint local legislation similar to the South African one which confers such power on the High Court.

The registration and concomitant certification of Trusts is not a mere matter of form but is one of substance.

In Zimbabwe, the process is governed by the Deeds Registries Act [Chapter 20:05].

In terms of section 5(b) as read with section 70A of the Deeds Registries Act, it is preceded by an examination of the deed or other documents submitted to the Registrar of Deeds for execution or registration, who may, for prescribed reasons, reject the documents and therefore the registration and certification of the Trust.

The registration and certification is then undertaken by the Registrar of Deeds in terms of section 5(m) as read with (r1) and recorded in the appropriate register opened for that purpose in terms of section 5(w) of the Deeds Registries Act.

The specific details regarding the examination and registration are provided in the Deeds Registry Regulations RGN 349/1977, promulgated by the Minister of Justice, Legal and Parliamentary Affairs in terms section 87(1)(c1) and (2)(a) of the Deeds Registries Act.

These statutory powers are not conferred on the High Court or its Registrar, who, in any event, as this application demonstrates, would not know how to deal with such an application.

The High Court is clothed with the power to enforce the rectification of such deeds in terms of section 6(b)(ii) and (v) of the Deeds Registries Act against a recalcitrant interested person. This is in addition to the power to cancel real rights in land provided for in section 8(1) of the Deeds Registries Act.

The registration and certification by the Registrar of Deeds has the imprimatur of law.

Indeed, section 24(1) and (2) of the Interpretation Act [Chapter 1:01] confers and imposes on a regulatory authority, such as the Registrar of Deeds, the necessary powers, jurisdiction, or right to effectuate the powers bestowed upon it by its enabling enactment.

The applicant was, in the same vein, thus, given the power to activate the provisions of the Trust Deed by the registration thereof by the Registrar of Deeds. It did not require any added legitimacy to operate from the High Court or its Registrar.

It, therefore, lacked a cause of action to approach the High Court to seek the relief that was initially granted on 2 January 2020 and duly revoked on 15 September 2020: see Wector Enterprises (Pvt) Ltd v Luxor (Pvt) Ltd SC31-15.

SI187 of 2019 was promulgated in terms of section 57 of High Court Act. The section provides that:

“57 Regulatory power to fix fees

The Minister may make regulations providing for the fees which shall be payable in respect of instruments, services or other matters received, issued, provided or otherwise dealt with by the Registrar or Sheriff or any other officer to the High Court in the course of his duties or in the office of such officer.”

Paragraph 12 of the Schedule to the Fees enactment covers the instruments, services, or other matters received, issued, provided or otherwise dealt with by the Registrar or Sheriff or any other officer to the High Court in the course of his or her duties.

The only registration certificate that is issued by the Registrar I am aware of is the certificate of registration as a legal practitioner, conveyancer, and notary public.

This is issued in terms of section 5(1) of the Legal Practitioners Act [Chapter 27:07] to persons who qualify to be so registered.

In terms of section 3(1) of the Legal Practitioners Act, the Registrar is mandated to keep a register of registered legal practitioners. Coincidentally, the Registrar of Deeds is also mandated to keep such a register by section 59 of the Deeds Registries Regulations, RGN 349/1977.

It is not part of the legal duties and responsibilities of the Registrar of the High Court to register certificates of registration of Trusts. The Regulations thus made in terms of section 57 of the High Court Act would, therefore, not apply to such registrations.

Lastly, counsel for the applicant sought to link paragraph 12 to the Schedule of S.I.187 of 2019 to the inherent power of the High Court to determine controversies between litigants, which is codified in section 13 of the High Court Act.

It seems to me, that, the inherent power of the High Court, if any, to register Trusts has been attenuated by the Deeds Registry Act.

This is patently clear from the opening words of section 13 of the High Court Act “subject to this Act and any other law” which subordinates the inherent powers of the High Court, inter alia, to any other law.

The exercise of the High Court's inherent jurisdiction over the registration and certification of Trusts is, therefore, made subject to the provisions of the Deeds Registries Act by the opening words in section 13 of the High Court Act.

In the circumstances, I am satisfied that the vacated order was erroneously sought and erroneously granted in the absence of a party affected by it.

I, therefore, find the prospective first ground of appeal will unlikely succeed on appeal....,.

On 13 April 2021, the applicants filed a chamber application for condonation and extension of time to appeal in terms of Rule 61 as read with Rule 43 of the Supreme Court Rules 2018.

It is opposed by the first respondent.

They seek the following relief:

1. The application for condonation and non-compliance with Rule 60(2) of the Supreme Court Rules 2018 be and is hereby granted.

2. The application for extension of time within which to file and serve a notice of appeal in terms of the Rules be and is hereby granted.

3. The applicants shall file their notice of appeal within five (5) days after the date this order is granted.

4. Each party shall bear its own costs.

The deponent to the applicants founding affidavit was their legal practitioner of record by reason of his intimate involvement in the matter and the purely procedural nature of the relief sought.

The legal practitioner has acted in that capacity from the time the two challenged the termination of their employment before a labour officer on 20 November 2015, in the confirmation proceedings before the Labour Court on 18 November 2016, and in the three false starts that this matter has had in this Court in SC566/17 (an appeal), SC743/17 (application for striking of the appeal by the first respondent) and SC1089/17 (an application for joinder by the first respondent).

The two applicants were formerly employed by the first respondent as a Procurement Director and General Manager, respectively.

The first respondent (the employer) is a confectionery company incorporated in Zimbabwe, which is no longer trading. It has, however, been succeeded by Innscor Africa Ltd t/a Baker Inn Bakeries.

The second respondent is the labour officer who heard the dispute between the parties and sought confirmation of his ruling in the Labour Court in November 2016.

The first applicant and the employer purportedly concluded a consensual written agreement of termination of employment on 5 June 2014.

The agreement was alleged to have been brokered by Owen Murumbi, the former Finance and Human Resources Director of the employer.

The two parties signed the agreement and Owen Murumbi also appended his signature as a witness to the agreement.

The first applicant regards the termination to be a retrenchment process.

The second applicant was retrenched with the approval of the Retrenchment Board (the Board) on 5 December 2014.

He signed a retrenchment agreement in which, in paragraph 5, he absolved the first respondent from any further claims arising from the retrenchment process.

The two applicants were aggrieved by the entire retrenchment process.

They requested the labour officer to adjudicate a case of unfair dismissal and non-payment of employment benefits. The labour officer dismissed their claim in his draft ruling on 2 September 2016.

He provisionally held, that, the termination in respect of the first applicant was by mutual consent. He found that mutual consent was depicted by, firstly, the signatures of the first applicant and his witness; and, secondly, by the first applicant's unequivocal acceptance and consumption of the terminal package.

Regarding the second applicant, he found that he had been properly retrenched in accordance with the relevant statutory dictates of the Labour Act.

He also found the second applicant's specific disclaimer against the first respondent, in respect of any prospective claims arising from the retrenchment process, and his unequivocal acceptance and utilization of his substantial retrenchment benefits, to be inconsistent with the challenge before him.

He further found that both applicants had, by their acceptance without reservation, and further utilization of the terminal benefits, waived their legal right to challenge their respective termination processes.

Lastly, he declined to assume jurisdiction in respect of the Share Subscription Agreement on two bases:

(i) The first was that the first applicant had failed to establish that the agreement was concluded with his employer.

(ii) The second was that it had a reservation arbitration clause.

Thereafter, the labour officer sought confirmation of his draft ruling at the Labour Court on 16 November 2016.

The Labour Court confirmed the ruling on 19 May 2017.

It specifically found, that, by virtue of their seniority in the first respondent, the applicants must have knowingly waived their rights to challenge their respective terminations by the acceptance without reservation, and by the consumption of their terminal packages.

It also confirmed that the labour officer lacked the jurisdiction to deal with the Share Subscription Agreement as it was a contractual and not a labour issue....,.

A court considers the extent of the delay, reasonableness of the explanation for the delay, prospects of success and importance of the case, respondent's interest in the finality of his judgment, convenience of the court, and avoidance of unnecessary delay in the administration of justice.

However, it is trite that the main requirements for an application of this nature are the extent of the delay, the reasonableness of the explanation for the delay, and the prospects of success: see Ester Mzite v Damafalls Investments (Private) Limited SC21-18.

The Labour Court refused to confirm the proceedings on 19 March 2017. Leave to appeal was granted by that court on 9 July 2017. The appeal should have been filed by 15 August 2017.

The present application was filed on 20 April 2021.

It is common cause that this period, which is in excess of three (3) years and eight months, is inordinate.

The real reason for the delay was that the applicants were prevailed upon by this Court to withdraw the appeal on 22 February 2018. The applicants withdrew the appeal because they accepted the misconception that confirmation proceedings that they sought to impugn were a nullity by reason of lack of jurisdiction by the Labour Court to confirm a draft ruling made against an employee by a labour officer.

That view was subsequently affirmed by this Court in Drum City (Pvt) Ltd v Brenda Garudzo SC57-18 at paragraphs [12] and [13].

It was, however, authoritatively jettisoned by the Constitutional Court in Isoquant Investments (Private) Limited t/a ZIMOCO v Memory Darikwa CC06-20 at p25.

The applicants have always been desirous to test the correctness of the judgment appealed against but for the mis-interpretation of the relevant provision of the Labour Act by this Court.

This is demonstrated by their desperate attempt, in March 2018, to appeal the confirmation in the Labour Court under the mistaken belief that it had reverted to being the decision of the labour officer.

I would have accepted the explanation on the misconstruction of the jurisdiction of the Labour Court by this Court to have been a reasonable explanation for the delay had the applicants filed the present application soon after the reasons for judgment were availed in Isoquant Investments (Private) Limited t/a ZIMOCO v Memory Darikwa CC06-20, in June 2020.

The applicants, however, justified their failure to file the application soon after the Isoquant Investments (Private) Limited t/a ZIMOCO v Memory Darikwa CC06-20 judgment on the COVID 19 induced lockdowns.

The endemic lockdowns resulted in the closure of court operations between 30 March 2020 and 11 May 2020 and 5 January 2021 to 1 March 2021. During this period, only urgent matters were set down, heard, and determined.

The courts were, however, in full session between 11 May 2020 and 4 January 2021 and between 1 March 2021 and the date on which the applicants filed the present application on 12 April 2021.

There was no legal impediment against the filing of the application immediately the reasons for judgment were delivered in Isoquant Investments (Private) Limited t/a ZIMOCO v Memory Darikwa CC06-20.

The applicants did not proffer any reasonable explanation as to why they failed to lodge the present application during these periods.

My overall finding is, therefore, that the explanation given for the delay was unreasonable.

I agree with counsel for the first respondent, that, the applicants failed to provide a reasonable explanation for the inordinate delay.

The three main factors are not individually decisive in granting the indulgence sought by the applicants.

The remarks of SANDURA JA in Kodzwa v Secretary for Health & Anor 1999 (1) ZLR 313 (S) are worth repeating. He stated that:

“Whilst the presence of reasonable prospects of success on appeal is an important consideration which is relevant to the granting of condonation, it is not necessarily decisive. Thus, in the case of a flagrant breach of the Rules, particularly where there is no acceptable explanation for it, the indulgence of condonation may be refused, whatever the merits of the appeal may be.”

In the present case, strong prospects of appeal may be the determinant factor....,.

I proceed to deal with the merits of the matter for the sake of completeness.

In our law, a serious misdirection on the facts amounts to a misdirection in law: see National Foods Limited v Magadza SC105-95.

In Hama v National Railways of Zimbabwe 1996 (1) ZLR 664 (S)…, KORSAH JA explained the basis for this principle in the following words:

“…, a misdirection is nothing more than an error in law made by a judge in his charge to a jury. I must, however, add this rider: there can be misdirection as to the law applicable to the case being tried; and there can be misdirection as to the evidence in the case.

For an appellant to avail himself of a misdirection as to the evidence, the nature and the circumstances of the case must be such that it is reasonably probable that the Tribunal would not have determined as it did had there been no misdirection; in other words, that the determination was irrational…,.

The general rule of the law, as regards irrationality, is that an Appellate Court will not interfere with a decision of a trial court based purely on a finding of fact unless it is satisfied, that, having regard to the evidence placed before the trial court, the finding complained of is so outrageous in its defiance of logic or of accepted moral standards that no sensible person who had applied his mind to the question to be decided could have arrived at such a conclusion.”

And, irrationality has subsequently been found to exist by this Court in Barros & Anor v Chimphonda 1999 (1) ZLR 58 (S)…,.:

“If the primary court acts upon a wrong principle; if it allows extraneous or irrelevant matters to guide or affect it; it if it mistakes the facts; (or) if it does not take into account some relevant consideration.”...,.

The last ground of appeal seeks to assail the refusal a quo to assume jurisdiction over the non-payment of the value of shares purportedly allotted to the first applicant by the first respondent.

It was common cause that the first applicant's claim was based on a purported verbal agreement he concluded with the Managing Director of the first respondent. The first applicant averred that the Managing Director agreed to allocate a portion of his own shares in the first applicant to him.

He claimed the value of these shares before the labour officer and on confirmation a quo.

The court a quo, like the labour officer, held that the dispute over shares was not a dispute of right arising from the employment contract between the parties.

In any event, in terms of the Share Subscription Agreement, any dispute arising therefrom was to be resolved by arbitration before an arbitrator specifically appointed for that purpose whose decision would be final and binding.

The issue could not be resolved by a labour officer, at conciliation, or by the Labour Court, at confirmation.

Again, there is no likelihood of success in respect of that ground on appeal.

The two matters were consolidated to avoid conflicting judgments as the two matters involving the same parties, and same issues, were ready for arguments at almost the same time before different judges.

At the hearing of the two matters, counsels for the parties did not make oral submissions but agreed that the two matters be decided on the papers filed of record.

The following is the background to the two matters.

Upenyu and Blessing Mashangwa (the Mashangwas) are husband and wife respectively. They are members of the United Family International Church (UFIC).

Emmanuel and Ruth Makandiwa (the Makandiwas) are also husband and wife respectively. The Makandiwas are leaders (prophet and prophetess respectively) of United Family International Church (UFIC).

In case HC7214/18 the Mashangwas filed summons in this Honourable Court containing six claims against the Makandiwas and the United Family International Church for a total sum of US$6,535,000 to be paid jointly and severally, the one paying the other to be absolved.

In their declaration, the Mashangwas claimed that:

(1) In the year 2012, at Harare, and in church, the Makandiwas fraudulently and misrepresented to the Mashangwas that anyone with a bank debt or loan was to be cancelled as it was the season of miraculous cancellation of debts after the Makandiwas were informed, privately, that the Mashangwas had an existing ZB Bank loan to the tune of US$500,000.

As a result of the misrepresentation, the Mashangwas were induced not to pay the ZB Bank loan, and, in the result, the Bank executed on the Mashangwas property being 14 Edinburgh Road, Harare for $500,000 thereby losing their house valued at $700,000.

(2) In the same year, the Makandiwas misrepresented, in church, that one Tichaona Mawere was a great lawyer who would not lose a case, when, in fact, Mr Tichaona Mawere was an unregistered legal practitioner.

Acting on the misrepresentation, the Mashangwas handed over their McDowell file to the said Tichaona Mawere for a claim of US$1,698,000 and expended in fees an amount of US$37,000. Tichaona Mawere then produced fake court orders and the Mashangwas lost a total sum of US$1,735,000.

(3) In the years ranging from 2014 to 2016, the Mashangwas were called on stage, in church, by the Makandiwas and were announced as a successful example in their Ministry (UFIC).

Acting on this misrepresentation, the Mashangwas made various direct contributions to the Makandiwas and the church money amounting to US$1,100,000.

(4) The Mashangwas were also paraded in church, on the stage, by the Makandiwas, as the chosen people by God to have succeeded in business.

As a result of the misrepresentation, the Mashangwas marketed the Makandiwas prophecies to the tune of US$2,000,000.

(5) and (6) In claims (5) and (6), they alleged that the Makandiwas defamed them thereby destroying their reputation and causing monetary loss to the tune of USD500,000.

Having been served with the summons, the Makandiwas entered appearance to defend the claims.

They proceeded to address a letter, in terms of Rule 140 of the High Court Rules 1971, to the Mashangwas pointing out that the claims were vague and embarrassing and that they did not disclose a cause of action, and asked whether they were suing in contract or delict; and, as regards claim (5) and (6) asked whether the claims were in defamation or injuria.

The Mashangwas did not respond to the letter, causing the Makandiwas to file an exception on 30 August 2017 to the Mashangwas pleadings in terms of Order 21 Rule 137(1)(b) in case HC7214/18.

The exception was heard on 6 November 2017 by MANGOTA J in respect of all the six claims but was dismissed on 12 January 2018 and the Mashangwas were ordered to amend their declaration in respect of claims (5) and (6), and, the Makandiwas to plead, and thereafter, the matter was to proceed in terms of the High Court Rules 1971.

However, after the dismissal of their exception, the Makandiwas filed another court application on 23 February 2018 for the dismissal of the Mashangwas claims in terms of Order 11 Rule 75(1) of the High Court Rules 1971 in HC1774/18.

The Mashangwas, having felt that the Makandiwas had neglected or failed to timeously prosecute the court application which they instituted under case HC1774/18, filed a chamber application for dismissal on 8 May 2018 under HC4197/18.

Both applications were ready for hearing at almost the same time, before different judges, hence the consolidation of the two applications.

This court is therefore being asked to decide two issues simultaneously:

(i) The first issue is whether the Makandiwas application should be dismissed for want of prosecution as prayed for by the Mashangwas in HC4197/18.

In the event of this court granting the relief asked by the Mashangwas, this would be the end of the matters and this court will not deal with the Makandiwas application.

(ii) However, in the event that this court dismisses the Mashangwas application for dismissal, the court will proceed to deal with the second issue pertaining to the Makandiwas application for dismissal of the Mashangwas claims in the main case under HC7214/17....,.

After the dismissal of their exception in HC7214/17 the Makandiwas pleaded to the main case and filed this application for summary dismissal of the principal case as being frivolous and vexatious in terms of Order 11 Rule 75(1) of the High Court Rules 1971 (the Rules).

The principal case contained the six claims brought against them by the Mashangwas as outlined above. I shall endeavor to deal with each of the claims where possible.

Suffice to state, at this stage, that Rule 75 of the High Court Rules provides that:

“75 Application for Dismissal of Action

(1) Where a defendant has filed his plea, he may make a court application for the dismissal of the action on the ground that it is frivolous or vexatious.

(2) A court application in terms of subrule (1) shall be supported by affidavit made by the defendant or a person who can swear positively to the facts or averments set out therein, stating that in his belief the action is frivolous or vexatious and setting out the grounds for his belief.

(3) A deponent may attach to his affidavit, filed in terms of subrule (2), documents which verify his belief that the action is frivolous or vexatious.”

In their supporting affidavits, the Makandiwas prayed that the principal case must accordingly be summarily dismissed pursuant to Rule 75(1) of the High Court Rules, and contended, among other things, that the action in the principal case is not only both frivolous and vexatious, but also a self–evident gross and contemptuous abuse of the process of this court on the bases that -

“1. The plaintiffs have deliberately pleaded and founded their purported causes of action on deliberate and easily demonstrable falsehoods;

2. Each of the six (6) claims suffers from predictable failure and so groundless that no reasonable person could ever hope to obtain relief therefrom;

3. The principle case has not been brought with the bona fide intention of obtaining relief;

4. The proceedings have been brought with the sole and mala fide intention of annoying and harassing us. It as such amounts to the unmitigated abuse and contempt of this court and the process thereof; and

5. The principal case is inconsistent with reason and common sense, and, as such, unworthy of serious consideration.”

The respondents (the Mashangwas) opposed the application. They took seven points in limine. The points were:

(1) Matter passed in rem judicatam;

(2) Estopel;

(3) Disputes of fact;

(4) Unlawful reversal of order of proceedings;

(5) Attempt to avoid the consequences of a valid acknowledgement;

(6) Mala fides and abuse of court process; and

(7) Provisions of the Rules not available to applicants.

On the merits, they contended, among other things, that, Mr Makandiwa is a common fraudster, a false prophet who has no relationship with God, is a liar who lied about a lawyer called Tichaona Mawere, and many other ills.

The court will briefly look at the points in limine raised by the respondents.

The contention by the respondents is that another court (MANGOTA J) has already made a determination on the issue and the applicants have not appealed against that determination. The applicants are effectively asking a judge of this court to review a judgment issued by a judge of parallel jurisdiction. They said this matter has passed in rem judicatam and the exercise of function by this court has already ceased.

What the respondents are failing to understand is that MANGOTA J dealt with an exception in terms of Order 21 Rule 137(1)(b) of the rules of this Honourable Court wherein the complaint was that there was no cause of action or that the particulars of claim were vague and embarrassing and needed correction.

MANGOTA J's judgment did not relate to the facts. The judgment called the respondents to plead to the merits.

In City of Harare v D & P Investments (Pvt) Ltd & Anor 1992 ZLR 254 (SC) the court said:

“An exception is plainly an 'answer to the plaintiff's claim' or, for that matter, to the defence raised. Its main purpose is to obtain a speedy decision upon a point of law apparent on the face of the pleading attacked and so settle the dispute in the most economical manner by having the faulty pleading set aside.”

An exception does not investigate the facts.

The veracity of the facts was not before MANGOTA J.

The current application is an application for summary dismissal of the claim in terms of Order 11 Rule 75(1) of the High Court Rules on the basis that the claims were frivolous and vexatious.

The application does not raise the same issues as were before MANGOTA J.

Issues before MANGOTA J were technical and preliminary legal objections without going into the merits.

In my view, the requirements of both applications are totally different though they involve the same parties.

It does not mean a decision made under either of the Rules automatically affects the other.

The law makers, in enacting the two Rules, and in their wisdom, were cognizant of the different reliefs to be granted under each Rule; for example, the respondents were being asked to put values of the prejudice in claims (5) and (6).

If the respondents had complied and responded to the letter of complaint written by the applicants in terms of Rule 140 of the High Court Rules, this matter probably could not have gone this far.

In the current application, the relief being sought is a summary dismissal of the claims.

For that reason, it cannot be said this matter has passed in rem judicatam and the exercise of function by this court has already ceased.

While the applicants may have appealed against the decision of MANGOTA J, they were not barred from invoking Rule 75(1) of the High Court Rules.

I therefore dismiss this point in limine.

This appeal essentially requires this court to determine whether the court a quo would have jurisdiction to review the recommendations of the second, third, and fourth respondents and the subsequent decision of the first respondent - especially considering that the decision of the first respondent completed the process of the removal of the appellant from office.

For different reasons than those advanced by the court a quo, I conclude, in light of the relief sought by the appellant in respect of the first respondent's decision, and the apparent failure to plead a proper jurisdictional basis, that, the High Court would not have the requisite jurisdiction to set aside the first respondent's decision.

Once it is accepted, that, the court a quo would not have had complete jurisdiction over the application that was before it, this appeal cannot succeed.

The next important inquiry would be the appropriate order to be made....,.

In Chombo v National Prosecuting Authority & Ors SC158-21, the court struck the appeal off the roll because it was based on a decision reached without jurisdiction. In other words, no appeal could lie against a decision marred by lack of jurisdiction....,.

The court a quo did not exercise jurisdiction on the merits of the application...,.

The instant appeal is restricted to the question of the court a quo's findings on its lack of jurisdiction....,.

Having found that, indeed, the court a quo had no jurisdiction, this appeal cannot be allowed. It must accordingly fail, and, as such, the appropriate order is the dismissal of the appeal....,.

The appeal is dismissed with each party to bear its own costs.

This is an appeal against a judgment of the Labour Court dismissing the first appellant's, a labour officer, application for confirmation.

The ruling was in favour of the second appellant, a former employee of the respondent, who was dismissed from employment sometime in March 2016 on allegations of certain acts of misconduct, including theft and/or fraud.

At the hearing of the appeal, we allowed the appeal and issued an order in the following terms:

IT IS ORDERED THAT:

1. The appeal be and is hereby allowed with no order as to costs.

2. The proceedings before the Labour Officer and the Labour Court be and are hereby set aside.

2.1 The matter is remitted to the Labour Court to be heard as an appeal against the decision of the Designated Appeals Officer in terms of section 92(1) of the Labour Act.

3. The second appellant herein shall file his Notice of Appeal to the Labour Court within 15 days from the date of this order.

3.1 Thereafter, the matter shall proceed in terms of the Labour Court Rules.

We indicated that reasons for judgment would follow. These are they.

The second appellant was employed by the respondent as an Administration Clerk in charge of cash sales. He was in the respondent's employ for a period running from May 1998 until March 2016 when he was dismissed from employment following allegations of misconduct.

The background relating to the dismissal is the following:

On 29 February 2016, the second appellant was issued with a charge letter detailing the grounds upon which the misconduct charges were premised. He was charged with theft or fraud in breach of section 4(d) of the Labour (National Employment Code of Conduct) Regulations, 2006 (S.I.15/2006), also commonly known as the Model Code of Conduct.

It was alleged, that, sometime in October to November 2015, he was assigned, by management, to backstop one Shayne Mbizi who was going on leave, and, that, during the course of that period the appellant failed to account for R1,780 and USD600 respectively.

The respondent alleged that during the period in issue, the second appellant had:

(a) On 29 October 2015, been given a cash sales book together with sales for that day. Among those sales was R1,780 as per receipt number 018461. The said amount was neither posted onto the daily cash book nor was it banked with the cash office as per the company practice.

(b) On 2 November 2015, received USD1,200 in cash sales but had only posted USD1,000 onto the cashbook. In terms of receipt number 018529, received a cash sale of USD286 but only USD186 was posted onto the cashbook.

(c) On 16 November 2015, posted USD120 from receipt number 018538 valued at USD220, and, as a result, USD100 was not remitted to the cash office.

(d) On 18 November 2015, a receipt number in the name of a client, one Thomas Knowledge, indicated a cash payment of USD546 but only USD446 was posted onto the cash sale.

In response to the charge letter, the second appellant accepted indebtedness of the USD600, and, as far as the issue of the missing R1,780 was concerned, he requested that further investigations be conducted.

Pursuant to the charges, disciplinary proceedings were conducted wherein the second appellant was found guilty and dismissed from employment.

An internal appeal was lodged to the Appeals Committee which upheld the decision of the disciplinary authority.

Thereafter, the second appellant approached the Ministry of Public Service, Labour, and Social Welfare with a complaint of unfair dismissal.

The parties then appeared before the first appellant for conciliation.

They reached a stalemate, which led to the subsequent issuance of a Certificate of No Settlement.

The first appellant, the labour officer, then proceeded to deal with the matter in terms of section 93(5)(c) of the Labour Act [Chapter 28:01].

Before the labour officer, the second appellant raised six grounds of appeal in which he contended, that, he had been wrongly accused of the said charges. He further argued, that, the acknowledgment of debt, which he is said to have purportedly written, was fabricated. In his final submissions, the second appellant argued, that, these charges were a ploy by the respondent to deprive him of his retrenchment package.

The respondent opposed the second appellant's case in all material respects.

Following the arguments, the labour officer made a ruling in favour of the second appellant. She overturned the decision of the Disciplinary Committee on the basis, that, the respondent had failed to prove its case beyond a reasonable doubt. In arriving at this decision, reliance was placed on the case of Astra Industries Ltd v Chamburuka SC27-12.

The labour officer consequently ordered the reinstatement of the second appellant without loss of salary and benefits.

It is this ruling which was subject of confirmation before the court a quo in terms of section 93(5a) and (5b) of the Labour Act.

The application for confirmation was opposed.

The issue for determination before the court a quo was whether or not the second appellant was unfairly dismissed.

Contrary to the findings of the labour officer, the court a quo held that the onus of proof in disciplinary proceedings was on a balance of probabilities.

The court a quo held, that, the labour officer had erred in placing reliance on Astra Industries Ltd v Chamburuka SC27-12.

In assessing the charge, on a balance of probabilities, the court a quo found that there was no unfair dismissal and proceeded to dismiss the application for confirmation.

Aggrieved by the decision of the court a quo, the second appellant noted an appeal to this Court on the following grounds:

“(a) The court a quo erred on a point of law in finding, that, the second appellant (the employee) had the onus to prove the admitted fact, that, in compiling the electronic cash book, he had relied only upon the cashier's handwritten notes.

(b) Further, the court a quo erred on a point of law in not finding that the respondent had failed to prove the essential elements of theft or fraud.

(c) Further, the court a quo misdirected itself in interfering with the labour officer's factual findings which had not been proved to be irrational or grossly unreasonable.”

Although the labour officer was cited as the first appellant she has not participated in this appeal nor has she filed any documents.

That is the proper way of dealing with the dispute, as she is not a litigant.

She would only have filed the application for confirmation in compliance with the law. She would therefore have no interest in the matter and we heard the appeal in her absence.

In his heads of argument, the second appellant argued, that, the court a quo erred in holding that he, the second appellant, had the onus to prove an admitted fact.

The appellant argued, that, the nature of the court a quo's misdirection in that regard was such that the conclusion arrived at by the court a quo was per incuriam.

The appellant further argued, that, the court a quo erred when it failed to make a finding that the respondent had failed to prove the essential elements of theft or fraud.

It was his argument that the respondent failed to prove its case, even on a preponderance of probabilities, and, as such, the court a quo ought not to have found in its favour.

In his final submissions, the appellant averred that the court a quo misdirected itself when it interfered with the factual findings of the labour officer without a finding of irrationality on the part of her decision.

Per contra, the respondent argued that the key issue for determination was whether or not the court a quo had erred in making its decision.

The respondent argued, that, the burden of proof in labour proceedings was proof on a balance of probabilities; therefore, the appellant had failed to interpret the position in Astra Industries Ltd v Chamburuka SC27-12.

It further argued, that, what determines where the onus of proof lies is the person who makes the allegations. In casu, the respondent argued, that, it was the appellant making the allegations, and, therefore, on principle, he must be able to prove the point.

The respondent further argued, that, the court a quo was not in error, as such, the appeal ought to be dismissed with costs.

Although the parties have made arguments on the merits, it is our view that a more fundamental issue, pertaining to the procedure adopted by the parties, including the labour officer, in the resolution of the matter, arises in this case.

It is imperative to note, that, a claim for unfair dismissal was brought by the second appellant in terms of SI 15/2006 subsequent to the dismissal of an appeal by the appeals authority.

The court notes, that, the disciplinary authority, when hearing the matter, made factual findings which were confirmed by the designated Appeals Officer.

It is against this background that the court takes the view, that, a properly considered critical analysis of the proceedings before the labour officer, under section 93 of the Labour Act, be made to establish whether or not those proceedings in question were properly before the labour officer in the first place.

In that regard, the issues that arise for determination are the following:

(i) The ambit of the jurisdiction of a labour officer, under section 93 of the Labour Act, where a matter is referred to him or her in terms of section 8(6) of the Labour (National Employment Code of Conduct) Regulations S.I. 15 of 2006, otherwise referred to as the Model Code of Conduct; and

(ii) Consequent thereto, whether or not the subsection is consistent with sections 101 and 92D of the Labour Act [Chapter 28:01] (the Act) as well as section 12B thereof.

We are indebted to counsel for undertaking further research and submitting additional written submissions to the court so that clarity on this issue may be achieved.

Counsel for the appellant made the following submissions:

He submitted that sub-section (6) of section 8 of the Labour (National Employment Code of Conduct) Regulations S.I. 15 of 2006 (the Model Code of Conduct) is inconsistent with sections 92D and 101(5) of the Labour Act [Chapter 28:01].

In this regard, he sought reliance on the authorities of Mwenye v Lonrho Zimbabwe Ltd 1999 (2) ZLR 429 (S) and Watyoka v Zupco (Northern Division) 2006 (2) ZLR 170 (S).

In consequence thereto, he has submitted that due to the inconsistency, subsection (6) of section 8 of the Labour (National Employment Code of Conduct) Regulations S.I.15 of 2006 (the Model Code of Conduct) should be struck down.

On the other hand, counsel for the respondent has argued an alternative position to that presented by counsel for the appellant.

He urged the court to find, that, there is in fact no conflict between the provisions of the Labour Act and the Labour (National Employment Code of Conduct) Regulations S.I.15 of 2006 (the Model Code of Conduct).

Further to the above, counsel has urged the court to find that a labour officer has the requisite jurisdiction to deal with a matter referred to him on the basis that a dismissal has been effected in contravention of section 12B(3) of the Labour Act.

Although the issues for determination in this appeal emanate from a reference of an unfair dismissal under section 8(6) of the Labour (National Employment Code of Conduct) Regulations S.I.15 of 2006 (the Model Code of Conduct), the enabling legislative provision for such reference is section 101 of the Labour Act, in particular subsections (5) and (6) thereof.

The law provides:

“(5) Notwithstanding this Part, but subject to subs (6), no labour officer shall intervene in any dispute or matter which is or is liable to be the subject of proceedings under an employment code, nor shall he intervene in any such proceedings.

(6) If a matter is not determined within thirty days of the date of the notification referred to in paragraph (e) of subs (3), the employee or employer concerned may refer such matter to a labour officer, who may then determine or otherwise dispose of the matter in accordance with section ninety-three.”

The Labour Act has been subjected to numerous amendments ever since it was initially promulgated as the Labour Relations Act [Chapter 28:01], ultimately ending as the Labour Act as it is currently known.

For some reason, section 101 of the Labour Act has remained in the same format as it was, with minor amendments which are not pertinent for the resolution of this dispute.

Subsections (5) and (6) have been considered by this Court in order to ascertain what it is that a labour officer is empowered to do or determine upon reference of a matter to such labour officer in terms of section 101(5) or (6) of the Labour Act.

Section 101(5), under the former Labour Relations Act, was considered by this Court in Mwenye v Lonrho Zimbabwe 1999 (2) 429 (S). At 433C-434B, GUBBAY CJ remarked as follows:

“Section 93(1) vests in a labour relations officer a general jurisdiction to deal with any dispute, either on his own initiative or on reference to him by one of the parties. Section 101 of the Act (then as s117A) was introduced on January 1, 1993 by the Labour Relations Amendment Act 12 of 1992. It then became possible for an employment code of conduct, binding in respect of a particular industry, undertaking, or workplace, to be registered; provided it contained the matters specified in s101(3) of the Act….,.

Against this background, it does not seem to me that the legislative objective introducing the new procedure was to relieve labour relations officers of the burden of determining disputes. It was rather to return to the employee and employer a greater degree of autonomy with regard to the determination of their disputes than previously enjoyed.

Section 101(5) of the Act is, in effect, an exception to section 93.

It is a provision designed for the benefit of the parties. As long as the dispute or matter is: (a) the subject of proceedings under a code; or (b) liable to be the subject of proceedings under a code; no labour relations officer may intervene.

His power to determine or otherwise dispose of the matter under section 101(6) is placed in abeyance for a period of thirty days. This is to afford the parties, should one of them so wish, the opportunity to utilize the internal mechanisms specified in the code.

Consequently, if either party were to refer the matter to a labour relations officer before the expiry of the thirty day period, the other could raise section 101(5) as a defence.

On the other hand, where the parties are ad idem that their dispute is incapable of resolution under the code, or both deem it more advantageous to have it determined by a labour relations officer, then, the dispute or matter is no longer 'liable' to be the subject of proceedings under the code. It may be referred immediately to a labour relations officer.”

The import of this authority is to illustrate the ambit of the jurisdiction of the labour officer under section 93 of the Labour Act.

In other words, does a labour officer have carte blanche to deal with the matter as he sees fit or is his jurisdiction specific?

The import of these provisions was considered by this Court in Watyoka v Zupco (Northern Division) 2006 (2) ZLR 170. At p172F-173D, this Court said:

“There are, therefore, three important conditions under which such matter can be referred to a labour relations officer:

(a) The matter must not be one that is liable to be the subject of proceedings under a code of conduct;

(b) The matter has not been determined within thirty days of the date of notification; and

(c) Where the parties to the dispute request and are agreed on the issues in dispute.

Section 93(1)(ii).

In this case, there were delays in the determination of the matter due to a number of postponements at the request of the appellant. At one meeting, the appellant and his legal practitioner attended without submitting the appellant's response to the allegations. At yet another meeting, the appellant and his legal practitioner walked out before the meeting was closed, as the legal practitioner said he wanted to catch his flight and had other business to do in Harare.

When the appellant and his legal practitioner raised the issue of delay, the chairperson did point out to them that it was actually their fault, as they were responsible for the delay.

Subsection (6) of section 101 provides for a referral of the matter to a labour relations officer if it has not been determined within thirty days. It does not provide for a referral of a matter that has been determined.

The referral to a labour relations officer is a relief granted to a party who is concerned about the delay in the determination. It is not a referral intended to challenge a determination that has already been made.”…,.

And later, at p173H-174A, the court put the issue beyond any doubt and stated:

“The section cannot be read as providing for a second determination over and above the one already made by a disciplinary committee. Once there was a determination, the correct procedure was to appeal to the company's management as provided in the code of conduct.”…,.

And later still at p175B-C:

“In this case, by the time the matter was entertained by the labour relations officer, two separate provisions had ousted his jurisdiction. They were, firstly, the fact that a determination had been made, and, secondly, the dispute had prescribed in terms of section 94(1)(b), in that the allegations of unfair labour practice were raised at meetings held with the disciplinary committee in November 1997 but the labour relations officer only entertained the complaint on 6 August 1999, a period of about eighteen months, and well beyond the period of one hundred and eighty days provided in section 94(1)(b).”

Although this Court has clearly set out the procedures applicable when a matter is referred to a labour officer in terms of section 101 of the Labour Act, it is evident that the process is fraught with confusion.

In fairness to the parties involved in this debacle, the incidence of the Labour (National Employment Code of Conduct) Regulations S.I.15 of 2006 (the Model Code of Conduct) and the provisions of section 8(6) and (7) of the Model Code of Conduct might have, to a large extent, contributed to the confusion.

It is imperative, therefore, that the role of a labour officer under the enabling sections be examined.

The issue before the court is a simple one: what are the powers exercisable by a labour officer in terms of section 93 of the Labour Act?

A labour officer is not a stand-alone court or tribunal, and exercises his or her powers upon reference to him of matters or disputes.

Viewed in this context, one does not envisage any issue over the exercise of those powers under the Labour Act.

The labour officer is a creature of the Labour Act. He is imbued with certain and specified duties and obligations under the Labour Act, and, perforce, his powers are only to be exercised as defined in the Labour Act. Therefore, the jurisdiction that he is empowered to exercise, and the nature of the relief that he provides, after an exercise of such jurisdiction, must be found in the Labour Act.

It cannot emanate from any other source.

However, a ticklish question on the exercise of this jurisdiction may arise in this regard, mainly emanating from the provisions which stipulate the matters in terms of which the labour officer exercises his jurisdiction and make provision for the reference of such matters to the labour officer.

Section 93 of the Labour Act is not a stand-alone provision. It must be read with other provisions in the Labour Act or related provisions from codes of conduct. It is therefore to the Labour Act that one must look, in particular section 93(1), (2) and (3) of the Labour Act.

Section 93 of the Labour Act, as amended by Act 5 of 2015, reads:

“93 Powers of labour officers

“(1) A labour officer to whom a dispute or unfair labour practice has been referred, or to whose attention it has come, shall attempt to settle it through conciliation, or, if agreed by the parties, by reference to arbitration.

(2) If the dispute or unfair labour practice is settled by conciliation, the labour officer shall record the settlement in writing.

(3) If the dispute or unfair labour practice is not settled within thirty days after the labour officer began to attempt to settle it under ss (1), the labour officer shall issue a certificate of no settlement to the parties to the dispute or unfair labour practice.”

The question is: what dispute is a labour officer empowered to preside over in terms of section 93(1) of the Labour Act?

The clear principle that emerges from the authorities in which section 93 of the Labour Act has been considered is that his mandate is to preside over a fresh hearing wherein a complaint has been lodged against an employer or there exists a dispute between the parties.

Consequently, his jurisdiction is limited to matters where there are allegations of unfair labour practices or unfair dismissal.

Unfair labour practices are defined in section 8 of the Labour Act and include a whole host of wrongs that an employer may be guilty of in the workplace.

This is not the complaint here.

On 5 May 2016, the designated Appeals Officer advised the second appellant, in writing, that his appeal had not been successful. The latter acknowledged receipt on 9 May 2016.

On 29 April 2016, he filed a complaint with the Ministry of Public Service, Labour and Social Welfare, alleging “an unfair dismissal”.

On 3 May 2016, the labour officer notified the parties to appear before her for a hearing on 7 May 2016.

On 17 May 2016, the labour officer issued a Certificate of No Settlement.

On some unnamed date, she advised the parties to file submissions for her consideration. It is common cause that she issued a draft ruling on 5 September 2016, which ruling was the subject of the application for confirmation which was refused by the Labour Court. She stated therein that she had determined the matter in accordance with section 93(5)(c) of the Labour Act.

In his submissions before the labour officer, the second appellant made allegations that there had been a delay in the determination of his appeal - even though, at the time he lodged the complaint, he had been notified of its dismissal.

I note that he did not seek an appeal before the labour officer.

The respondent filed a response in which it responded to the complaints on the merits. It also feebly raised a point in limine on the procedure adopted by the second appellant.

The labour officer was of the opinion that the second appellant had lodged an appeal for determination by her.

This is confirmed by the labour officer making reference to the following grounds of appeal as being issues for determination before her:

“1. Wrongly accused of stealing 1,730 Rands (one thousand seven hundred and thirty rands);

2. Wrongly accused of stealing/misrepresenting US600 (six hundred dollars);

3. Withdrawal of police report;

4. Fabricated acknowledgement of debt;

5. Report to Ministry of Labour and subsequent courtesy call from M C Meats Human Resources;

6. Prejudiced of retrenchment package.”

The labour officer thereafter proceeded to analyze the facts and consider the applicable law. She then addressed the grounds of appeal.

After this exercise, she went on to quash the conviction of the second appellant on the misconduct charges and ordered that he be reinstated to his original position without loss of salary and benefits.

In making this ruling she said:

“It is clear from what has been discussed above, that, the Respondent failed to prove its case that the appellant contravened section 4(d), theft or fraud (sic) of the National Employment Code of Conduct S.I. 15 of 2006. In light of the above, the conviction of Appellant be and is hereby quashed. The Respondent be and is hereby ordered to reinstate the appellant to his original position without loss of salary and benefits from the date of dismissal within 30 days of receipt of the ruling.”

A perusal of the ruling issued by the labour officer will tend to show, that, the proceedings conducted by her were in effect an appeal against the decision of the designated Appeals Officer dismissing the second appellant's appeal against the findings of guilt by the disciplinary authority and the penalty of dismissal meted out as a result.

Undoubtedly, she was acting as an appeal tribunal.

A simple reading of the subsections of section 93 of the Labour Act set out above gives the reader the impression, that, when a labour officer deals with a matter or a dispute which has come to him in terms of section 93(1) of the Labour Act, it is a matter where the labour officer must conciliate on the dispute.

At this stage, all that a labour officer is obliged to do under the Labour Act is to attempt to bring the parties to a stage where a settlement is achieved.

Thus, the proceedings before the labour officer, under section 93(1) of the Labour Act, constitute the first step towards achieving a resolution of the dispute. His office is the body under the Labour Act that is tasked with the receipt of the initial complaint of an unfair labour practice or disputes for conciliation as provided under the subsection.

There is no suggestion therein that he is empowered to sit as an appeal or review tribunal over completed disciplinary proceedings conducted at the workplace.

In casu, since the disciplinary proceedings against the appellant were conducted under the aegis of the Labour (National Employment Code of Conduct) Regulations S.I.15 of 2006 (the Model Code of Conduct) it stands to reason that the matter was referred to a labour officer in accordance with the provisions of the same.

Section 8(6) and (7) of the Labour (National Employment Code of Conduct) Regulations S.I.15 of 2006 provide as follows:

“(6) A person or party who is aggrieved by a decision or manner in which an appeal is handled by his or her employer or the Appeals Officer or Appeals Committee, as the case may be, may refer the case to a Labour Officer or an Employment Council Agent, as the case may be, within seven working days of receipt of such decision.

(7) The Labour Officer or an Employment Council Agent to whom a case has been so referred shall process the case as provided for under section 93 of the Act.”

Section 8 of the Labour (National Employment Code of Conduct) Regulations S.I.15 of 2006 (the Model Code of Conduct) is concerned with the respective parties rights in a disciplinary process to appeal against a determination made in terms of the Code.

Provision is made in the section for internal processes of appeal against determinations of formal tribunals at the workplace.

To be fair, a simple reading of the above statutory provisions would appear to suggest, that, a reference to a labour officer, or an Employment Council Agent, under the same, is an appeal.

To place the matter in its proper context, regard must be had to the provisions in the Labour Act which permit a reference to a labour officer, or an Employment Council Agent, as the case may be.

Therefore, and in addition, regard must be had to section 101(5) and (6) of the Labour Act which empower a labour officer to exercise powers inherent in such officer under section 93 of the Labour Act.

Section 93(1), (2) and (3) of the Labour Act make provision for conciliation.

To conciliate is to reconcile or make compatible. Thus, the first duty of a labour officer, in conciliation proceedings, is to attempt to resolve the dispute within thirty days after he or she began to attempt to settle the dispute.

Section 93 of the Labour Act, as a whole, does not give a labour officer the power to act as an appeal tribunal or to review the decisions of the disciplinary authority and the internal processes attendant thereto.

The finding that the labour officer had no jurisdiction to entertain the matter disposes of the issue.

In casu, it matters not that the labour officer went on to decide the matter under section 93(5) of the Labour Act after which she issued what she termed “a draft ruling”.

That is not an issue for consideration before the court as nothing turns on that ruling.

The method by which she arrived at a draft ruling is, as a result, of no consequence to the determination of this appeal.

The reason I say this is that section 93(5) of the Labour Act does not empower a labour officer to examine earlier proceedings and make a determination as to their correctness.

That said, it only remains for me to consider the relationship of section 8(6) of the Labour (National Employment Code of Conduct) Regulations S.I.15 of 2006 (the Model Code of Conduct) with section 93 and section 101 of the Labour Act.

It seems to me that section 8(6) of the Model Code of Conduct appears to be out of sync with the whole section.

It seems to suggest, that, a party aggrieved by a decision or manner in which an appeal has been conducted has a right of appeal to a labour officer in terms of section 93 of the Labour Act.

To my mind this is obviously incorrect, if regard is had to the wording of section 93 of the Labour Act.

The powers bestowed upon a labour officer under the section are confined to disputes related to unfair labour practices or unfair dismissals.

A reference under section 8(6) of the Labour (National Employment Code of Conduct) Regulations S.I.15 of 2006 cannot be defined as relating to either an unfair labour practice or unfair dismissal.

Given the scenario related above, what is it that the labour officer was presiding over?

What then is the import of section 8(6) and (7) of the Model Code of Conduct in terms of which this dispute was referred to the labour officer?

Is the reference meant to give the parties an opportunity to present their respective positions to the dispute before the labour officer afresh and for him to make a determination?

Is the labour officer exercising review or appeal powers, and, in accordance with which provision of the Labour Act?

If regard is had to the nature of the disputes that a labour officer is mandated to deal with, it becomes clear that the jurisdiction is limited to a dispute or unfair labour practice or unfair dismissal.

When one has regard to section 8(6) of the Labour (National Employment Code of Conduct) Regulations S.I.15 of 2006 (the Model Code) one may be misled into assuming that even completed disciplinary hearings should be referred to a labour officer.

It is not suggested, in the Labour Act, that the labour officer, in this context, can exercise powers of appeal or review.

In casu, a determination on the merits had been made by the disciplinary authority, as provided for in the Code of Conduct. The reference to the labour officer, in terms of section 8(6) of the Model Code of Conduct would, as a consequence, seem to be in direct conflict with the provisions of section 101(5) and (6) of the Labour Act.

And yet, under the various provisions of the Labour Act and the Labour (National Employment Code of Conduct) Regulations S.I.15 of 2006 (the Model Code of Conduct) a labour officer has been imbued with the power to entertain parties to a dispute without any apparent restriction.

The nature of the disputes he can entertain is not specifically defined. They have to be construed by reference to section 93(1) of the Labour Act in order to achieve clarity.

An exercise of power under section 93 of the Labour Act must be provided for in terms of the Labour Act itself. Reference must therefore be had to section 101 of the Labour Act, which reads in relevant part:

“101 Employment Codes of Conduct

(5) Notwithstanding this Part, but subject to subsection (6), no labour officer shall intervene in any dispute or matter which is or is liable to be the subject of proceedings under an employment code, nor shall he intervene in any such proceedings.

(6) If a matter is not determined within thirty days of the date of the notification referred to in paragraph (e) of subsection (3), the employee or employer concerned may refer such matter to a labour officer, who may then determine or otherwise dispose of the matter in accordance with section ninety-three.”

A perusal of the Labour Act will show, that, the only section providing for reference of a matter to a labour officer for intervention under section 93 is to be found in section 101(6): and yet, when read with subsection (5) of the same section, it becomes evident that the procedure adopted before the labour officer was not permitted by law.

In this context, the implications of what the labour officer did are obvious.

First, she assumed jurisdiction to entertain a matter which the law did not sanction. An appeal against proceedings under the Code can only lie to a court or a tribunal which is empowered by law to act as an Appeal Court or tribunal.

In casu, the labour officer assumed unto herself the jurisdiction that is imbued, by law, in an Appellate Court or tribunal.

A labour officer is not an appeal structure for purposes of section 93 of the Labour Act, nor can that power be read into the section no matter where the referral of a dispute or matter emanates from.

The view I take, therefore, is that a labour officer is empowered to determine complaints of unfair labour practice and unfair dismissal where there has not been any procedural process that has been completed.

His jurisdiction is limited to that of a tribunal of first instance.

There is a presumption that the Legislature does not intend to alter the law, whether it is statutory or common law, unless it provides so in specific terms. This presumption is fundamental to the interpretation of statutory provisions.

As a result, courts are enjoined, as much as possible, to construe statutes in a manner that seeks to reconcile seemingly contradictory provisions.

The appellant in this dispute was charged with misconduct in terms of the Labour (National Employment Code of Conduct) Regulations S.I.15 of 2006 (the Model Code of Conduct) after which he was dismissed from employment.

It is therefore clear to the naked eye, that, he could not lodge a complaint with the labour officer alleging unfair dismissal.

The labour officer would not have the jurisdiction to entertain any complaint from the appellant, as what the appellant was seeking was the setting aside of the determination of the disciplinary process.

She also, again without having the jurisdiction to even hear the parties, set aside findings of fact made by a tribunal of first instance without regard to settled principles by which such findings should be set aside.

These same findings of fact reached by the disciplinary authority were confirmed by the appeal structures of the respondent.

To describe the process by which this decision was reached as being irregular is mild. It is not only irregular, it was unlawful and nothing can stand on that decision.

The provisions of section 8(6) and (7) of the Labour (National Employment Code of Conduct) Regulations S.I.15 of 2006 (the Model Code of Conduct) must be read together with the Labour Act under which the statutory instrument was promulgated. Where the Code conflicts with any provision of the Act, it stands to reason that the provisions of the Act must prevail.

Section 2A(3) provides that the Labour Act shall prevail over any enactment which is inconsistent with it.

In my view, the principle emerging from all the authorities referred to above can be summarized by the statement to the effect, that, a labour officer does not have any jurisdiction, under section 93 of the Labour Act, to entertain a matter once a determination on the merits has been made through a disciplinary process under a registered Code of Conduct.

It is clear that the labour officer presided over a matter over which she did not have any jurisdiction.

As stated in Watyoka v Zupco (Northern Division) 2006 (2) ZLR 170, once there is a determination on the merits of a dispute, a labour officer has no jurisdiction under section 93 of the Labour Act. Accordingly, the subsequent procedures were a nullity as the labour officer could not subsequently purport to make factual findings on the same matter.

I conclude, therefore, that, the labour officer did not have jurisdiction to hear a complaint from the appellant, of whatever nature, and, therefore, the proceedings conducted under section 93(5)(c) of the Labour Act, by the labour officer, were, as a result, an irregularity.

In addition, the proceedings before the Labour Court, to confirm the ruling, were also a nullity.

This Court is of the view, that, the matter should have been brought before the Labour Court as an appeal.

Both counsel were in agreement with this position.

This finding has necessitated the writing of the present judgment so as to give the position that should obtain where a dispute is dealt with in terms of an employment code of conduct.

In addition it is necessary, in order that the apparent confusion that exists between the Labour Act and section 8(6) of the Labour (National Employment Code of Conduct) Regulations S.I.15 of 2006 (the Model Code), as highlighted in this judgment, be rectified; that the relevant Minister responsible for the administration of the Labour Act be appraised of the need to call upon the Legislature to align S.I 15/2006 to its parent statute, the Labour Act.

It is for the above reasons that this Court issued an order as described above.

This is an appeal against the whole judgment of the Labour Court handed down on 11 November 2022 wherein it dismissed the appellant's appeal against a decision of a Designated Agent of the National Employment Council for Rural District Councils.

The respondent was employed by the appellant as a Housing Officer. He was indicted for a disciplinary hearing on 11 November 2017 before the appellant's Disciplinary Committee. He was charged with 'committing any act or conduct inconsistent with the fulfilment of the express or implied conditions of the contract of employment' in terms of clause 8(d) of Statutory Instrument 87/2017; specifically, that, he unilaterally and unlawfully exempted some council tenants from paying rentals which resulted in the appellant losing revenue.

The Disciplinary Committee found in favour of the employer and dismissed the respondent.

He then appealed the decision to the Internal Appeals Committee which upheld the decision of the Disciplinary Committee.

Aggrieved by the decision, the respondent again appealed to the National Employment Council Exemptions Committee (“the Exemptions Committee”) which set aside the decision of the Internal Appeals Committee and referred the matter back to the Disciplinary Committee, for a hearing de novo, on the basis that the Disciplinary Committee was not properly constituted when it presided over the matter.

The matter was heard again by the Disciplinary Committee and it reached the same verdict and penalty. The respondent then appealed to the Internal Appeals Committee which, again, upheld the dismissal.

On 13 March 2018, he further appealed the dismissal to the National Employment Council Exemptions Committee (the Exemptions Committee) which heard the matter on 14 March 2018.

On the basis that the Exemptions Committee failed to conclude the matter within the time stipulated in section 14 of SI 87/17, and on 26 November 2018, the respondent wrote to the Designated Agent advising him of that fact.

Consequent to the respondent writing to the Designated Agent complaining about the failure by the National Employment Council Exemptions Committee to determine the matter within 30 days, the Exemptions Committee handed down reasons for its determination on 4 December 2018.

On 11 March 2021, the respondent filed an appeal with the Labour Court under cover of case number LC/H/57/19 seeking a referral of his appeal in accordance with clause 14(c) of SI 78/17.

He was seeking that the appeal be disposed of by the Designated Agent due to non-observance of the timelines and the lack of jurisdiction of the National Employment Council Exemptions Committee (the Exemptions Committee).

The grounds of appeal were couched as follows:

1. The Exemptions Committee erred at law in determining a matter without jurisdiction outside the prescribed thirty (30) working days and after the matter had been referred to the Designated Agent for disposal.

2. The Exemptions Committee erred at law in making a determination without providing reasons for such determination.

The respondent sought the following relief:

'(a) That the appeal succeeds with costs.

(b) That the decision of the Exemptions Committee be set aside.

(c) That the matter shall be disposed of by the Designated Agent in accordance with section 93 of the Labour Act in terms of the referral made by the appellant on 26 November 2018.'

On 22 May 2020, the Labour Court allowed the appeal under case number LC/H/57/19. It granted the following order:

“(a) That the instant appeal succeeds with costs.

(b) That the decision of the Exemptions Officer be set aside.

(c) That the matter be disposed of by the Designated Agent in accordance with section 93 of the Labour Act in terms of the referral made by the respondent.”

The respondent then approached the Designated Agent on the basis of this order of the Labour Court.

On 21 June 2021, the parties attended proceedings before the Designated Agent who advised the parties that he would proceed in terms of section 63(3a) of the Labour Act (the Act).

The parties were invited to file written submissions and the Designated Agent proceeded to pronounce on the matter on 19 October 2021.

In his determination, he made a finding that he lacked the requisite jurisdiction to preside over the matter as it raised review grounds. He, however, went on to deal with the substantive aspects of the matter and ultimately gave an order reinstating the respondent.

Disgruntled by the determination of the Designated Agent, the appellant appealed to the court a quo on 17 November 2021. The court found that the Designated Agent properly dealt with the matter.

It found that the issue of grading was before the Designated Agent and that he properly disposed of it. In addition, it found that the reinstatement of the respondent was proper as reinstatement could be ordered where the merits of the matter have not been entertained. In the result, the court a quo dismissed the appeal.

It is against this judgment that the present appeal was noted.

At the hearing of the appeal, the court asked counsel for the appellant to address the question of whether section 63(3a) as read with section 93 of the Labour Act confer appellate jurisdiction on a Designated Agent in view of the referral of an appeal to him by the Labour Court.

Counsel for the appellant submitted, that, the matter was referred for hearing before the Designated Agent as an appeal. He contended that the National Employment Council Exemptions Committee (the Exemption Committee) was seized with an appeal that it failed to conclude within the prescribed 30 days hence the appeal was then placed before the Designated Agent.

He submitted that section 63(3a) of the Labour Act does not confer appellate jurisdiction on Designated Agents, but, that a provision in SI 87/17 allows for matters not determined within the stipulated timeframe to be referred to a Designated Agent.

He asserted that Designated Agents have no such powers to hear appeals.

It was his submission that the Labour Court ought to have presided over the matter instead of deferring it to the Designated Agent. He relied on section 14 of SI 87/17 which provides that an appeal against the determination of the National Employment Council Exemptions Committee (the Exemptions Committee) lies with the Labour Court.

Counsel submitted that if a matter is not concluded within 30 days, it is then supposed to be referred to the Designated Agent who will dispose of it in accordance with section 93 of the Labour Act.

On the merits, counsel submitted that the court a quo erred in upholding the decision of the Designated Agent when he had conceded that he did not have jurisdiction, but, nonetheless, went on to deal with the substance of the matter.

In addition to this, it was his contention that the court a quo misdirected itself by upholding the appeal and reinstating the respondent without having dealt with the merits of the matter.

In this light, he moved that the matter be remitted to the Labour Court to deal with the matter on the merits and that the decision of the Designated Agent be set aside.

He also stated, that, if the respondent's contention was that his matter was not heard within 30 days, the correct procedure available to the respondent was to file an application for review and not launch an appeal as he did.

Conversely, the respondent submitted that his appeal lay with the Designated Agent in terms of section 14 of SI 87/17 given that the matter was not heard and concluded by the National Employment Council Exemptions Committee (the Exemptions Committee) within 30 days.

He was convinced that the determination of the Designated Agent, despite the absence of jurisdiction, was proper as well as the accompanying order for reinstatement. He believed that the Designated Agent has powers conferred upon him to give redress in matters such as his.

Section 63(3a) of the Labour Act provides as follows:

“(3a) A designated agent of an employment council who meets such qualifications as may be prescribed shall, in his or her certification of appointment, be authorised by the Registrar to redress or attempt to redress any dispute which is referred to the designated agent or has come to his or her attention; where such dispute occurs in the undertaking or industry and within the area for which the employment council is registered, and the provisions of Part XII shall apply, with the necessary changes, to the designated agent as they apply to a labour officer.”

It is common cause that the provision that confers power on the Designated Agent to give redress to parties is section 63(3a) of the Labour Act.

The role of a Designated Agent was explained in the judgment of Isoquant Investments (Pvt) Ltd t/a Zimoco v Darikwa CC06-20 wherein the court remarked as follows…,.:

“Section 63(3a) of the Act allows a designated agent, upon authorisation by the Registrar of Labour, to either redress or attempt to redress any dispute which is referred to the designated agent or has come to his or her attention. That is the case where such dispute occurs in the undertaking or industry and within the area for which the employment council is registered.

Section 63(3b) of the Act expressly ousts the jurisdiction of a labour officer where a designated agent is authorised to redress any dispute or unfair labour practice in terms of section 63(3a) of the Act….,.

What is key in understanding what a designated agent can or cannot do is to understand the meaning of the phrase 'redress any dispute' used in section 63(3a) of the Act.

When used as a verb, the word 'redress' according to the Oxford English Dictionary, means to remedy or set right an undesirable or unfair situation. A designated agent authorised by the Registrar of Labour redresses a dispute referred to him or her. He or she offers a remedy or sets right an unfair situation.”

In as much as the above case discusses the role of a Designated Agent, it does not expressly deal with whether or not a Designated Agent has any powers conferred upon him to deal with appeals.

From a reading of the provision, there is nothing suggesting that a Designated Agent has appellate jurisdiction.

To have an appreciation of the powers bestowed upon a Designated Agent, one has to examine what it is that the Designated Agent has to do in redressing or attempting to redress a dispute.

In Isoquant Investments (Pvt) Ltd t/a Zimoco v Darikwa CC06-20…, it was stated;

“A designated agent may only exercise one power over a dispute. He or she may redress the dispute or attempt to redress it. He or she cannot do both. If he or she chooses to redress the dispute by hearing and determining the issues in dispute, he or she cannot, at the same time, attempt to redress the dispute.

It is clear from the provisions of section 63(3a) as read with section 93(1) of the Act that a designated agent can only proceed in terms of section 93 of the Act if he or she has not redressed the dispute.

He or she would be attempting to settle the dispute through conciliation.

There can be no attempt to settle a dispute which has been redressed.

The provisions of section 93 of the Act would apply when the power to be exercised by the designated agent is an attempt to redress the dispute through conciliation.”

From the above, it is clear that a Designated Agent can do one of two things, that is;

(i) Redress a dispute by hearing and determining the issues in dispute; or
(ii) Attempt to redress the dispute through conciliation.

He cannot do both.

What is coming up from the above-quoted excerpts from Isoquant Investments (Pvt) Ltd t/a Zimoco v Darikwa CC06-20 is that the Designated Agent will be redressing or attempting to redress a dispute in a fresh hearing.

Given the above, it is apparent that a Designated Agent does not have any jurisdiction, under section 93 of the Labour Act, to entertain a matter once a determination on the merits has been made through a disciplinary process under a registered Code of Conduct.

In casu, the matter was referred to the Designated Agent by the Labour Court in terms of section 14(c) of S.I. 87/17 which provides as follows:

“Appeals to the NEC

14. The Exemptions Committee of the National Employment Council shall hear and conclude appeals referred to it within seven working days;

(a)…,.

(b)…,.

(c) An appeal against the decision of the Exemptions Committee shall lie with the Labour Court;
if a matter is not determined or concluded within 30 working days, the employee or employer concerned may refer such matter to the Designated Agent who will dispose of it in accordance with section 93 of the Labour Act [Chapter 28:01].”

The 'matter' being referred to in subsection (c), in the context of the present matter, is an appeal against the determination of the Appeals Committee.

In other words, the above provision purports to give the Designated Agent power to 'redress or attempt to redress' the determination of the Appeals Committee.

This Court, in a line of authorities, has spoken on this, that, a Designated Agent cannot preside over a matter where a determination has been made: see Watyoka v Zupco (Northen Division) SC87-05; Mabeza v Sandvick Mining (2) Construction (Pvt) Ltd & Anor SC91-19; and Living Waters Theological Seminary v Rev Chikwanha SC59-21.

These matters were analysed in the recent case of Nicholas Mukarati v Pioneer Coaches (Private) Limited SC34-22 where MATHONSI JA concluded on the issue as follows:

“The reasoning in Mabeza, supra, rhymes with that in Sakarombe N.O. & Anor v Montana Carswell Meats (Pvt) Ltd SC44-20 where the court was called upon to consider the ambit of the jurisdiction of a Labour Officer under section 93 of the Act where a matter is referred to him or her in terms of section 8(6) of the National Code of Conduct.

It concluded that under section 93(1) of the Act, a Labour Officer is only mandated to preside over a fresh hearing where a complaint has been lodged. The Labour Officer does not preside over any matter where a determination has been made or one in which completed disciplinary proceedings were conducted at the workplace.”

Although the above authorities were dealing with the powers of a labour officer, the same principle applies with equal force to a Designated Agent, as, in terms of section 63(3a) of the Labour Act “the provisions of Part XII shall apply, with the necessary changes, to the designated agent as they apply to a labour officer.”

Section 8(6) of the National Code, which was under discussion in these cases, is similarly worded to section 14(c) of SI 18/17.

Further down on the same page, MATHONSI JA observed the following:

“In fact, in Living Waters Theological Seminary v Chikwanha, supra, the court went further to state that the provisions of section 8(6) of the National Employment Code are rendered inoperative by their being ultra vires and inconsistent with the provisions of sections 93 and 101 of the Labour Act.”

The same can be said about section 14(c) of S.I. 87/17.

It is rendered inoperative by being ultra vires and inconsistent with the provisions of sections 63(3a) and 93 of the Labour Act.

In casu, the Designated Agent presided over a matter over which he did not have jurisdiction.

When there is a determination on the merits of a dispute, a Designated Agent has no jurisdiction, under section 93 of the Labour Act, to redress or attempt to redress such a dispute.

The ramifications of what the Designated Agent did in this situation are clear.

There is no power conferred upon him to hear appeals in terms of the Labour Act.

The matter was improperly referred to him, and, consequently, the proceedings before him and the resultant appeal before the court a quo were a nullity.

There was therefore no proper appeal before both the Labour Court and this Court.

Regarding costs, the appellant had prayed for costs of the appeal. In view of the fact that the matter turned on the interpretation of section 14 of SI 18/17 it would be in the interests of justice that there be no order as to costs.

Given the irregularities deliberated in this judgment; in the result, it is ordered as follows:

1. The matter be and is hereby struck off the roll with no order as to costs.

2. In terms of this Court's review powers in section 25(1) of the Supreme Court Act [Chapter 7:13] the proceedings before the Designated Agent and the Labour Court are hereby set aside.

On 28 July 2023, this Court dismissed, with no order as to costs, an appeal against the judgment of the High Court under judgment number HH418-23 dated 12 July 2023.

At the end of the proceedings, this Court indicated that the reasons for this decision would be availed in due course. Set out hereunder are the Court's reasons thereof.

The appellant is a prospective Presidential candidate in the forthcoming Presidential Election slated for 23 August 2023. The first respondent is a registered voter in Ward 1 Mhondoro Ngezi Constituency. The second respondent is the Zimbabwe Electoral Commission (ZEC), established in terms of section 238 of the Constitution of the Republic of Zimbabwe Amendment (No.20) 2013 (the Constitution). It is responsible for the administration of elections in Zimbabwe. The third respondent is the Minister of Justice, Legal and Parliamentary Affairs. He is cited in his official capacity.

The facts founding the instant appeal are as follows:

On 21 June 2023, the appellant, amongst other prospective candidates, successfully lodged his nomination papers as a Presidential candidate before the Nomination Court. The first respondent became aware of the appellant's nomination and acceptance of candidature through the social media.

He took exception to the acceptance of the appellant's candidature.

In a letter dated 22 June 2023, addressed to the Chief Elections Officer, the first respondent stated, that, the appellant had not been resident in his constituency, and in the country, for a continuous period of eighteen (18) months.

He further stated, that, the appellant did not therefore meet the requirements set out under section 91(c)–(d) of the Constitution.

He also stated that section 23(1) and (3) of the Electoral Act [Chapter 2:13] (the Act) mandated that a registered voter ceased to be retained on the voters roll if he had not resided in that constituency for a continuous period of eighteen (18) months.

In reply to the letter, the second respondent advised the first respondent to approach the Electoral Court for relief.

The first respondent, thereafter, filed, in the High Court, an urgent court application under section 85(1)(a) of the Constitution alleging that his fundamental rights under section 56(1), section 67(1)(a) and 67(3) had been violated.

He contended, that, the decision of the Nomination Court to accept the nomination for candidature of the appellant violated section 91(1)(c)–(d) as read together with paragraph 1(2) of the 4th Schedule to the Constitution as read with section 23(3) of the Electoral Act.

The first respondent averred, that, he approached the High Court as he was of the view that the Electoral Court does not have the jurisdiction to issue declaratory relief.

He further averred, that, the Electoral Act and Electoral (Applications Appeals and Petitions) Rules 1995 (S.I.74A of 1995) (the Electoral Rules) did not provide him with any relief.

In opposing the application, the appellant raised several preliminary objections:

He stated, that, the court a quo did not have the jurisdiction to hear and determine electoral matters in which the Electoral Court has exclusive jurisdiction. He argued, that, the first respondent could have proceeded in terms of section 28(1) and 33(1) of the Electoral Act.

He further stated, that, the first respondent had no locus standi to bring the application.

The appellant further alleged, that, the first respondent approached the court a quo on wrong choice of law, and in violation of the principle of subsidiarity.

On the merits, the appellant stated that the first respondent failed to show how the decision of the Nomination Court violated his constitutional rights.

The appellant admitted that he temporarily left the country on medical grounds but denied that he was out of the country for a continuous period of eighteen (18) months.

The second respondent filed a notice indicating that it would abide by the decision of the court a quo.

On the preliminary points raised, the court a quo made the following findings:

(a) On jurisdiction, that it had jurisdiction in terms of section 171(1)(a) and (c) as read with section 85(1) of the Constitution;

(b) In respect to locus standi of the first respondent, it found that he had the locus by virtue of section 85(1)(a) of the Constitution, which accords an individual the right to approach a court alleging a violation of his fundamental rights;

(c) On wrong choice of law, it found that the Electoral Court does not have the necessary jurisdiction to issue declaratory orders. It further found, that, the application was not a review disguised as a declarator as the first respondent had no remedy of review under any other law; and

(d) On the question of breach of the principle of subsidiarity, it held that the first respondent had no other remedy under any other law but to approach a court under section 85(1)(a) of the Constitution.

On the merits, the court a quo made the following findings:

(a) That, once the first respondent had made a negative averment, which was admitted by the appellant, that the appellant had left the country, the onus shifted to the appellant to prove that he was not out of the country and his constituency for a continuous period of eighteen (18) months;

(b) That, the appellant had failed to discharge the reverse onus placed upon him;

(c) In interpreting section 23(3) of the Electoral Act, it held that once a person is absent from the country, and, therefore his/her constituency, for the prescribed period, he/she is deemed, by operation of law, to have ceased to be a registered voter.

It further found, that, cessation of registration as a voter in turn disqualifies one from nomination as a Presidential candidate;

(d) That, the appellant was not resident in the country, and, as such, not resident in his constituency for a continuous period of eighteen (18) months.

Accordingly, the court found, that, the appellant had ceased to be a registered voter, and, consequently did not qualify for nomination as a Presidential candidate.

Following the above findings, the court a quo issued the following order:

“IT IS DECLARED:

1. That, the decision of the Nomination Court sitting at Harare on 21 June 2023 to accept first respondent's nomination paper and candidature for election to the office of the President of the Republic of Zimbabwe in the elections scheduled to be conducted on 23 August 2023 was a violation of the provisions of section 91(1)(c) and (d) read together with paragraph 1(2) of the Fourth Schedule of the Constitution of Zimbabwe 2013 as further read together with section 23(2) of the Electoral Act.

2. That, the decision of the Nomination Court sitting at Harare on 21 June 2023 to accept first respondent's nomination paper and candidature for election to the office of the President of the Republic of Zimbabwe in the elections scheduled to be conducted on 23 August 2023 is in violation of applicant's constitutional rights as set out in sections 56(1), 67(2)(a) and 67(3)(a) of the Constitution of Zimbabwe 2013.

3. That, the decision of the Nomination Court sitting at Harare on 21 June 2023 to accept first respondent's nomination paper and candidature for election to the office of the President of the Republic of Zimbabwe in the elections scheduled to be conducted on 23 August 2023 is declared null and void and of no force and effect and hereby set aside.

4. That, first respondent is not a candidate for election to the office of President of Zimbabwe in the elections scheduled to be conducted on 23 August 2023.

ACCORDINGLY, IT IS ORDERED:

5. Second and third respondents shall not include the name of first respondent in the preparation of ballot papers to be used in the elections scheduled to be conducted on 23 August 2023.

6. First respondent is interdicted from representing of holding himself out to the general public and electorate in Zimbabwe of abroad, whether physically or through any form of media, as a candidate for election to the office of the President of Zimbabwe in elections scheduled to be held on 23 August 2023.

7. Each party shall bear its own costs.”

Dissatisfied with the court a quo's decision, the appellant filed the instant appeal on the following grounds:

“GROUNDS OF APPEAL

1. The court a quo erred at law in finding that it had the requisite jurisdiction to deal with the matter when the dispute before it clearly emanated from the Electoral Act [Chapter 2:13], and, in particular, sections 23, 28 and 33 thereof.

2. By finding that the 1st respondent had locus standi in judicio and adopting a liberal approach to it in a clearly non-constitutional matter, the court a quo committed an error at law which must be impeached by this Court.

3. By finding that the General Notice 1128-2023 made in terms of section 106 of the Electoral Act [Chapter 2:13] did not constitute law, the court a quo grossly erred and misdirected itself as it ignored the provisions of section 15A and 20 of the Interpretation Act [Chapter 1:01].

4. By entertaining the application on constitutional basis as it did, the court a quo erred and violated the constitutional principle of subsidiarity as it ignored specific provisions in the Electoral Act [Chapter 2:13], Administrative Justice Act [Chapter 10:28] and/or common law, which provide specific, adequate, and satisfactory remedies to the 1st respondent.

5. A fortiori, the court a quo erred in making an uncanny finding, that, the decision of the Nomination Court did not constitute a reviewable decision at law thereby dismissing the preliminary point that the application was a disguised review process.

6. The court a quo further erred in placing reverse onus to the appellant to prove his residence status in violation of the law and in complete disregard of the averments that were made by the 1st respondent in evidence.

7. Further, the court a quo erred in making a finding that the averments pertaining to the residence status of the appellant, as made by the 1st respondent, were in the negative thereby improperly applying the law.

8. Related to ground number 7 above, the court a quo grossly misdirected itself in making a factual finding that the appellant was not or has not been in the country for a period stipulated in section 23(3) of the Electoral Act in the absence of evidence establishing the same.

9. In taking purported judicial notice of the alleged absence of the appellant from Zimbabwe, the High Court erred, in using the principle of judicial notice to assist the 1st respondent in discharging an onus that he had miserably failed to establish on the founding papers.

10. The court a quo erred and misconstrued section 23 of the Electoral Act in deeming the appellant removed from the voters roll without having regard to section 28 of the same which posits a process which must be followed in removing a registered voter from the voters roll thereby disqualifying him as a Presidential candidate for the forthcoming plebiscite.

11. All in all, the court a quo erred at law by granting as it did, an unspeaking order with the result that no one knows what relief exactly was granted in the absence of an un-issued draft order which does not form part of the disposition of the judgment.

12. The court a quo erred at law in granting an application without making a positive finding on the infringement of section 67 of the Constitution.

The appellant prays that the appeal be allowed with costs and that the judgment of the court a quo, handed down under EC10/23, on 12 July 2023, be set aside and in its place and stead thereof be substituted with the following:

'IN THE MAIN, the court declines its jurisdiction.

IN THE ALTERNATIVE, the application is struck off the roll with costs.

IN THE ALTERNATIVE, the application is dismissed with costs on an attorney-client scale.'”

By consent, the above grounds were amended by adding the following:

“13. In dealing with the question of the perceived absence of the appellant from a constituency, and not cessation of residence in a constituency, the court a quo erred, and, by so doing, conducted a wrong enquiry leading to a judgment that is contrary to the dictates of section 23(3) of the Electoral Act.

The court a quo erred at law in disposing of the matter before it on the basis of perceived absence from a constituency when the law upon which the application was predicated, section 23(3) of the Electoral Act, relates to cessation to reside in a constituency, a totally different concept that has its own different requirements.”

Prior to the hearing of this appeal, the appellant had, by letter dated 21 July 2023, and addressed to the Registrar, requested the appointment of a five-member Bench to determine whether or not the case of Kambarami v 1893 Mthwakazi Restoration Movement Trust & Ors SC66-21 was properly decided.

At the commencement of the proceedings, the appellant abandoned the request and submitted that the matter should proceed before the Bench as constituted.

Counsel for the second and counsel for the third respondent submitted that they would abide by the decision of the court....,.

In dealing with the merits of the appeal, the appellant raised a new point of law without notice to the other side.

The new point related to jurisdiction of the court a quo, and, by extension, to this Court.

It was submitted, that, in terms of section 167(2)(b) of the Constitution, it is only the Constitutional Court that can hear and determine disputes relating to election to the office of President.

It was further submitted, that, the section relates, not only to election petitions but also to every facet of the process of electing the President, starting with the nomination process under consideration.

It was submitted, that, section 161 of the Electoral Act creates the Electoral Court as a specialized division of the High Court with exclusive jurisdiction to hear and determine all electoral matters except for petitions relating to disputes on the election of the President and criminal cases.

It was further submitted, that, the Electoral Court, being a division of the High Court, has powers to give judgments, orders, and directions - which powers include issuing declaratory orders.

The above submissions were made contrary to the concession made in the appellant's heads of argument, that, the Electoral Court does not have the power to issue a declaratory order.

Upon being engaged by the court on this apparent contradiction, the appellant submitted that he was withdrawing the concession as it was bad at law.

For this submission, he relied on the case of Moven Kufa & Anor v The President of Zimbabwe & Anor CC22-17.

It was submitted, that, the first respondent could not approach the court a quo in terms of section 85(1) of the Constitution as his remedy lies in the Electoral Court.

It was further submitted, that, whilst section 171(1) of the Constitution granted the court a quo the right to hear and determine constitutional matters, it did not take away the jurisdiction of the Electoral Court in electoral matters.

It was further argued, that, in Kambarami v 1893 Mthwakazi Restoration Movement Trust & Ors SC66-21 the court did not consider the import of section 161 of the Electoral Act, and, in particular, that the court is a division of the High Court and has the same powers as the High Court.

In concluding his submissions on this point, the appellant submitted that the judgment was per incuriam and it did not have to be followed as a precedent of the court.

Per contra, the first respondent objected to the new point of law, arguing that such a point cannot be taken without notice.

It was also submitted, that, this point was not raised in the court a quo neither was it addressed in the appellant's heads of argument before this Court.

Notwithstanding the objection, the respondent submitted as follows:

There is a distinction between nomination and election. Nomination is a process that precedes an election.

In the event that a person is unhappy with the nomination process, he appeals to the Electoral Court in terms of Part IV of the Electoral (Applications Appeals and Petitions) Rules 1995 (SI74A of 1995) (the Electoral Rules). However, in the event that there is a dispute relating to the election of the President into office, one can only approach the Constitutional Court directly.

The process of nomination takes place long before an election.

It was further submitted that Rule 10 of the Electoral (Applications Appeals and Petitions) Rules 1995 (S.I.74A of 1995) (the Electoral Rules) provides that an appeal to the Electoral Court may only be made by a candidate.

The first respondent, not being a candidate, would not have been able to bring an appeal in terms of the Electoral Act and its Rules.

The first respondent, therefore, did not have a remedy in the Electoral Court.

In relation to the issue raised in the first ground of appeal, the first respondent asserted that section 161 of the Electoral Act is only applicable when the court is seized with an application or an appeal in terms of the Electoral Act.

It was argued, that, the application before the court a quo was brought in terms of section 85(1) of the Constitution wherein the first respondent was seeking a declaratory order.

The first respondent, desirous to bring a constitutional application, had the right to approach the court a quo as the court was given the power, under section 171 of the Constitution, to hear and determine constitutional applications.

The court a quo's finding, that the Electoral Court does not have jurisdiction to issue declaratory orders, is grounded in a judgment of the Supreme Court itself in Kambarami v 1893 Mthwakazi Restoration Movement Trust & Ors SC66-21.

It was further submitted, that, the Electoral Court has the same powers as the High Court only in the limited circumstances set out in the Electoral Act and discussed in Kambarami v 1893 Mthwakazi Restoration Movement Trust & Ors SC66-21.

The decision in that case was binding on the court a quo.

Having considered the submissions by the parties, this Court finds that the court a quo had jurisdiction to hear and determine the application in terms of section 85(1) of the Constitution which reads as follows:

“85 Enforcement of fundamental human rights and freedoms

(1) Any of the following persons, namely -

(a) Any person acting in their own interests;

(b)…,.

(c)…,.

(d)…,.

(e)…,.
Is entitled to approach a court, alleging that a fundamental right or freedom enshrined in this Chapter has been, is being or is likely to be infringed, and the court may grant appropriate relief, including a declaration of rights and an award of compensation.”

The Court's finding in this regard finds expression in the words of MALABA DCJ…, in the case of Meda v Sibanda 2016 (2) ZLR 232 (CCZ)…, where he remarked that:

“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 human 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 courts on questions of violation of fundamental human rights and freedoms with minimal technicalities.

The facts on which the allegation is based must, of course, appear in the founding affidavit. Whether or not the allegation is subsequently established as true is a question which does not arise in an enquiry as to whether the matter is properly before the Court in terms of section 85(1).

In this case, the applicant alleged, in the founding affidavit, that her right to property had been infringed. Whether her allegation is true or not is not the issue. What matters is that she alleged a violation of a fundamental human right, and, as such, the Court was properly seized with the matter.

The question of the veracity of the allegation would have been tested on the basis of evidence placed before the Court.”

Considering that Meda v Sibanda 2016 (2) ZLR 232 (CCZ) is a decision of the Constitutional Court, it is final and binding on all subordinate courts.

That being the case, the court a quo undoubtedly had the requisite jurisdiction, in terms of section 171(1) of the Constitution, as it was dealing with a constitutional application brought in terms of section 85(1) of the Constitution.

The appellant went to great lengths arguing, that, what was before the court a quo was an electoral matter which should have been filed before the Electoral Court on the basis that it has exclusive jurisdiction to hear all electoral matters.

The submissions by the appellant raise the issue whether the conferment of exclusive jurisdiction on the Electoral Court, in terms of section 161 of the Electoral Act, ousts the court a quo's jurisdiction in electoral matters.

That issue was resolved by Kambarami v 1893 Mthwakazi Restoration Movement Trust & Ors SC66-21 where it was stated that:

“25. The Electoral Act does not provide, nor purport to give the court the jurisdiction to grant declaratory orders. A declaratur, by nature, is a special remedy open to any individual who has an interest in any matter who seeks a declaration on existing or future rights. The power of the High Court to grant declaratory orders is entrenched in section 14 of the High Court Act. Section 14 provides as follows:

'14. High Court may determine future or contingent rights

The High Court may, in its discretion, at the instance of any interested person, inquire into and determine any existing, future or contingent right or obligation, notwithstanding that such person cannot claim any relief consequential upon such determination.'

26. It seems to me that section 14 of the High Court Act is a special provision which flows from the fact that the High Court has inherent jurisdiction which the Electoral Court does not have. The remedy of a declaration of rights is a remedy which the High Court grants within its discretion. That is not a remedy which may be shared by a court which has limited jurisdiction.

27. It could not have been the intention of the legislature to give the Electoral Court the power to grant declaratory orders through the amendment of section 161 of the Act. In my view, section 161 of the Act was amended so as to provide the Electoral Court with wider powers so that it is not restricted to dealing only with election petitions as was the position prior to 2012.”

See ZIMASCO (Pvt) Ltd v Maynard Marikano 2014 (1) ZLR 1.

The decision in Kambarami v 1893 Mthwakazi Restoration Movement Trust & Ors SC66-21, that the Electoral Court does not have jurisdiction to issue declaratory orders, is final and binding.

The correctness and finality of decisions of the Supreme Court cannot be impugned as was enunciated in Lytton Investments (Pvt) Ltd v Standard Chartered Bank Zimbabwe Limited & Anor 2018 (2) ZLR 743 (CCZ)…, where it was held that:

“The principles that emerge from section 169(1) of the Constitution, as read with section 26 of the Act (Supreme Court Act) are clear. A decision of the Supreme Court, on any non-constitutional matter in an appeal is final and binding on the parties and all courts except the Supreme Court itself….,.

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. The correctness of the decision, at law, is determined by the legal status of finality. The question of the wrongness of the decision would not arise. There cannot be a wrong decision of the Supreme Court on a non-constitutional matter.”

The submission by the appellant, that the decision in Kambarami v 1893 Mthwakazi Restoration Movement Trust & Ors SC66-21 is in per incuriam, is without merit.

This Court engaged the import of section 161 of the Electoral Act in coming up with its decision.

The fact that the Electoral Court is a division of the High Court does not detract from the fact that it is a creature of statute with limited jurisdiction.

The court a quo was therefore correct as it was bound to follow the decision in Kambarami v 1893 Mthwakazi Restoration Movement Trust & Ors SC66-21.

This Court finds that the Electoral Court did not have jurisdiction to issue a declaratory order which was sought by the first respondent in the court a quo. Accordingly, this Court finds no merit to the challenge to the court a quo's jurisdiction.

Having found that the court a quo had jurisdiction, in terms of section 85(1) of the Constitution, to the exclusion of the Electoral Court, the question of subsidiarity falls away.

The applicant, one Lovedale Mangwana (“Mangwana”), filed this application through the urgent Chamber Book.

He filed it in terms of Rules 59(6) and 107 of the High Court Rules 2021.

He is moving me to grant him a declaratur and consequential relief.

He premises his application on section 85(1) of the Constitution of Zimbabwe as read with section 23(3) of the Electoral Act [Chapter 2:13] (“the Act”).

His suit is against one Saviour Kasukuwere (“Kasukuwere”) whom he cites as the first respondent and also against the Zimbabwe Electoral Commission (“the Commission”) and the Minister of Justice, Legal and Parliamentary Affairs (“the Minister”) who are, respectively, the second and third respondents herein.

His bone of contention is that the Commission, which sat as the Nomination Court on 21 June 2023, acted in error when it accepted Saviour Kasukuwere's nomination paper for election to the office of the President of Zimbabwe in the election which shall be held on 23 August 2023.

He insists that Saviour Kasukuwere, whom he claims was out of Zimbawe for more than eighteen (18) consecutive months, is, in terms of section 23(3) of the Electoral Act, no longer a registered voter.

He claims, that, as a person who ceased to be a registered voter, Saviour Kasukuwere cannot vote in the forthcoming election, and, because he cannot vote, he cannot be voted into any public office, let alone that of the President of Zimbabwe.

He, accordingly, seeks a declaration which is to the effect that the decision of the Nomination Court, which accepted Saviour Kasukuwere's papers as a candidate for election to the office of the President of Zimbabwe, violated section 91(1)(d) of the Constitution of Zimbabwe as read with section 23(3) of the Electoral Act.

The decision, he alleges, is a violation of his rights as contained in section 67(1)(a) and 67(1)(d) of the country's Constitution.

He, in short, moves me to grant him an order which is to the effect that Saviour Kasukuwere cannot be a candidate for election to the office of the President of Zimbabwe in the 23rd August 2023 plebiscite. He moves me, in consequence, to direct the Zimbabwe Electoral Commission (the Commission) and the Minister of Justice, Legal and Parliamentary Affairs (the Minister) not to include the name of Saviour Kasukuwere in their preparation of ballot papers which will be used in the electoral process of 23 August 2023. He moves me, further, to interdict Saviour Kasukuwere from holding himself out to the public and to the electorate in this country, as well as abroad, physically or through any form of media, as a Presidential candidate for the forthcoming election.

Saviour Kasukuwere opposes the application.

The Zimbabwe Electoral Commission (the Commission) and the Minister of Justice, Legal and Parliamentary Affairs (the Minister) did not file any notice of opposition. The Commission filed what it terms its notice to abide with the decision of the court. It filed the notice on 30 June 2023.

My view is that the Minister is also of the same view.

The non-attendance of the Zimbabwe Electoral Commission (the Commission) and the Minister of Justice, Legal and Parliamentary Affairs (the Minister) leaves Lovedale Mangwana and Saviour Kasukuwere in the question.

Saviour Kasukuwere raises five (5) in limine matters, after which he proceeds to deal with the merits of the application. The preliminary issues which he raises are that:

(i) The court does not have the jurisdiction to hear and determine the matter;

(ii) The application is one for review which is disguised as a declarataur;

(iii) Lovedale Mangwana does not have what is normally referred to as the locus standi in judicio;

(iv) Lovedale Mangwana approached the court in terms of an incorrect law and in an incompetent forum; and

(v) Lovedale Mangwana violated the principle of subsidiarity.

He denies, on the merits, that he was out of his constituency, and, therefore, out of Zimbabwe, for more than eighteen (18) consecutive months.

He challenges Lovedale Mangwana to prove the allegation which he (Lovedale Mangwana) is making.

He avers that he is duly nominated to be a Presidential candidate in the forthcoming general election because he meets the legal requirements for nomination.

He challenges Lovedale Mangwana to state the manner in which his candidature would affect Lovedale Mangwana's constitutional rights.

He insists that he has a local address where he resides and is domiciled.

He claims that he left Zimbabwe on a temporary basis on medical grounds.

He avers that he is a registered voter and that the Zimbabwe Electoral Commission (the Commission) verified his address in terms of section 23(3) of the Electoral Act.

It is his appearance on the voters roll which makes him compliant with section 91 of the Constitution of Zimbabwe, according to him.

He alleges that he appears on the voters roll of Ward 40, Pfura Rural District Council, Mount Darwin South Constituency. He gives Chiunye Primary School A as his polling station.

He claims that Lovedale Mangwana makes bare allegations regarding his absence from Zimbabwe.

He contends that Lovedale Mangwana has not established any right which the court should protect.

Lovedale Mangwana has not, according to him, shown that he is a registered voter in the ward or the constituency he alleges to be registered. He insists that his inclusion on the ballot paper does not interfere with Lovedale Mangwana's right to vote.

Lovedale Mangwana, he claims, has not set out any substantial interest in the matter nor a factual cause to motivate the relief which he seeks.

There is, according to him, no legal basis for the Zimbabwe Electoral Commission's conduct to be set aside, and, consequently, for his nomination to be quashed.

He insists that the application does not meet the requirements of urgency.

Lovedale Mangwana, he avers, should have engaged the processes in terms of the Electoral Act well before 21 June 2023. The conduct of Lovedale Mangwana, he claims, is self-inflicted urgency.

He alleges that the application is no more than Lovedale Mangwana's attempt to curtail his right as it is provided for in section 67 of the country's Constitution.

He moves me to dismiss the application with costs which are at attorney and client scale.

The application succeeds.

An election is, by its nature, a very emotive subject. Once it is at hand, people push and shove each other. They do so with one object in mind. They do so to either get into, or deny others from, entering or participating in the electoral race.

More often than not, the protagonists fail to find each other.

Where such occurs, they take each other to court which will resolve the dispute between them.

The court takes no side. All it does is to listen to the respective narratives of those who have approached it, the facts of each in particular, apply the relevant law to the same, and render a decision which, in its view, accords with the applicable law.

In this jurisdiction, a judicial officer wears two hats during the period which leads onto, during, and after an election.

Depending on the facts of the case, the judicial officer can sit as an ordinary court or as an electoral court.

The position which he/she assumes largely depends on the substance of the suit which the parties place before him/her.

Because the case can fall into one law and its rules to the exclusion of the other law and its rules, it more often than not occurs that one litigant, plaintiff or applicant, files his/her case under one law and its rules which, from a prima facie perspective, are divorced from the substance of the case.

Where the litigant does so, he/she creates fertile ground for his/her adversary, defendant or respondent, who will be quick to tell the court that the litigant's suit is misplaced. Misplaced in the sense, that, it should have been lodged in terms of the other law and its rules.

What I stated in the foregoing paragraphs of this judgment applies to the current application, whose substance is that of an electoral matter which has been filed in terms of the High Court Act and its rules and not in terms of the Electoral Act and its rules.

Lovedale Mangwana's adversary, for instance, remains of the view that the same should have been filed under the latter, and not the former piece of legislation.

Whether or not the stated matter reflects the correct position of the law depends, in a large measure, on the substance of the application, which, as is evident from Lovedale Mangwana's founding papers, is one for a declaratur and consequential relief.

It is pertinent for me, at this stage, to deal with Lovedale Mangwana's application.

In doing so, I remain alive to the preliminary issues which Saviour Kasukuwere raises.

Those technical issues are allowed by law. They are more often than not raised by the parties legal practitioners who are schooled in substantive law as well as in the law of practice and procedure.

The issues colour the case of the parties for better or for worse. Where they are properly raised, they have the effect of stifling the suit of the plaintiff or the applicant to a point where no further debate of it may be entertained by the court. They cannot therefore be wished away. They should be taken account of on the basis of the audi alteram partem rule which, simply considered, enjoins a court to hear both parties before it determines their dispute.

The first matter which Saviour Kasukuwere raises on this aspect of the case is that I do not have the jurisdiction to hear and determine this application.

Jurisdiction, simply considered, means the power or competence of a court to hear and determine a matter which has been placed before it.

Various courts have various jurisdictions to hear a matter. Jurisdiction, in some cases, is conferred upon a court by law - statute or otherwise.

Section 171(1)(a) and (c) of the Constitution of Zimbabwe (No.20) Act of 2013 (“the Constitution”), for instance, confers upon me the jurisdiction to hear and determine all civil and criminal matters throughout Zimbabwe, as well as to decide constitutional matters, except those that only the Constitutional Court may decide.

A near example of where I have no power or competence to hear and determine a matter is, as counsel for Lovedale Mangwana correctly submits, my competence to hear or determine a Presidential election dispute.

That, it stands to reason and logic, remains a preserve of no court in Zimbabwe other than the Constitutional Court of Zimbabwe. It, in other words, falls into the exceptions category which are stated in the last part of paragraph (c) of subsection (1) of section 171 of the Constitution.

It is on the strength of section 171(1)(a) and (c) of the Constitution that I hold the view, that, I have the requisite jurisdiction to hear the application which Lovedale Mangwana placed before me.

Saviour Kasukuwere's argument would have held if Lovedale Mangwana invited me to hear a Presidential election dispute.

What he placed before me is not such. It is an ordinary urgent court application for a declaratur and consequential relief.

I, accordingly, have the requisite jurisdiction to hear and determine the application, both as a civil and a Constitutional case.

I do have that, on the basis that it is filed in terms of the Rules of this court.

In holding the view which I hold on this aspect of the application, I take comfort in the decision which the Supreme Court made in Guwa & Anor v Willoughby's Investments (Pvt) Limited 2009 (1) ZLR 368 (S) in which it is remarked that:

“In terms of jurisdiction, the distinction between the Supreme Court and the High Court may be summarized as follows:

Except where specifically empowered, the Supreme Court has no jurisdiction to hear or determine any matter, and may only exercise powers in respect of an appeal in terms of the provisions of the Act and Rules of Court. The High Court, on the other hand, has the jurisdiction to hear all matters except where limitations are imposed by law.

In other words, whilst the Supreme Court may do nothing that the law does not permit, the High Court may do anything that the law does not forbid.”

Saviour Kasukuwere's assertion on this aspect of the case is opaque.

Opaque in the sense, that, he does not state the actual reason why he denies me the opportunity to hear Lovedale Mangwana's case.

He seems to suggest, that, because the application is election-related, I cannot, as a judge of this court, hear it. He also suggests that Lovedale Mangwana should proceed in terms of provisions of the Electoral Act to review the decision of the Zimbabwe Electoral Commission (the Commission) and have it set aside, if such is his intention.

His argument is misplaced.

The application, though it has a bearing on the events of 21 June 2023, in terms of which he was nominated to stand for the office of President for Zimbabwe, is filed as an ordinary urgent court application, and not as an application which falls under the Electoral Act.

It states in clear and categorical terms, that, it is an urgent court application which is filed in terms of Rule 107 of the High Court Rules 2021 as read with section 85(1) of the Constitution.

It, accordingly, falls within my domain to hear and determine it.

The in limine matter which he raises, on me having or not having the jurisdiction to entertain the application is, therefore, without merit. It is dismissed.

This matter was placed before the full bench of this Court for confirmation of an order of constitutional invalidity pursuant to Rule 31 of the Constitutional Court Rules 2016 (hereinafter “the Rules”) as read with section 175(1) of the Constitution, against the judgment of the High Court (hereinafter “court a quo”) in the case of Penelope Douglas Stone & Anor v Central Africa Building Society & Ors HC4243/21.

At the end of the proceedings, the Court made an order, the operative part of which read as follows:

“1. The confirmation of the order of the court a quo is declined.

2. The order of the court a quo is set aside in its entirety.

3. There shall be no order as to costs.

4. Reasons for the decision are to follow in due course.”

What follows are the reasons for that order.

The applicants before this Court are partners in an architectural enterprise. The first respondent is Central African Building Society (CABS). The second respondent is the Reserve Bank of Zimbabwe (RBZ), with the third respondent being the Minister of Finance and Economic Development.

The applicants applied to the court a quo, purportedly in terms of section 85(1) of the Constitution. They sought a declarator to the effect, that, Exchange Control Directive No. RT120/2018, issued by the second respondent, was unconstitutional due to an alleged violation of the right to property enshrined under section 71 of the Constitution.

In addition, the applicants sought a declaration to the effect, that, the same directive was grossly unreasonable and ultra vires section 35(1) of the Exchange Control Regulations, SI109 of 1996, and was accordingly invalid.

The constitutionality of sections 44B(3)-(4) and 44C of the Reserve Bank Act [Chapter 22:15] was also impugned on the premise that the provisions in question violated section 71 of the Constitution.

A similar declaration was sought with respect to sections 21(1)(b), 22(2), 22(4)(a) and 23(1)-(3) of the Finance (No.2) Act of 2019 for allegedly violating the aforementioned section 71 of the Constitution.

Consequent to the above, the applicants sought a further declaration that the conversion of their USD142,000 to RTGS142,000 was unconstitutional and violated section 71 of the Constitution. They therefore sought an order compelling the first respondent to reimburse them the sum of USD142,000.

The genesis of the dispute stemmed from the applicants inability to access funds in USD from an account maintained by them with the first respondent.

The applicants are architects and are partners in an architectural firm. The firm operates bank accounts with the first respondent. On 17 October 2018, they demanded the release to themselves of the sum of USD142,000 from one of their accounts.

By letter dated 4 October 2018, the first respondent responded to the demand and indicated that it was unable to pay them that amount as the account was now denominated in the RTGS currency following a directive from the second respondent, the Reserve Bank of Zimbabwe (RBZ).

The first respondent advised them that the requested sum could not be paid out in United States Dollars on the basis of the Exchange Control Directive RT 120/2018, which essentially converted the pre-existing sum to RTGS denomination.

This was confirmed in correspondence between the parties on 24 October 2018.

The applicants do not accept that the conversion of that account was lawful, and, as a consequence, contend that a constitutional issue arose from the fiction of equating the United States Dollar with the local RTGS by the authorities.

It was submitted on their behalf, that, the Government itself had recognised the superficiality of the parity argument between the United States Dollar with the local RTGS currency. Contrary to its stated position, on the argument of parity between the USD and the local currency, Government had insisted on payment of certain obligations be made exclusively in United States Dollars. To cement their argument, the applicants made reference to the exclusive levy of fuel prices in United States Dollars.

It was contended, that, the first respondent would be unjustly enriched at their expense due to this legal fiction of parity.

They submitted before the court a quo, that, the impugned legislation served to deprive them of their rights under section 71 of the Constitution and could not be justified under the limitation clause in section 86 of the Constitution.

The applicants argued, that, section 71(3) of the Constitution sets out the standards for the compulsory acquisition of property, which requirements were not satisfied by the impugned legislation.

It was further submitted, that, the law of general application which authorizes compulsory deprivation must also entitle claimants to apply for compensation, which was not satisfied by the impugned law.

Further to this, the applicants contended, that, their application was properly before the court, regard being had to the judgment by the Supreme Court involving the same parties.

They contended, that, the remarks in the judgment had given them the conviction that they could succeed in suing the respondents once they had impugned the parent statute that had given birth to the Exchange Control Directive in question.

For these reasons, they contended that Exchange Control Directive No. R120/2018, sections 44B(3)-(4) and 44C of the Reserve Bank Act and sections 21, 22 and 23 of the Finance (No.2) Act of 2019 violated section 71 of the Constitution, and, that, as a consequence, the first respondent was obliged to reimburse them the sum of USD142,000.

The application was opposed by all the respondents in the court a quo.

The first respondent raised the preliminary issue that the relief sought was defective. It argued that a declaration of constitutional invalidity could not give rise to any automatic positive rights on behalf of the applicants, and further, that, it could not be compelled to effect payment in a constitutional matter until such proceedings were confirmed by the Constitutional Court.

On the merits, it maintained that its actions in the matter were guided by validly promulgated laws.

The first respondent contended, that, the impugned directive only mandated the deposit of foreign currency from offshore sources into Nostro accounts. However, the funds in the account maintained by the applicants had emanated from local deposits and were therefore excluded from this category.

The first respondent further submitted, that, there could not be a claim for unjust enrichment against it because, as a Building Society, its funds were deposited with the second respondent, the Reserve Bank of Zimbabwe.

It noted that the second and third respondents had the requisite legal authority to regulate monetary and fiscal matters in terms of the Reserve Bank Act.

The first respondent also submitted, that, the plea of res judicata was applicable in casu as the matter had been argued to finality in the Supreme Court.

In turn, the second respondent also submitted that the matter was res judicata as the Supreme Court had dealt with the same matter on appeal from the court a quo.

On the merits, it submitted that the impugned legislation did not violate section 71 of the Constitution.

The third respondent also associated itself with the arguments by the first and second respondents, and, further submitted that the impugned legislation did not take away any of the applicants rights.

Counsel for the third respondent suggested that the applicants ought to have joined Parliament to the proceedings as they had sought to impugn acts done in terms of a valid statute.

In response, the applicants submitted, that, after the operationalisation of the Directive, the funds in their account with the first respondent, when converted at the official exchange rate, amounted to a mere US$1,604=52 which they suggested constituted a violation of section 71 of the Constitution.

They sought to counter the allegation that the issue had not been properly taken, regard being had to the doctrine of res judicata, on the basis that there had been no determination on the constitutionality of the exchange control directive by either the High Court or the Supreme Court.

Although the court a quo agreed that the subject matter in the dispute before it was the same as that previously litigated upon, it concluded that the matter was not res judicata because the question regarding the constitutionality of the impugned legislation remained in issue. As a consequence, it dismissed the preliminary point.

It also disregarded the preliminary point raised on the principle of subsidiarity, terming the point in limine “pedantic and a miscarriage of justice.”

On the merits, the court a quo held that it would determine the constitutionality of the Exchange Control Directive separately from the issue that it was ultra vires section 35(1) of the Exchange Control Regulations, 1996.

Although its constitutional validity was not an issue for determination before it, the court a quo found that section 35(1) of the Exchange Control Regulations 1996 was not ultra vires section 71 of the Constitution.

Thereafter, the court a quo concluded that paragraphs 2.5 and 2.6 of the Exchange Control Directive RT120/2018 were ultra vires section 35(1) of Exchange Control Regulations 1996. It further determined, that, Exchange Control Directive RT 120/2018 was impeachable along with the other impugned legislative provisions in the sense that they interfered with the contractual rights of the parties, and, in turn, breached section 71 of the Constitution. The provisions were held to invade property rights protected under section 71(2) of the Constitution.

Consequent thereto, it issued an order which is now subject to confirmation by this Court. The order reads as follows:

“(i) Paras 2.5 and 2.6 of the Exchange Control Directive RT 120/2018, dated 4 October 2018, are ultra vires section 35(1) of the Exchange Control Regulations 1996, SI 109 of 1996, and are hereby set aside.

(ii) Subject to section 175(1) of the Constitution of Zimbabwe -

1. The conversion of the amount of USD142,000 standing to the credit of the applicants savings account No.1005428905 with the first respondent, as at 28 November 2016, violated section 71 of the Constitution.

2. Paras 2.5 and 2.6 of the Exchange Control Directive RT120/2018 aforesaid violate section 71 of the Constitution.

3. Section 22(1)(b) and (d) and section 22(4)(a) of the Finance Act (No.2) Act No.7 of 2019 violate section 71 of the Constitution and are hereby set aside.

4. The first respondent shall pay the applicants the sum of USD142,000 together with interest thereon at the rate of 5% per annum from 28 November 2016 to the date of payment.

5. The respondents shall pay the costs of suit jointly and severally, the one paying the others to be absolved.”

At the onset of proceedings, the parties were directed to address the Court on whether the matter was properly before the court a quo.

Counsel for the applicants submitted, that, the matter was properly before the court a quo.

He argued that the applicants rights, under section 71 of the Constitution, had been violated by the impugned laws. He suggested that the co-joining before the court a quo of constitutional and non–constitutional issues was not improper.

To that end, he made reference to several authorities that he contended provided exceptions to the principle of constitutional avoidance, and, in this particular respect, submitted that the conflation of issues was held to be non-fatal in the seminal case of Mudzuru & Anor v Minister of Justice, Legal & Parliamentary Affairs NO & Ors CC12-15, now reported as M & Anor v Minister of Justice, Legal & Parliamentary Affairs N.O. & Ors 2016 (2) ZLR 45 (CC).

Counsel for the applicants submitted, that, the principle of res judicata was inapplicable in casu because the aforementioned constitutional issues were not determined in previous litigation.

Therefore, his view was that the matter was properly before the court a quo.

Per contra, counsel for the first respondent submitted, that, the matter was not properly before the court a quo.

Counsel contended that the matter, as pleaded by the applicants, went beyond the confines of an application within the contemplation of section 85(1) of the Constitution.

In addition, it was contended on behalf of the first respondent, that, the applicants pleadings lacked the specificity required by the Rules and that the court a quo, mero motu, had identified paragraphs 2.5 and 2.6 of Exchange Control Directive RT128/2018 as being impeachable, and, therefore, unconstitutional.

Counsel for the first respondent further argued, that, the court a quo over-reached its jurisdictional ambit by determining a constitutional issue once it had dealt with a non–constitutional issue.

In addition, it was his contention that the principle of res judicata was applicable in casu since there was previous litigation concerning the same subject matter between the same parties, and, critically, premised on the same cause of action.

He further submitted, that, the court a quo fell into error when it invalidated section 22 of the Finance Act [Chapter 23:04] because that piece of legislation sought to be impugned had only come into effect after the applicants cause of action had allegedly arisen.

In turn, counsel for the second respondent associated himself with and concurred with submissions made on behalf of the first respondent, that, the constitutional jurisdiction of the court a quo was not properly invoked.

He made specific reference to Rule 107 of the High Court Rules 2021 as indicative of the appropriate procedure to be followed in constitutional matters before the High Court.

Counsel for the second respondent submitted, that, the applicants reliance on section 85(1) of the Constitution placed an obligation on the applicants to establish the violation of a fundamental right. He pointed to the applicants reliance on exceptions to the general rule of constitutional avoidance as an admission that the matter was principally non–constitutional in nature.

Consequently, counsel for the second respondent submitted, that, the judgment of the court a quo ought to be set aside in its entirety.

Counsel for the third respondent also buttressed the point, that, the matter was improperly before the court a quo.

He submitted that the constitutional relief sought before the court a quo was merely tangential to the motive of the applicants, which was the recovery of USD142,000.

He submitted that there must be specificity in the pleadings when declarations of constitutional invalidity are sought in order to preserve the principle of the separation of powers.

It was his submission that the relief sought should not be granted.

Section 175(1) of the Constitution provides, that, where a court makes an order concerning the constitutional invalidity of any law or the conduct of the President or Parliament, the order has no force or effect unless it is confirmed by this Court. Thus, the order of constitutional invalidity by a subordinate court does not bind the Constitutional Court.

It must itself conduct an examination into the constitutionality of the impugned conduct or statute as it is the sole court with the jurisdiction, under the Constitution, to declare such conduct or statute as being unconstitutional or invalid.

As a consequence, the law requires that the Constitutional Court must itself be satisfied as to the invalidity of the law or conduct being impugned.

It is trite that under section 175(1) of the Constitution any declaration is subject to the over-arching jurisdiction and supervisory role of the Constitutional Court.

In this enquiry, it must first decide whether the challenge to the constitutional validity of the law or impugned conduct was properly before the court a quo.

By operation of law, the confirmation proceedings before this Court are, in essence, a process of review of the proceedings before the court a quo.

The principles which are applicable in confirmation proceedings are settled:

(i) Firstly, given the limited jurisdiction of the Constitutional Court as a special court, it has to be determined whether there was a constitutional matter before the subordinate court.

(ii) Secondly, the constitutional matter which would have arisen in the subordinate court must have been properly before that court, and that court must have had the competence to deal with the matter.

The power of this court, in confirmation proceedings, takes the form of a review of the constitutional matter to satisfy itself that the order of constitutional invalidity was correctly made: see S v C (A Juvenile) (Justice for Children's Trust and Zimbabwe Lawyers for Human Rights Intervening as Amici Curiae) 2019 (2) ZLR 12 (CC) and Mupungu v Minister of Justice Legal & Parliamentary Affairs CC07-21.

In Makamure v Minister of Public Service, Labour and Social Welfare and Anor CC01-20 MALABA CJ pertinently posited the following:

“The Court is also not bound by the order of constitutional invalidity made by the court a quo. In S v Chokuramba CC10-19, the Court held at p6 of the cyclostyled judgment as follows:

'The Court is empowered to confirm an order of constitutional invalidity only if it is satisfied that the impugned law or conduct of the President or Parliament is inconsistent with the Constitution. It must conduct a thorough investigation of the constitutional status of the law or conduct of the President or Parliament which is the subject-matter of the order of constitutional invalidity. The Court must do so irrespective of the finding of constitutional invalidity by the lower court and the attitude of the parties.'”

The Court therein noted, that, the invalidity of the law or conduct was a legal consequence of a finding of inconsistency between the law and conduct which the Court might not necessarily be in agreement with.

Thus, the Constitutional Court is empowered to confirm an order of constitutional invalidity only if it is satisfied that the impugned law or conduct of the President or Parliament is indeed inconsistent with the Constitution.

See also Phillips and Anor v Director of Public Prosecutions and Ors 2003 (3) SA 345 (CC)…,.

Given the foregoing, it seems to me that three issues arise for determination:

(i) The first is whether the court should have found that the matter was res judicata, and, as a consequence, declined exercising its jurisdiction in determining the application.

(ii) The second, but quite fundamental issue, is whether a proper constitutionally based cause of action was placed before the court a quo justifying its assumption of jurisdiction and the order that it made.

The respondents contend, that, the lack of specificity in pleading the cause of action should have non-suited the applicants before the court a quo.

(iii) The third is whether the court a quo should have declined to consider the alleged unconstitutionality of the Directive based on the doctrine of subsidiarity, as argued by the respondents.

The applicants a quo approached the court in terms of section 85(1)(a) of the Constitution.

The procedure in section 85(1)(a) of the Constitution is a direct enforcement procedure for the enforcement of fundamental rights and liberties. It is meant to secure constitutional remedies.

It cannot be invoked in respect of non-constitutional remedies.

The applicants founded their locus standi to institute legal proceedings in terms of section 85(1)(a) of the Constitution on the premise of an allegation of the violation of the right to property as enshrined under section 71 of the Constitution.

What the applicants filed in the High Court can best be described as a hybrid application.

They claimed locus standi to approach the court for a declaration of invalidity on an alleged violation of a right and in that respect invoked section 85(1) of the Constitution.

A court that is approached in terms of section 85(1)(a) of the Constitution cannot exercise its jurisdiction on any other matter besides matters that seek redress for direct and actual infringements or likely infringements of fundamental rights and freedoms set out in the Bill of Rights.

Thus, where the court is approached in terms of section 85(1)(a) of the Constitution, it must not involve itself in the determination of non-constitutional issues.

It is evident that the proceedings a quo went beyond the enforcement of fundamental rights and freedoms contained in Chapter 4 of the Constitution.

It is common cause that the application for constitutional relief was conjoined with a cause of action based on non-constitutional relief.

It is also not in dispute that the applicants sought the declaration of invalidity of the Exchange Control Directive on the basis that it violated the right to property as enshrined in section 71(2) of the Constitution.

Further to this, a declarator was prayed for to the effect, that, the conversion of USD142,000 to RTGS142,000 was unconstitutional and invalid as it violated section 71(2) of the Constitution.

The order sought further included a declarator to the effect, that, the Directive was grossly unreasonable and ultra vires section 35(1) of the Exchange Control Regulations, Statutory Instrument 109 of 1996. This relief is not available under section 85(1) of the Constitution upon which they sought to establish locus standi for approaching the court a quo.

The order was not concerned with a violation of a constitutional right.

It has been emphasised in a plethora of judgments of this Court, that, once a litigant pleads their locus standi under the ambit of section 85 of the Constitution, the application must meet certain requirements.

The specificity in pleading locus standi is of prime consideration.

In Zimbabwe Human Rights Association v Parliament of Zimbabwe and Ors CC06-22, PATEL JCC advanced the following:

“In essence, what the applicant has purported to do is to proceed under two mutually exclusive provisions of the Constitution, viz. section 85(1) and section 167(2)(d). This course of action was pointedly frowned upon in Central African Building Society v Stone & Ors SC15-21, at p.17, para. 38, where GWAUNZA DCJ observes that:

'..., an application under section 85 of the Constitution should not be raised as an alternative cause of action...,. Section 85(1) is a fundamental provision of the Constitution and an application under it, being sui generis, should ideally be made specifically and separately as such.'”...,.

See also Law Society of Zimbabwe v Parliament of Zimbabwe & Ors CC10-23.

In casu, it is evident that the applicants conflated the constitutional application under section 85 of the Constitution with a non-constitutional cause of action.

The link between the two is impermissible, in that, in conjunction with a declaration of invalidity, they sought a declaration that Exchange Control Directive No. R120/2018 be declared grossly unreasonable and ultra vires its enabling provision, section 35(1) of the Exchange Control Regulations 1996.

The latter did not envisage the enforcement of a fundamental right under section 85(1) of the Constitution as pleaded in the founding affidavit establishing locus standi.

I have no hesitation in stating, that, not only is this impermissible but the procedure adopted was grossly irregular.

Further to the above, the applicants application, purportedly made in terms of section 85(1)(a) of the Constitution, did not specifically plead an infringement of any of their fundamental rights and freedoms.

The law is settled, that, in constitutional litigation, the constitutional issue to be decided by the court must be specifically pleaded. The requirement of specificity in constitutional litigation cannot be overlooked.

The procedural requirement for specificity in pleading requires that the challenged legislation and the grounds of such challenge be properly raised in pleadings.

There is need for accuracy in pleading in constitutional litigation and the required accuracy in pleading cannot be overlooked. It is critical in the determination of the issues to be decided by the court: see Philips & Ors v National Director of Public Prosecutions 2006 (1) SA 505 (CC)…, and Shaik v Minister of Justice & Constitutional Development 2004 (3) SA 599.

The failure to plead a cause of action with the required accuracy and specificity in the matter a quo was fatal.

Despite the irregularity and the inherent conflict, the court a quo found that the Directive was not grossly unreasonable but still granted an order declaring it ultra vires the Exchange Control Regulations.

It also found, that, the Reserve Bank was empowered to issue Directives under the Regulations.

By eschewing fundamental constitutional principles, the court a quo determined an application that was improperly placed before it.

It must be reiterated that issues regarding the cause of action are rooted in law and not abstract personal convictions.

Thus, the court a quo, by failing to recognise the sui generis nature of an application whose genesis emanates from section 85 of the Constitution grossly misdirected itself by assuming jurisdiction over two conflicting causes of action, the determination of which was reposed under different species of the law.

On this score alone, the order granted by the court a quo cannot be confirmed by this Court as the conflated application was not properly before it....,.

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.

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.

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.

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.

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.

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.

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.

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.

On 13 January 2022, the High Court rendered its judgment on the application for a referral of the matter to the Constitutional 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.

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.

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.

The major part of the reasons for opposing the application constitute legal argument, which I will advert to later in the judgment.

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.

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.

Counsel for the applicant 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.

Counsel for the applicant 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.

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, counsel for the applicant 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.

Counsel for the applicant 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.

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.

Counsel for the applicant 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.

Counsel for the applicant 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.

Counsel for the applicant 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.

Counsel for the applicant 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.

Per contra, counsel for the respondent 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.

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.

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.

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, counsel for the respondent 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.

Counsel argued strongly, that, the applicant had an obvious mis-apprehension 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.

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.

On the question of the alleged infringement of section 69(3) of the Constitution, counsel for the respondent 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, counsel for the respondent insisted that the court a quo's determination could only be challenged where a procedural irregularity was evident.

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) of the Constitutional Court Rules is relevant.

The principles governing applications for direct access are contained in Rule 21(3) of the Constitutional Court Rules 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.”

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 CC07-18, 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.”…,.

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) of the Constitutional Court Rules sets out the factors that the court may consider in determining the phrase “interests of justice”: see Mwoyounotsva v Zimbabwe National Water Authority CC17-20…,.

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 there are disputes of fact in the matter.”

See also Chiwaridzo v TM Supermarkets (Private) Limited & Ors CC19-20…,.

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 re-affirmed 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)…, 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.”

Turning to this jurisdiction, in the case of Denhere v Denhere & Anor CC09-19..., 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.”

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.

This approach was re-affirmed in the case of Zimbabwe Development Party & Anor v President of The Republic of Zimbabwe & Ors CC03-18…, 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.”

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 CC10-21, 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 CC11-18, 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.'”

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.

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:

(a) Is consistent with the hierarchy of courts provided for in section 162 of the Constitution of Zimbabwe 2013.

(b) 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.

(c) 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 a fair hearing enshrined in section 69(2) as read with section 3(1)(b) of the Constitution of Zimbabwe 2013.

(d) 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.”

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 paragraph 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 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.

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

(1) The Supreme Court is the final court of appeal for Zimbabwe, except in matters over which the Constitutional Court has jurisdiction.

(2) Subject to subsection (1), an Act of Parliament may confer additional jurisdiction and powers on the Supreme Court.

(3) 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”

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

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.

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.”

I turn next to consider the jurisdictional ambit of the High Court.

Section 171 of the Constitution provides:

“170 High Court

(not relevant)

(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.”

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.”

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.”

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.

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)…,. The Appellate Division of South Africa re-affirmed 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.'”

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.

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 AD 511, where DE VILLIERS JA..., 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."

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 court can determine such an application, is South Cape Corporation v Engineering Management Services 1977 (3) SA 534 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 pp120-3), 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 p481; Reid and Another v Godart and Another 1938 AD 511 at p513; Gentiruco A.G. v Firestone SA (Pty) Ltd 1972 (1) SA 589 (AD) at p667; Standard Bank of SA Ltd v Stama (Pty) Ltd 1975 (1) SA 730 (AD) at p746.”

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...,. 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.”

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 2005 (1) ZLR 275 (S), 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 of the Constitution 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.

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.

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)…, 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 SC81-21.

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 of the Constitution, and, consequently, illegal.

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.

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 HH39-07. 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.

5. 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.

6. 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.”

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:

(a) The potentiality of irreparable harm or prejudice being sustained by the appellant if leave is granted;

(b) Conversely, the potentiality of irreparable harm or prejudice sustained by the respondent, on appeal, if leave to execute is not granted;

(c) 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.

(d) Where there is the possibility of irreparable harm to both parties, the balance of hardship or convenience.

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 HMA37-18.

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 over-riding 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...,.

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.

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.

The courts, as confirmed by section 176 of the Constitution, have the inherent jurisdiction to control their own processes. Section 176 of the Constitution, in point of fact, re-affirms 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.

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.

Thus, the inherent jurisdiction of superior courts, or their inherent powers, are those powers which are in-alienable 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.

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…, 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 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.”

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.

On a proper construction of the law, I do not envisage a scenario arising out of one court's power under section 176 of the Constitution 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.

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.

It is evident that the applicant wishes to read into section 176 of the Constitution 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.

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 of the Constitution, discern the power to order the execution of a judgment that is not its own except in the situations adverted to above.

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 pre-determine the merits of the appeal itself.

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.”

The above dictum was, however, qualified in Numsa v Fry's Metals (Pty) Ltd 2005 (5) SA 433 (SCA), where…, 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.”

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.

The applicants are importunate. They want back their money, $142,000, all in the currency of the United States dollars [USD].

If the first respondent, their banker, will not pay, then the second and third respondents, collectively the monetary authorities, should.

The applicants allege these monetary authorities are partly the reason the first respondent will not pay.

The applicants want a whole range of some financial legislation, and certain monetary policies or directives, set aside on the grounds of constitutional invalidity.

They first came to this court in 2019. The subject matter was the same. This court ruled in their favour. It directed the first respondent to pay: see Stone & Anor v CABS & Ors HH287-20.

The first respondent did not pay.

All the respondents appealed separately. The appeals succeeded. The judgment of this court was vacated: see CABS & Ors v Stone & Ors SC15-21.

That was in March 2021.

In August 2021, the applicants were back in this court. It is still the same subject matter. But the thrust is now different. They seek the following orders:

(i) That, Exchange Control Directive No. R120/2018 issued by the Reserve Bank [is] unconstitutional and invalid as it violates section 71 of the Constitution;

(ii) That, the Exchange Control Directive No. RT120/2018 is grossly unreasonable and ultra vires section 35(1) of the Exchange Control Regulations, SI 109 of 1996, and is invalid;

(iii) That, section 44B(3) and (4) of the Reserve Bank Act are unconstitutional and invalid as they violate section 71 of the Constitution;

(iv) That, section 22(1)(b) and (d), section 22(4)(a) and section 23(1) and (2) of the Finance (No.2) Act of 2019 are unconstitutional and invalid as they violate section 71 of the Constitution;

(v) That, the conversion of the applicants USD142,000 to RTGS142,000 is unconstitutional and invalid as it violates section 71 of the Constitution;

(vi) That, the first respondent should pay to the applicants the amount of USD142,000;

(vii) That, the first respondent is to pay interest on the aforestated amount at the rate of 5% per annum from 28 November 2016 to the date of payment; and

(viii) That, the respondents must pay costs of suit, jointly and severally, the one paying the other[s] to be absolved.

The first respondent is a building society. It is a bank or an authorised dealer for the purposes of exchange control regulations.

At all relevant times, the applicants were in business as architects. They banked with the first respondent. As at 28 November 2016 the balance in their account was $142,000. The designation of the account was USD.

That designation was in line with the currency regime in force at the time. At the time, the national economy was on a multi-currency system. That had been the situation since 2009.

In terms of that system, the currencies of other countries, specifically the British pound, the euro, the USD, the South African rand and the Botswana pula had been made legal tender in Zimbabwe, courtesy of an amendment to the Reserve Bank Act [Chapter 22:15]: see section 17 of the Finance (No.2) Act No.5 of 2009.

The local currency would float and find its own level in the basket of all these other currencies.

Over the years, the local currency depreciated in value so much that it practically became non-existent. In 2015, the State President officially demonetized it through statutory instrument S.I.70 of 2015: see Reserve Bank of Zimbabwe (Demonetisation of Notes and Coins) Notice 2015, SI70 of 2015.

After the demonetization as aforesaid, there followed some rapid developments in the monetary system.

These were achieved through policy pronouncements and legislative changes by the State President in terms of the Presidential Powers (Temporary Measures) Act [Chapter 10:20], or via the second respondent, as the Central Bank, and the third respondent, as the Minister in charge of finance.

Among other such changes, the third respondent, was empowered in 2016, through a statutory instrument, to reintroduce some form of local currency: see Presidential Powers (Temporary Measures) (Amendment of Reserve Bank of Zimbabwe Act and Issue of Bond Notes) Regulations 2016, SI133 of 2016.

Such currency would comprise what would become known as 'bond notes' and 'bond coins'.

It would become legal tender. It would be exchangeable at par value with any specified currency. Each unit of a bond note would be exchangeable for one USD. The bond notes and coins eventually came into operation in March 2017. This was achieved through an amendment to the Reserve Bank Act: Reserve Bank Amendment Act No.1 of 2017.

The amendment practically reproduced S.I.133 of 2016. But, there were two significant additions:

(i) The amendment was deemed to have come into operation on 31 October 2016 (section 1 thereof) the date of SI 133 of 2016; and

(ii) The bond note would be backed by a guarantee extended to the Reserve Bank by one or more international financial institutions: see section 44B(1) of the Reserve Bank Act.

In a press statement on 4 May 2016, the second respondent had disclosed the extent of that financial guarantee. It was in the sum of USD$200 million. It had been issued by the African Export-Import Bank [Afreximbank].

The next significant development was on 4 October 2018.

On that date, the second respondent issued the Exchange Control Directive RT120/2018. The second respondent is empowered to issue such directives by section 35(1) of the Exchange Control Regulations 1996, SI 109 of 1996.

The background to the Exchange Control Directive RT120/2018 is this.

At that time, the economy was still operating in the multi-currency system. Bank accounts were all Nostro foreign accounts. “Nostro” is an accounting term used by banks and monetary authorities. A bank in Zimbabwe will operate a Nostro account with a foreign or correspondent bank in the world financial centres where a float of money designated in foreign currency is maintained. The Nostro account is for settling foreign obligations of the local bank.

The local bank account transactions are replicated or “mirrored” in the Nostro account of the correspondent bank.

Of the basket of currencies in use, the USD was the most predominate. Thus, most Nostro foreign currency accounts were predominantly in USD.

The intrinsic provision of the Exchange Control Directive RT120/2018 directed banks to separate foreign currency accounts into two categories, namely, Nostro foreign currency accounts [Nostro FCAs] and Real Time Gross Settlement [RTGS] foreign accounts [RTGS FCAs].

For the present narrative, RTGS would be the new form of the local currency.

It would eventually be brought into circulation by the Central Government via SI33 of 2019. Its effective date was 22 February 2019: see the Presidential Powers (Temporary Measures) (Amendment of Reserve Bank of Zimbabwe Act and Issue of Real Time Gross Settlement Electronic Dollars (RTGS Dollars) Regulations 2019, SI 33 of 2019.

Exchange Control Directive RT120/2018 was directed at authorised dealers, principally banks.

It addressed a number of issues. It said its purpose was to “operationalise” the measures which had been incepted earlier on to strengthen the multi-currency system to enhance business viability and price stabilization; to increase export generation capacity and to improve market confidence.

It explained, further, that, the measures were aimed at encouraging diaspora remittances, the banking of foreign currency into the Nostro FCAs and to eliminate the co-mingling effect or dilution of Nostro FCAs by RTGS balances.

It was further stated, that, the relationship between the two categorise of the foreign currency accounts would continue to be at parity in order to preserve value for money for the banking public and the investors during the transition to a more market-based foreign currency allocation system. The market based foreign currency allocation system would be implemented once the economic fundamentals had become appropriate.

Before this court, the third respondent has provided some further insights into the thought process behind the implementation of the measures above, particularly the split of people's bank balances into Nostro FCAs and RTGS FCAs.

In summary, and as I have understood him, the multi-currency regime had come with its own problems.

Market distortions, liquidity crunches, cash shortages, and so on, dogged the economy. Public confidence became difficult to maintain. Pressed by international financial institutions, such as the Bretton Woods, it became imperative to initiate currency reforms. Key amongst such reforms would be the adoption of a domestic currency.

As at 1 October 2018, the currencies in use in the economy were both the USD and another which had been created by the State, through borrowing from the second respondent, and the issuance of treasury bills. The latter currency was at first nameless even though it continued to pass off as USD. It was not a physical currency. It was a currency that could only be transacted through the RTGS system.

It was not a genuine USD currency.

The third respondent further explains, that, the purpose of borrowing by Government from the Central Bank, and the issuance of treasury bills, had been to cover the domestic debt of State-owned entities.

So, to achieve the intended reforms, particularly the currency reforms, it became necessary to separate the two types of currencies in use. In pursuance of that policy, and through the second respondent's monetary statement of 1 October 2018, financial institutions had been directed to separate their customers bank accounts into two categories:

(i) Those holding actual dollars of the United States; and
(ii) Those holding this other nameless currency still passing off as USD.

Banks would open Nostro FCAs into which genuine dollars of the United States would be deposited. That other non-United States dollar currency would remain as the existing customers accounts.

Such process of separation would take about ten days. The modalities would be left to the financial institutions themselves. They would use their own data bases, such as the Know Your Customer [KYC] principles, to determine the source of the deposits in their individual customers accounts. Henceforth, deposits or remittances from sources outside the country would be channelled into the Nostro FCAs which would automatically be created by the banks at no cost to their customers. All other deposits would continue to be channelled into the existing accounts.

The separation of the FCAs in terms of the Exchange Control Directive RT120/2018 entailed that foreign currency realized from offshore or foreign currency cash deposits would be credited into individual or corporate Nostro FCAs. The sources specifically listed in these regards included export proceeds, offshore loan proceeds, offshore funds from foreign investors, diaspora remittances, and so on.

On the other hand, all RTGS or mobile transfers and deposits in bond notes or coins would be credited into individual or corporate RTGS FCAs.

The third respondent eventually gave the nameless currency a name. This was through SI 33 of 2019 aforesaid.

That currency would be called the RTGS dollar.

SI33 of 2019 empowered the second respondent to issue the RTGS dollar as an electronic currency. It would be legal tender in Zimbabwe. The RTGS balances, expressed in USD immediately before the effective date, would be, from that date, deemed to be opening balances in RTGS dollars at par with the USD at a rate of one-to-one.

Thereafter, any variance in parity would be determined by market forces on a willing-seller willing-buyer basis.

Bond notes and coins in circulation at the time would continue to be legal tender exchangeable at parity with the RTGS dollar on the same ratio of one-to-one.

All the aforesaid changes and reforms would formally be incorporated into the statute books, primarily through appropriate amendments to the Reserve Bank Act. The details are not important for the moment, save just to mention that this is the gamut of the legislation the applicants want knocked down.

They aver that watching those changes from 2016, they feared the value of their deposit would devalue significantly. To them, the unfolding situation was not without precedence.

They cite the bearer cheque dispensation of 2007 and 2008 when inflation had risen phenomenally. Money would be counted in quintillions of dollars.

When the economy had dollarized, people's savings had been wiped out.

Therefore, to avert another disaster, the applicants say they instructed the first respondent, on 28 November 2016, to “freeze” their account so that no deposits or withdrawals from it would be effected except upon the written instructions by the authorised signatories.

It did not work.

The first respondent cited the policy and legislative changes above and said it had to comply.

The applicants aver that their bank account, which previously reflected a balance of USD142,000 now reflected the same figure - but in RTGS.

Due to the movement of the exchange rate between the USD and the RTGS dollar and the depreciation of the RTGS dollar against all the other major currencies, the applicants allege that their deposit has become a minuscule fraction of its original value.

They submit that this cannot be right. They will not accept it. Apparently, neither will so many other customers: As a matter of fact, there has been persistent litigation over the same subject matter since the changes in the monetary regime.

So, in 2019 the applicants sued the first respondent, their Bank, on the basis of the banker-customer principles of the common law. In the alternative, they sued the monetary authorities, the second and third respondents, in the main impugning Exchange Control Directive RT120/2018.

As mentioned at the beginning of this judgment, the applicants cause found favour with this court. But, they lost on appeal. They are now back again in this court, their cause of action having been re-formulated.

But, inevitably, and quite characteristically in matters such as this, the court has been called upon to first determine the numerous points in limine which have been raised by the respondents.

These are dealt with below, not necessarily in the order that they have been raised in the affidavits, but rather on the basis of their individual likelihood or potential to dispose of the entire application without going into the merits.

Another point in limine raised by the second respondent is that the applicants claim being for the nullification of Exchange Control Directive RT120/2018 on the basis that it is ultra vires section 35(1) of the Exchange Control Regulations 1996, and the consequential claim for the return of the contentious USD142,000, together with the corollary claims for interest and costs thereon, the doctrine of subsidiarity in constitutional matters is such that this court is precluded from determining the claim as a constitutional matter under section 85(1)(a) of the Constitution of Zimbabwe.

Section 85(1)(a) of the Constitution of Zimbabwe entitles any person acting in their own interests to approach a court for the vindication of a fundamental right or freedom, as enshrined, which may have been, or is being, or is likely to being infringed.

Counsel for the second respondent argues, that, it is incompetent for one to seek a relief that can be granted under some other law or legislation without invoking a constitutional provision because norms of greater specificity should be relied upon before resorting to norms of greater abstraction.

The constitutional principle of subsidiarity says that a litigant who avers that his or her constitutional right has been infringed must rely on the legislation that was enacted to protect that right. He or she may not rely directly on the underlying constitutional provision in proceedings which have been brought to protect that right unless he or she wants to attack the constitutional validity or efficacy of the legislation itself: Majome v Zimbabwe Broadcasting Corporation & Ors 2016 (2) ZLR 27 (CC); Moyo v Chacha & Ors 2017 (2) ZLR 142 (CC).

Once legislation to fulfil a constitutional right exists, the Constitution's embodiment of that right is no longer the prime mechanism for enforcement. The legislation is primary. The right in the Constitution plays only a subsidiary or supporting role: Mazibuko & Ors v City of Johannesburg & Ors [2009] ZACC 28.

Counsel for the second respondent's point is that in the present case, the validity of the Exchange Control Directive RT120/2018 can simply be tested against section 35(1) of the Exchange Control Regulations 1996 without invoking the constitutional provision.

The situation now appears such a procedural bog and a legal minefield.

It will be remembered, that, as one of the reasons for upsetting the judgment of this court in the previous proceedings, the Supreme Court held that this court's unprompted consideration of the constitutionality or otherwise of the Exchange Control Directive RT120/2018 violated the doctrine of subsidiarity in constitutional matters.

The Appellate Court said that it had been incumbent for this court to consider and determine the constitutional validity of section 44B(3) and (4) of the Reserve Bank Act before addressing the validity of the Exchange Control Directive RT120/2018 itself, not only because the applicants had specifically sought such relief, but also on the basis of the principle of subsidiarity.

Now, it seems as if the applicants have simply wheeled back into the present proceedings the same problems and the same issues as before.

However, that does not seem to be the case.

The applicants do seek the setting aside of section 44B(3) and (4) of the Reserve Bank Act on the basis of constitutional invalidity. It is just that in their draft order the remedies sought are arranged in such a way that the order for the impeachment of the Exchange Control Directive RT120/2018 comes first ahead of the order for the impeachment of the statutory provisions.

The applicants also seek the impeachment of the other statutory provisions.

But, none of all this should be a reason to non-suit them, or else the whole approach would sound pedantic and a miscarriage of justice.

Whilst the Exchange Control Directive RT120/2018 purported to address the multiple problems dogging the economy at that time, and possibly now, its intrinsic component about which the applicants are severely aggrieved, was the conversion of their deposit from USD to RTGS.

The prelude to this conversion was, firstly, the aforesaid S.I.133 of 2016 (Presidential Powers (Temporary Measures) Amendment of Reserve Bank of Zimbabwe Act and Issue of Bond Notes) Regulations 2019) which became section 44B(3) and (4) of the Reserve Bank Act.

Those intrinsic provisions of the Exchange Control Directive RT120/2018 were also cemented by section 21 of the Finance (No.2) Act No.7 of 2019 the provisions of which eventually became section 44C of the Reserve Bank Act.

The one-to-one parity ratio of the RTGS to the USD became expressed in section 22 of the Finance (No.2) Act No.7 of 2019 aforesaid.

It is all these statutory provisions that the applicants want struck down on the grounds of constitutional invalidity.

There is therefore nothing precluding this court, in the present proceedings, from determining the constitutional validity of the intrinsic provisions of the Exchange Control Directive RT120/2018.

Holistically, what the applicants want in these proceedings is the impeachment of the device by which the monetary authorities managed to convert their USD142,000 bank balance into an RTGS bank balance, and, thereafter, to be able to stop the applicants from accessing the amount in the original currency of the deposit.

The applicants suit is an omnibus approach, presumably because the device employed by the monetary authorities to achieve their goals was not a single statute or directive, but a series of new laws or amendments.

But, significantly, in paragraph 6 of the draft order, the applicants seek the setting aside of the conversion of their USD142,000 to RTGS142,000 on the basis of unconstitutionality, specifically section 71 of the Constitution.

This is the crux of the dispute. It shall be the focus of the determination.

For these reasons, the second respondent's objection No.2 is hereby dismissed.

There remains the aspect of the Exchange Control Directive RT120/2018 allegedly being ultra vires the enabling legislation, namely, section 35(1) of the Exchange Control Regulations.

Unhappily, counsel have not exhaustively and systematically synthesised this particular point, either in their heads of argument or in oral submissions. But, evidently, the applicants can properly motivate the impeachment of the Exchange Control Directive RT120/2018 on the basis that it is ultra vires section 35(1) of the Exchange Control Regulations.

In that regard, there would be no constitutional point before the court. This is a separate enquiry which is not constricted by what went on before.

The contentions of the second respondent cannot give rise to any issues for determination.

It is the settled position at law that a judgment of the Supreme Court, on a non-constitutional issue, whilst not appealable, is open to review if it infringes a fundamental right or freedom: see Martin v Attorney-General 1993 (1) ZLR 153 (SC); Matamisa v Mutare City Council and Another 1998 (2) ZLR 439 (SC); Lytton Investments (Private) Limited v Standard Chartered Bank and Another CC11-18; and Denhere v Denhere CC09-19.

This is a referral from the High Court (“the court a quo”) of a constitutional matter in terms of section 175(4) of the Constitution of Zimbabwe 2013 (“the Constitution”).

The question referred to this Court for determination is:

“Whether or not section 70 of the Police Act, which sets the prescription period of eight (8) months for any person to institute civil proceedings against the Police, is ultra vires section 56(1) and 69(3) of the Constitution and therefore unconstitutional.”

It seems to me that the matter ought to be struck off the roll for two reasons:

(i) The first is that the referral was improperly made. I say this because, the issue of prescription not having arisen in proceedings before the court a quo, that court could not have properly referred the matter to this Court for determination in terms of section 175(4) of the Constitution.

(ii) The second, though ancillary reason, is that the matter set down before the court a quo, at the commencement of which this referral was made, was rendered abortive following the death of the presiding Judge.

The referral of the matter to this Court suffers from these deficiencies and must, as a consequence, be struck off the roll.

The reasons for the foregoing now follow.

The applicant is Patricia Dengezi who operates as an informal trader. The first and second respondents are, respectively, Munyaradzi Nyamururu and Xolisan Moyo. The first respondent was employed by the second respondent as a driver of a commuter minibus owned by the second respondent. The third respondent is Champions Insurance Company (Private) Limited, the third-party insurer of the commuter minibus owned by the second respondent. The fourth and fifth respondents, respectively, are the Commissioner General of Police and the Minister of Home Affairs.

The facts of this matter are largely common cause.

The applicant was in the informal business of vending. On 17 April 2017, while selling her wares from a pavement on Chinhoyi Street, close to Robert Mugabe Avenue in Harare, she was involved in a tragic accident. In her company was her son who was aged one year and two months.

In her declaration, she stated that on that fateful day, three officers of the Zimbabwe Republic Police who were carrying out their duties along Robert Mugabe Street threatened to arrest and intimidated certain commuter minibus drivers who were driving their vehicles in the area. Consequently, the commuter minibuses haphazardly sped off, in the process, driving against oncoming traffic moving along Chinhoyi Street, which is a one-way street.

The applicant alleges, that, as a result of the unlawful actions of the Zimbabwe Republic Police, the commuter minibus that was being driven by the first respondent, though travelling in the proper vehicular direction, veered off the road, hit the applicant and “smashed” her son who was killed immediately.

On 9 April 2018, almost a year later, the applicant sued out a summons commencing action out of the High Court at Harare claiming damages arising out of the said road traffic accident.

In her declaration, she made several claims for damages against the respondents.

The applicant's case before the court a quo was that, although the accident was caused by the first respondent, it was members of the Zimbabwe Republic Police who instigated the melee that resulted in the fatal incident. She alleges that the details from the Zimbabwe Republic Police were reckless and negligent and that they ought to have realized that their unlawful actions and intimidatory behaviour would “unleash [a] foreseeable chain of events including the loss of life.”

The third (Champions Insurance Company Limited), as well as the fourth and fifth respondents (Commissioner General of Police and Minister of Home Affairs), entered appearance to defend, and, in their pleas, denied liability.

The third defendant essentially pleaded that it has no knowledge of the facts forming the applicant's cause of action. On their part, the fourth and fifth respondents have pleaded that the actions of the officers of the Zimbabwe Republic Police were not unlawful and that they were not responsible for the death of the applicant's minor child.

That was the essence of their plea.

They said nothing about prescription and whether the claim should be dismissed on that basis. In their separate pleas, they simply prayed that the claim be dismissed with costs.

The applicant replicated to the pleas.

Following that replication, a pre-trial conference was convened before a Judge of the court a quo. For the purpose of that pretrial conference, the fourth and fifth respondents proposed three issues for determination in their pre-trial minute filed a quo. The proposed issues for determination were stated to be:

“1. Whether or not the plaintiff's claim has prescribed in terms of section 70 of the Police Act [Chapter 11;10].

2. Whether or not the police officers negligently caused the accident in question.

3. Whether or not the plaintiff is entitled to damages which are claimed.”

The record of the proceedings of the court a quo reveals that on 16 May 2019, following a pre-trial conference, three issues were referred for trial. These were:

(i) Whether the police officers controlling the traffic along Robert Mugabe Avenue were negligent;
(ii) If so, the quantum of damages payable by the State; and, lastly
(iii) The extent of damages recoverable from the insurance company.

It bears mention at this stage, that, the parties did not regard as an issue for determination the question whether or not the applicant's claim had prescribed in terms of section 70 of the Police Act [Chapter 11:10] (“the Police Act”).

Just before the trial commenced in the court a quo, on 14 February 2022, following what appear to have been informal discussions with the fourth and fifth respondents counsel, the applicant filed an affidavit in support of a request to refer a matter to this Court in terms of section 175(4) of the Constitution.

Therein, the applicant alleged that two issues had arisen, namely:

(i) The constitutionality of section 23(3)(b) and (c) of the Road Traffic Act [Chapter 13:01] (“the Road Traffic Act”); and of
(ii) Section 70 of the Police Act.

The applicant pertinently averred that:

“24. During the course of proceedings today, despite the fact that the Commissioner General and the Minister of Home Affairs had not insisted on prescription, today, they insisted that my matter was prescribed.

25. I could not bring legal proceedings within six months as I was ill, and, in any event, mourning the loss of my child.

26. I however contend, that, section 70 of the Police Act is clearly unconstitutional.

27. Why, for instance, should the police have protection when every other defendant, including the President or large corporations like Delta or Econet, do not have the same six months protection.

28. Clearly, section 70 is unconstitutional and I make reference to the judgment of Justice Tsanga in another related matter.”

Two days later, on 16 February 2022, the parties then filed what they termed a Statement of Agreed Facts “for reference to the Constitutional Court in terms of Rule 108(4) of the High Court Rules, SI 202/2021.”

Therein, the parties outlined the facts that they considered to be “common cause”.

However, contrary to the fourth and fifth respondents plea, to which reference has already been made, the parties purported to agree that “the fourth defendant, [the] Commissioner General of Police, had pleaded prescription based on the fact that the summons was issued way after the 8 months provided for by section 70 of the Police Act.”

The request for the referral of the questions relating to the constitutionality of section 23(3)(b) and (c) of the Road Traffic Act and section 70 of the Police Act was heard by the court a quo, per MAKOMO J, on 14 May 2022, on the basis of the applicant's affidavit filed in support of the said request and the Statement of Agreed Facts.

The reasons for the court a quo's determination on the request were delivered on 10 October 2022.

The court a quo concluded, that, the request to refer the question relating to the constitutionality of section 70 of the Police Act was not frivolous and vexatious and accordingly granted the request. However, the request relating to the question of the constitutionality of section 23(3)(b) and (c) of the Road Traffic Act was found to be frivolous and vexatious and was therefore refused.

Consequently, the court a quo only referred the question relating to the constitutionality of section 70 of the Police Act to this Court for determination and stayed the proceedings before it pending the determination of the question referred to this Court.

Sadly, on 25 December 2022, before this matter could be heard and finalised by this Court, Mr Justice MAKOMO, the presiding Judge a quo, passed on.

At the commencement of the hearing, the Court directed the parties to advance submissions on the question whether or not the referral was properly made.

Counsel for the applicant submitted, that, the matter was properly referred to this Court.

This, so he submitted, was because, if a constitutional matter arises in non-constitutional proceedings before a lower court, the lower court has no jurisdiction to itself determine the constitutional matter but must refer the matter to this Court.

In counsel for the applicant's view, the fact that the defence of prescription had not been pleaded by the respondents, as defendants, was not a bar to the raising of a constitutional matter.

Further asked during oral submissions whether the death of the presiding judge a quo had any effect on the validity of the referral, counsel for the applicant contended, that, the Judge a quo had become functus officio on the referral and that his judgment referring the constitutional question to this Court remained extant.

As such, the referral can properly be determined by this Court, and, thereafter, the matter can proceed before another judge of the High Court for a final determination of all the issues raised in the pleadings before the court.

Counsel for the fourth and fifth respondents submitted, that, although no evidence had been led before the late Mr Justice MAKOMO, the proceedings had indeed commenced before him. She stated that the “special plea” on prescription was raised in the fifth respondent's pre-trial conference minute but conceded that it was not identified as an issue requiring determination at the trial.

On whether the question relating to the constitutionality of section 70 of the Police Act had arisen before the court a quo, it was her submission, that, the issue indeed arose before MAKOMO J.

The main issue that arises before this Court is whether the court a quo properly referred the matter to this Court. Put otherwise, this Court essentially has to determine whether or not section 175(4) of the Constitution, regulating the referral of constitutional matters to this Court, was complied with.

A further but incidental issue that arises from the facts of this case is whether the passing on of MAKOMO J had any effect on the referral. Put another way, the question is whether the referral, in any event, became a nullity following his demise.

This Court, in various decided cases, has stressed, that, in respect of matters referred in terms of section 175(4) of the Constitution, it is always obliged to determine whether a referral was properly made.

If a referral is not properly before the Court, it will be disposed of, without further ado, on that ground alone: see S v Nyathi CC16–19…,.; Muhala & Others v Mukokera 2019 (1) ZLR 294 (CC); Nyagura v Ncube & Others 2019 (1) ZLR 521 (CC)…,.; and S v Mwonzora & Others CC09–15…,.

The resolution of the question whether the instant referral was properly made requires this Court to examine whether there was a valid plea of prescription before the court a quo, taken on the basis of the prescriptive period set out in section 70 of the Police Act.

There would have been a need for the court a quo to have decided whether the validity of section 70 of the Police Act had been engaged by the facts that were before it the moment a request to refer a constitutional matter to this Court was made.

If the constitutionality of section 70 of the Police Act had not arisen before the court a quo, there would have been no basis to refer a constitutional matter to this Court.

In considering whether there was a valid plea raising the constitutionality of section 70 of the Police Act before the court a quo, there is need for this Court to examine the law governing the raising of special pleas.

Such an examination does not directly involve the interpretation, protection, or enforcement of the Constitution but is a matter connected with a decision on a constitutional matter.

I digress momentarily to discuss what constitutes an issue connected with a decision on a constitutional matter.

Section 167(1)(b) of the Constitution provides that:

“(1) The Constitutional Court —

(a)…,.

(b) Decides only constitutional matters and issues connected with decisions on constitutional matters, in particular, references and applications under section 131(8)(b) and paragraph 9(2) of the Fifth Schedule;”

We have not, as a jurisdiction, had occasion to clearly define what constitutes “issues connected with decisions on constitutional matters” as provided in section 167(1)(b) of the Constitution.

In this regard, it may be necessary to have regard to a number of decisions by the South African Constitutional Court.

Given that this Court only decides constitutional matters, an issue connected with a decision on a constitutional matter must be preceded by a constitutional matter and the determination of the issue must essentially be inseparable from the decision on the constitutional matter.

In Rushesha & Others v Dera & Others CC24–17…, this court expressed the view that the word “connected” in section 167(1)(b) of the Constitution means that the issue must bear a relationship to the decision on a constitutional matter.

In the leading South African case of Alexkor Ltd and Another v Ritchersveld Community and Another 2004 (5) SA 460 (CC)…, the Constitutional Court remarked that “when any factum probandum of a disputed issue is a constitutional matter, then, any factum probans bearing logically on the existence or otherwise of such factum probandum, is itself an issue 'connected with [a] decision on [a] constitutional matter.'”

In S v Basson 2005 (1) SA 171 (CC)…, the court further remarked that “legal and factual matters that need to be decided in order to determine a constitutional matter are issues connected with a decision on a constitutional matter.”

The enquiry that this Court sets out to make, of whether or not section 70 of the Police Act had been engaged and pleaded a quo so as to give rise to a constitutional matter, is clearly an issue connected with a decision on a constitutional matter.

The issue is connected with the decision that this Court is required to make on the constitutional question as to whether or not the present referral is valid.

Any question as to whether or not a referral was made in accordance with the provisions of the Constitution and is valid is no doubt an important question that this court must determine.

In the past, this Court has held that it has no discretion to condone a departure from the Constitutional provisions regulating the referral of constitutional matters: see Mukoko v Commissioner General of Police & Others 2009 (1) ZLR 21 (S)…,. and S v Kisimusi & Others CC01–14…,.

The applicants seek a declaratory order that the termination of their contracts of employment by the respondent was unlawful. Upon the granting of such a declaratory order, the applicants seek an order for their reinstatement to their posts without loss of salary and benefits.

The application is resisted by the respondent who contends, that, the basis of the order is flawed.

Further, and in any event, it is argued on behalf of the respondent that the applicants were offered new contracts where their remuneration would be related to their performance. The applicants refused to sign these new contracts.

A dispute arose, and, subsequently, the respondent terminated the applicants contracts of employment.

The applicants argue, that, the purported termination is an unlawful circumvention of the Labour Act [Chapter 28:01] and its regulations relating to retrenchment.

All the applicants were employed by the respondent on contracts without limit of time as defined in section 12 of the Labour Act.

A dispute has arisen between the applicants and the respondent.

On the 10th and 11th June 2015, the respondent wrote to each of the applicants indicating an intention to terminate their contracts and to replace them with new contracts. The letters, which were similarly worded, were crafted in the following terms:

“NOTICE OF TERMINATION OF CURRENT CONTRACT AND OFFER OF NEW CONTRACT

The macro-economic challenges facing the country are seriously hampering the viability of the company.

Particular reference is made to the poor performance of the company as reflected by the month on month sales figures from last year to date. The sales figures are well below operating costs. These figures show, that, it is impossible for the economy to maintain a fixed or invariable salary structure. It is therefore important for the company to adapt the way it does business to its operating environment to ensure that it survives. The costs of the company must be aligned and positively correlated to productivity.

Your current contract of employment was concluded when the environment was not as hostile on manufacturers as it is now.

At the time that we concluded the employment contract, we agreed that the contract can be terminated on notice other than through dismissal.

Because we still require your services, we now wish to terminate your contract on notice and replace it with one that provides for remuneration based on productivity.

We hereby give you three months notice for the termination of your current contract of employment.

At the same time, we hereby offer you a new performance contract which aligns your remuneration to your productivity.

Your new contract, if accepted, shall become effective on the date that the termination of your current employment contract becomes effective.

Should you want to bring forward the effective date of your new contract, you will be required to waive the notice required to terminate your current contract of employment.

During that period of notice, you shall not enter into any other employment on a full time, part time, or consultancy basis.”

The applicants did not accept the offer of the new contracts, which they viewed as an attempt to retrench them without following the rules and regulations on retrenchment.

In a letter dated 23 June 2016, the applicants instructed their legal practitioners to reject the offer. The letter reads, in part, in the following terms:

“Our clients view is that since you are terminating more than 5 employees, you are obliged to comply with the provisions of section 12C of the Labour Act (Chapter 28:01). In this regard, you cannot purport to act in terms of section 12(4) of the same Act, because, in your letter giving notice of termination, you specifically advise the employees that you are terminating employment due to the unfavourable economic conditions. It is clear, therefore, that the termination is being done on an individual basis per se with respect, the Labour Act provides, in section 12D thereof, that, were an employer is facing financial challenges, the options available to them are to:

(a) Place employees on short-time work; and/or
(b) Institute a system of shifts.

It is clear, with respect, that the employer is not at liberty to simply terminate all its employees, and, thereafter, offer to them fixed term contracts. That is not a special measure contemplated by section 12D of the Act….,.

In the result, the termination of the employees employment contracts, in the manner that you have done, is manifestly unlawful and liable to be overturned by a competent tribunal. It is clear that your true intentions are to vary the employees contracts without their consent….,.”

The letter by the applicants legal practitioners encapsulates the legal arguments that are being put forward by the applicants in this matter.

The issues for determination by this court are essentially these:

(a) Whether or not the relief sought in paragraph 1 of the applicant's draft order is sensu stricto for a declarator.

(b) Whether or not the termination of the applicants employment contracts was an unlawful circumvention of the provisions of the Labour Act and its regulations relating to retrenchment.

(c) Whether or not the respondent was entitled to terminate the applicants on the grounds of repudiation.

In determining whether the order sought is strictly a declarator, it is necessary to have regard to the provisions of section 14 of the High Court Act [Chapter 7:06]. It is provided under this section as follows:

“The High Court may, in its discretion, at the instance of any interested person, inquire into and determine any existing, future or contingent right or obligation, notwithstanding that such person cannot claim any relief consequential upon such determination.”

In Johnsen v AFC 1995 (1) ZLR 65 (H) it was held as follows:

“The condition precedent to the grant of a declaratory order under section 14 of the High Court Act 1981 is that the applicant must be an 'interested person' in the sense of having a direct and substantial interest in the subject matter of the suit which could be prejudicially affected by the judgment the court. The interest must concern an existing, future or contingent right….,.”

I am satisfied, that, the circumstances of this particular application would warrant the granting of a declarator in the exercise of my judicial discretion....,.

The applicants seek a declaratory order to the effect, that, the termination or variation of the applicants contracts is unlawful.

This is an appeal against the judgment of the Labour Court dismissing an application by the appellant to file supplementary heads of argument and setting aside the decision of the appellant to terminate the respondent's contract of employment with itself.

The facts of this case are largely common cause and are these:

The respondent was employed by the appellant as a Medical Officer in 1995. He rose through the ranks to become the Health Services Manager.

In terms of his letter of appointment, the appellant's policies and procedures were incorporated into his employment contract.

On a date that is unclear on the papers, but between February and March 2009, the respondent was involved in a serious road accident whilst about the appellant's business.

The respondent suffered serious injuries to his spine as a result of which he was unable to attend to his official duties from 11 March 2009.

The respondent was allowed to go on sick leave on full pay for a period of ninety (90) days.

At the expiration of that period, the respondent was still unable to resume his duties and took more sick leave.

On 7 September 2009, the appellant's Services Director, a Mr Zvaipa, wrote to the respondent directing him to furnish a copy of his doctor's opinion, failure of which his remuneration and other benefits were to be suspended.

Following further correspondence exchanged between the two, the respondent made it clear, that, he remained in the employ of the appellant until such time as his contract was lawfully terminated.

On 18 September 2009, the appellant then wrote to the respondent advising that since he had exceeded the maximum sick leave permissible in a single year, his contract of employment was being terminated forthwith in terms of section 14(4) of the Labour Act [Chapter 28:01] (“the Act”).

Following this development, the respondent then filed an application for review with the Labour Court on 9 October 2009.

In the application, the respondent alleged, that, the termination was unlawful as the appellant had not followed the procedural steps required at law or in terms of his contract of employment in terminating his employment on medical grounds.

It appears, that, on the same date, the respondent filed what purported to be a notice of appeal against the decision to dismiss him.

It is apparent, however, that, in both cases, the respondent sought an order setting aside the decision to terminate his contract of employment.

The Labour Court treated the matter as an application for review.

After hearing submissions from both parties, the court then reserved its judgment on 15 March 2010.

On 15 November 2010, eight (8) months later, the appellant then filed an application for leave to file supplementary heads of argument. The supplementary heads of argument sought to raise the issue whether or not the Labour Court had jurisdiction to entertain an application for review in the first instance.

The application was opposed by way of a letter to the Registrar. No formal opposing papers were filed.

The Labour Court dealt with the request as part of its judgment.

The court was of the view, that, there should be finality in litigation and that to allow a party to file heads of argument after judgment had been reserved would defeat this principle.

The Court therefore dismissed the application to file supplementary heads of argument.

The court further reached the conclusion, that, an employer does not have the authority to summarily terminate an employee's contract of employment in terms of section 14(4) of the Labour Act [Chapter 28:01], and that, regard being had to the purpose of the Act, namely, the promotion of fair labour standards, the employer was under obligation to conform to the requirements of substantive and procedural fairness and that failure to give notice to an employee of an intention to terminate a contract of employment in terms of section 14(4) of the Act is fatally irregular.

The court further found, that, since the respondent's contract of employment embodied other terms applicable in the event of sickness, the appellant should have fully related to those terms and given the respondent the option either of early retirement or being medicallly boarded.

The court concluded, that, as this had not been done, there had been procedural irregularities, and, consequently, set aside the decision to terminate the contract of employment of the respondent.

It is against that order that the appellant has appealed to this Court.

Both parties to this appeal are agreed that the appeal raises three (3) issues for determination. These are:

(a) Whether or not the Labour Court had jurisdiction to entertain the respondent's application for review at first instance.

(b) Whether the Labour Court erred, as a matter of law, in declining to consider the issue of jurisdiction raised in the application to allow the filing of supplementary heads of argument.

(c) Whether the Labour Court was correct, in holding, as it did, that the right to termination in terms of section 14(4) of the Labour Act was subject to procedure and that any irregularity in those procedures entitled the Labour Court to set aside the termination of the contract of employment.

In particular, whether the appellant was obliged to give the respondent the right to be heard before his contract was terminated, and, secondly, whether the appellant was obliged, in terms of the contract of employment between the respondent and itself, to comply with medical boarding procedures or the availing of an option of early retirement before the contract of employment could be terminated.

The appellant's submission on the question of jurisdiction is this:

The Labour Court does not have unlimited jurisdiction over all labour matters and such jurisdiction it may have has been specifically provided for by law. There is no general right of application to the Labour Court because section 89(1)(a) of the Labour Act restricts the matter to “applications…, in terms of this Act.”

In terms of the Labour Act, disputes are required to be dealt with by a labour officer.

This is the first instance when a hearing takes place once a dispute has been referred to such officer. It is only when the labour officer is unable to settle the dispute properly referred to him, or where he issues a certificate of no settlement and fails to refer the matter to compulsory arbitration or where the labour officer refuses to issue a certificate of no settlement, that a party can apply to the Labour Court in terms of section 93(7) of the Labour Act.

Only in this way can a dispute, such as the present, come before the Labour Court – this being one of the instances of an application contemplated in section 89(1)(a) of the Labour Act.

The intention was never to give the Labour Court the power of review at first instance, but, rather, to place it on the same footing as the Supreme Court. The legislature has been very specific as to the nature of applications to be handled by the Labour Court.

The appellant further argues, that, the power of review, in terms of section 89(1)(d) of the Labour Act, is confined to those instances where the High Court has the power of review in labour matters, and not to matters generally. If indeed the High Court has no review jurisdiction in labour matters, then, section 89(1)(d) confers no power of review on the Labour Court.

The appellant further takes the point that the legislature has established an elaborate chain of investigation and conciliation. The labour officer is the court of first instance and it is to him that the respondent should have directed his complaint.

For the above reasons, the appellant submits, that, the Labour Court did not have jurisdiction to entertain the application for review at first instance.

The respondent, on the other hand, argues, that, the Labour Court has the same powers of review in respect of labour matters as would be exercisable by the High Court in other matters.

For reasons that follow, I am not persuaded that the appellant is correct in its interpretation of section 89 of the Labour Act [Chapter 28:01].

Section 89 of the Labour Act provides, in relevant part, as follows:

“89 Functions, powers and jurisdiction of Labour Court

(1) The Labour Court shall exercise the following functions –

(a) Hearing and determining applications and appeals in terms of this Act or any other enactment; and

(b)…,.

(c)…,.

(d)…,.

(d1) Exercise the same powers of review as would be exercisable by the High Court in respect of labour matters.”

The powers of review exercisable by the High Court are to be found in sections 26 and 27 of the High Court Act [Chapter 7:06]. Those two sections provide:

“26 Power to review proceedings and decisions

Subject to this Act and any other law, the High Court shall have power, jurisdiction, and authority to review all proceedings and decisions of all inferior courts of justice, tribunals, and administrative authorities within Zimbabwe.”

(1) Subject to this Act, and any other law, the grounds on which any proceedings or decisions may be brought on review before the High Court shall be –

(a) Absence of jurisdiction on the part of the court, tribunal, or authority concerned;

(b) Interest in the cause, bias, malice or corruption on the part of the person presiding over the court or tribunal concerned or on the part of the authority concerned, as the case may be;

(c) Gross irregularity in the proceedings or the decision.

(2) Nothing in subsection (1) shall affect any other law relating to the review of proceedings or decisions of inferior courts, tribunals, or authorities.”

The above provisions are, in my view, clear and unambiguous.

In respect of labour matters, the Labour Court shall exercise the same powers of review as does the High Court in other matters.

The jurisdiction to exercise these powers of review is in addition, and not subject, to the power the court has to hear and determine applications in terms of the Labour Act.

In order for a review to be the subject of a hearing, such review must be brought by way of application: see Order 33 Rule 256 of the High Court of Zimbabwe Rules 1971.

Clearly, an application for review is not the type of application contemplated in section 89(1)(a) of the Labour Act.

The suggestion by counsel for the appellant, that the Labour Court has been given the same power of review as would be exercisable by the High Court in respect of labour matters, is, in my considered view, incorrect and inconsistent with the provisions of the Labour Act.

I say this for two reasons:

(i) Firstly, the Labour Act is clear, that, no court, other than the Labour Court, shall have jurisdiction in the first instance, to hear and determine any application, appeal, or matter referred to in section 89(1) of the Labour Act: see section 89(6) of the Labour Act.

In various decisions, the High Court has interpreted this provision to mean, that, the High Court has no jurisdiction in respect of the matters referred to in section 89(1) of the Labour Act: see, for instance, Zimtrade v Makaya 2005 (1) ZLR 427 (HC)…, and DHL International (Pvt) Ltd v Madzikande 2010 (1) ZLR 201 (HC)…,.

In the circumstances, the suggestion that the High Court would have any review powers in respect of labour matters generally would be untenable.

(ii) Secondly, it is clear that the interpretation given relies on a superficial reading of the wording of section 89(1)(d) of the Labour Act.

The section should be understood to mean “the same powers of review in respect of labour matters as would be exercisable by the High Court” or alternatively “the same powers of review, as would be exercisable by the High Court in respect of labour matters.”

Any other reading of the paragraph would clearly result in an absurdity.

The suggestion, that the powers of review enjoyed by the Labour Court are similar to those of the Supreme Court, is equally incorrect.

Section 25 of the Supreme Court Act provides:

“25 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 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 subsection (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 the 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.

(3) Nothing in this section shall be construed as conferring upon any person any right to institute any review, in the first instance, before the Supreme Court or a judge of the Supreme Court, and provision may be made in rules of court, and a judge of the Supreme Court may give directions, specifying that any class of review or any particular review shall be instituted before or shall be referred or remitted to the High Court for determination.”

It is clear from the above section, that, whilst the Supreme Court may exercise the same review jurisdiction, power, and authority as the High Court, no person has the right to institute any review, in the first instance, before the Supreme Court.

In other words, the Supreme Court has the power of review over matters coming before it for adjudication by way of appeal or whenever it comes to the notice of the Court that an irregularity has occurred in any proceedings or in the making of a decision and it is felt that such an irregularity should not be allowed to stand.

The fact that provision has been made for disputes to be first referred to a labour officer, is, in my view, irrelevant.

Review proceedings are concerned with the manner in which a decision is taken and not its merits.

If, for example, a disciplinary authority had no jurisdiction to hear a particular matter, or was biased, or its decision grossly unreasonable, the person aggrieved is empowered to approach the Labour Court and apply for the review of the proceedings.

The fact that, instead of seeking a review, one can approach a labour officer in terms of section 93 of the Labour Act does not, and cannot, affect the review power of the Labour Court provided the requirements for such review are met.

A decision by a Magistrate Court can be the subject of not only review proceedings before the High Court but also appeal proceedings in the normal way. The fact that there is an elaborate appeal procedure would in no way suggest that the High Court has no review jurisdiction in the first instance.

In my view, the Labour Court does have review jurisdiction to deal, in the first instance, with matters involving issues of labour.

Happily, the vexed controversy over the exclusive jurisdiction of the Labour Court on all labour matters versus the High Court's unlimited, original jurisdiction on all matters, which had led to “an unhappy state of law” has been put to rest in Nhari v Mugabe & Ors SC161-20 as follows…,.:

“The same Constitution that conferred original jurisdiction on the High Court over all civil and criminal matters also made provision for the creation of other specialised courts, whose jurisdiction over specialised areas of the law, and the exercise of such jurisdiction, was left entirely to Acts of Parliament.

In other words, it is the Constitution itself which has permitted the establishment of these specialized courts, and, in the same breath, provided for the issue of jurisdiction and exercise of such jurisdiction to be left to an Act of Parliament.

Section 172 of the Constitution, which establishes the Labour Court, is not made subject to section 171 which creates the High Court.

The two sections are in pari materia and must therefore be construed together.

In making provision for the establishment of specialised courts in Acts of Parliament, the Constitution has not in any way attempted to fetter or restrict the jurisdiction that is to be conferred upon such courts, or to make such jurisdiction subject to section 171 which creates and provides for the jurisdiction of the High Court.”

The learned Appeal Judge then goes on to give examples of specialised courts such as military tribunals, tax courts, and customary law courts, and concludes, that, not only would it be absurd to extend the jurisdiction of the High Court to all such specialized courts, but it would get the High Court “bogged down in matters over which it may have very little expertise or petty matters that should ordinarily not detain the court.”

Nhari v Mugabe & Ors SC161-20 was followed recently by Chingombe & Anor v City of Harare & Ors SC177-20, where, following their suspension from employment, the appellants unsuccessfully sought a declaration at the High Court that such suspension was unlawful and consequential relief.

The Supreme Court held that “the High Court had no jurisdiction to issue a declaratur in respect of issues of labour and employment” and that “Section 2A of the Labour Act makes it clear, that, notwithstanding the powers of the High Court to issue declaraturs, the Labour Act prevails over all other laws inconsistent with it.”

Accordingly, it this Court's conclusion that the High Court erred in assuming jurisdiction in a purely labour matter. It should have declined jurisdiction.

In light of the above, it is evident that section 25(2) of the Supreme Court Act confers upon this Court the power of review over matters that have come before it by way of appeal. The powers of review are exercisable upon the discovery of any irregularity in the proceedings which took place in the lower court.

In the circumstances, the matter in the High Court was a matter brought about as a result of the appellant's termination of the respondents contracts of employment on notice and replacing those terminated contracts with new ones which provided for remuneration based on productivity.

That, in my view, is purely a labour matter as enshrined in section 89(1) of the Labour Act.

The High Court did not have jurisdiction to hear the matter. Such an irregularity cannot stand.

Giving due regard to the submissions made by the parties, and the considerations of the law thereon, the court a quo ought to have declined its jurisdiction on the matter as it was a purely labour issue.

This Court, in the exercise of its review powers, sets aside the decision of the court a quo.

Accordingly, it is ordered as follows:

1. The appeal succeeds with each party bearing its own costs.

2. The Court, in the exercise of its review powers, in terms of section 25(2) of the Supreme Court Act [Chapter 7:13], hereby sets aside the decision of the court a quo and substitutes it with the following:

“The application is struck off the roll with costs.”

However, excusing the applicant for the mistake aforesaid does not altogether determine the point in issue.

If section 98(14) of the Labour Act and Article 35 of the Arbitration Act are in pari materia, as I believe they are, then, in my view, a legal finding on the one should be relevant to the other.

I find myself in agreement, with all due respect, with the views of MAKARAU J…, in Mandiringa & Ors v National Social Security & Ors 2005 (2) ZLR 329 (H) and CHIWESHE JP in Herbert Sauramba & Ors v Mitchells Bakery Mutare HH134-10.

In casu, paragraph (c) of the arbitral award was undoubtedly incomplete.

If an award is one that must sound in money and it is not, then, in my view, it is incapable of registration. It is incomplete.

In this case, if the parties went for arbitration to determine the nature and quantum of the terminal package due to the applicant, then, it is rather surprising that they came out of that arbitration with only two-thirds of the award having been quantified.

An order that an employer must pay his ex-employee cash-in-lieu of the leave due to him, and not taken for the period in question, is not complete.

Counsel for the applicant argued that it was complete because the leave days and their sum total were both capable of easy ascertainment.

But, that kind of approach is precisely what was rejected in the cases referred to above.

In particular, in Mandiringa & Ors v National Social Security & Ors 2005 (2) ZLR 329 (H), MAKARAU J said…,.:

“The awards did not compute the loss that each employer had to make good even if he chose to reinstate the respective applicant. It is conceded that while such computations are relatively easy by comparing what a similarly placed employee received in emoluments over the same period, the issue remains, that, the quantum thereof is not part of the award made and was not determined as part of the arbitration proceedings in the presence of both parties. It was not agreed upon in any one of the matters.”…,.

I agree with the learned judge's approach.

In casu, paragraph (c) of the arbitral award did not specify the period the leave was due to the applicant. It did not specify the number of those leave days. Naturally, it did not specify the quantum. It did not state what the respondent's leave policies were.

Before me, none of the parties said they were agreed on any of these items. Thus, the field for potential disagreement on them in the future was vast.

Counsel for the applicant argued, that, this did not render the award incapable of registration.

He conceded, that, it was not possible to sue out a writ of execution to enforce that part of the award if it remained in that form. However, he argued that the parties could always go back to the arbitrator for clarification if a dispute subsequently arose.

But, that precisely is the problem. The award was simply incomplete.

Counsel for the applicant's approach would entail the registration application being made and being heard twice. In my view, there was no conceivable basis for overburdening this court like that. The applicant simply had to submit for registration an award that was complete.

Therefore, I hold that paragraph (c) of the arbitral award by Retired Justice Smith, on 28 June 2012, was incapable of registration as an order of this court because it was incomplete, more particularly, in that it did not sound in money....,.

GOWORA JA, in the case of Matthews v Craster International (Pvt) Ltd SC151-20, had the following to say...,.:

“The same is not true of the Model Law. The law does not require that an award sound in money for purposes of recognition under Article 36. Sight must not be lost of the import of the Model Law and its application. Under Article 35, the law provides for the recognition of awards emanating from beyond our borders in addition to our own. It provides:

'ARTICLE 35 RECOGNITION AND ENFORCEMENT

(1) An arbitral award, irrespective of the country in which it was made, shall be recognised as binding, and, upon application in writing to the High Court, shall be enforced subject to the provisions of this Article and of Article 36.

(2) The party relying on an award or applying for its enforcement shall supply the duly authenticated original award or a duly certified copy thereof and the original arbitration agreement referred to in Article 7 or a duly certified copy thereof. If the award or agreement is not made in the English language, the party shall supply a duly certified translation into the English language.'...,."

This application is made in terms of Article 34 of the Uncitral Model Law which is a schedule to the Arbitration Act [Chapter 7:15] for the setting aside of an arbitral award issued by the arbitrator, K. Segula, on 29 July 2014, in terms of which she quantified the respondent's damages in lieu of reinstatement as $87,640 made up of:

(i) $1,400 May 2003 salary;
(ii) $50,400 damages;
(iii) $35,000 pension contributions; and
(iv) $840 cash in lieu of leave.

The applicant employed the respondent as a Personal Assistant to its President and Chief Executive Officer from 2 September 2002. The relationship between the parties deteriorated when the respondent complained of sexual harassment by her immediate superior. The employment contract was terminated giving rise to a labour dispute which eventually went to arbitration.

On 24 March 2014, the arbitrator issued an arbitral award, the import of which was that the respondent had been unfairly dismissed.

It is not clear from the papers why the matter took almost 10 years to finalise if indeed the respondent had been dismissed on 19 June 2003.

Whatever the case, the applicant did not reinstate the respondent, necessitating a second hearing before the arbitrator for purposes of quantification of damages due to the respondent.

The quantification hearing occurred on 10 June 2014, but not before the applicant had, on 17 April 2014, noted an appeal against the initial award to the Labour Court.

At the conclusion of oral submissions, the parties agreed to make written closing submissions.

The applicant's legal practitioner undertook to submit his on 16 June 2014 after which the respondent was to submit hers. The period was later extended by the arbitrator as a result of which the applicant's submissions were to be filed by 25 June 2014 with the respondent obliging on 30 June 2014.

The closing submissions were eventually filed by both parties and the arbitrator quantified the damages and delivered her award aforesaid on 29 July 2014.

Problems started again.

The applicant appealed against the second award to the Labour Court. The applicant also launched this application for the setting aside of the award.

In its founding affidavit, deposed to by its Finance Manager, McShaman Kembo, the applicant stated that the award ought to be set aside on two (2) grounds, namely:

(i) That, it deals with a dispute not contemplated by or not falling within the terms of the arbitration, or contains decisions on matters beyond the scope of the arbitration in that while the arbitrator was only seized with the issue of damages in lieu of reinstatement, she had gone beyond her mandate by dealing with and awarding a sum of $35,000 in respect of pension contributions.

(ii) The second ground is that the award is in conflict with the public policy of Zimbabwe in the sense, that, there was a breach of the rules of natural justice, in particular, the audi alteram partem rule, in that, after the parties had made oral submissions, the arbitrator allowed the respondent to produce further evidence which she went on to rely upon without according the applicant an opportunity to respond.

The evidence was in the form of a lengthy document with the title “Application in support of quantification of damages.” The write up itself is ten (10) pages to which is attached another eight (8) paged document called 'Zimbabwe All Industry Salary Survey.'

The applicant complains, that, the documents contain evidence which was not made available at the oral hearing of 10 June 2014, and that, as a result, it did not respond to it. Significantly, the arbitrator went on to rely on that un-rebutted evidence in awarding the respondent damages in lieu of reinstatement and $35,000 as pension contributions.

The respondent opposed the application, and, in her lengthy opposing papers, she complained about the non-joinder of the arbitrator in the proceedings and disputed having introduced new evidence to the prejudice of the applicant.

According to her, all that is contained in her submissions dated 30 June 2014, which I have already cited, was available at the hearing on 10 June 2014.

If the applicant had chosen not to address those issues in its closing written submissions, that should certainly not be her problem.

To the respondent, the application is another ruse being employed by the applicant to deny her justice and to wear her down.

At the hearing, the respondent, however, conceded that the issue of pension contributions was not only outside the scope of the arbitration, it had also not been brought up at the hearing on 10 June 2014.

That notwithstanding, the arbitrator made an award for it....,.

Regarding the existence of an appeal to the Labour Court, I agree with counsel for the applicant, that, an Article 34 application is available to a litigant outside the appeal procedure and now that section 171(1)(a) of the Constitution of Zimbabwe has reinstated the jurisdiction of this court on labour matters which had been ousted by the provisions of section 89(6) of the Labour Act [Chapter 28:01] there is nothing stopping me from exercising jurisdiction.

Section 171(1)(a) of the new Constitution provides:

“The High Court has original jurisdiction over all civil and criminal matters throughout Zimbabwe.”

To the extent that the Constitution overrides any Act of Parliament, there can scarcely be any doubt that section 171(1)(a) of the Constitution overrides section 89(6) of the Labour Act.

What this means is that, by clear constitutional provision, this court has original jurisdiction over all matters, including those of a labour nature, where prior to the new constitutional order, the Labour Court enjoyed exclusivity.

Considering that this matter has been set down and argued before me, while the appeal is still pending in the Labour Court, it is expedient that I indulge the parties and determine the matter.

This is a Chamber application in which the applicant, the Zimbabwe Open University (hereinafter referred to as "the University"), seeks the following relief –

(a) An order that the appeal, SC25-12, be heard on an urgent basis; and

(b) A stay of the sale in execution of the University's property, attached in pursuance of an arbitration award it has appealed against.

The first respondent is Gideon Magaramombe (hereinafter referred to as "Magaramombe"). The second respondent is the Deputy Sheriff of Harare.

Magaramombe was formerly employed by the University as a lecturer.

The University terminated Magaramombe's contract of employment. Magaramombe now disputes the termination of employment and contends it was unlawful. The disputed termination was referred to an arbitrator for determination. The dispute was determined in favour of Magaramombe and the arbitrator ordered that Magaramombe be reinstated, or that, alternatively, he be paid damages in lieu of reinstatement.

The University appealed to the Labour Court against the arbitrator's decision in terms of section 98(10) of the Labour Act [Chapter 28:01] (hereinafter referred to as "the Act"). The University also applied to the Labour Court for an order suspending the arbitral award pending the hearing of the appeal. That application was made in terms of section 92E(3) as read with section 89(1)(a) of the Labour Act.

Magaramombe elected to be paid damages in lieu of reinstatement and requested the arbitrator to quantify the damages due to him.

During the quantification proceedings, the University unsuccessfully applied for the stay of proceedings, on the grounds, that, it had applied to the Labour Court for the suspension of the arbitral award pending the appeal.

The application for the stay of proceedings was turned down by the arbitrator on the ground, that, an appeal against an arbitral award and an application for interim relief do not have the effect of suspending an arbitral award.

The arbitrator thereafter awarded Magaramombe the sum of $77,302 as damages.

On 26 September 2011, the University appealed against the award of damages and also applied for a review of the award.

On 27 September 2011, Magaramombe applied to the High Court for registration of the arbitral award.

The University did not oppose the application for registration, as it was of the view that there was no need to oppose the application for registration since it had already applied for the suspension of the award to the Labour Court.

The University assumed, that, the execution of the award was dependent on the outcome of the application to the Labour Court.

The Labour Court granted the University a stay of execution of the arbitral award pending the hearing of the appeal on 3 November 2011.

The High Court registered the arbitral award on or about 14 November 2011.

After the registration of the arbitral award with the High Court, Magaramombe sought to execute the award despite the suspension of the award by the Labour Court.

The University launched an urgent application to stay the execution to the High Court.

The basis of the University's urgent application was that the arbitral award that was executed had been suspended by the Labour Court pending the hearing of an appeal against that award by the Labour Court.

The High Court dismissed the Chamber application.

The University noted an appeal against the dismissal.

The University now applies, in Chambers, for the appeal to be set down on an urgent basis and for an order staying execution pending the determination of that appeal.

In dismissing the urgent application, the learned Judge had this to say at pp4-5 of the cyclostyled judgment (HH61-12):

"The last preliminary point was that the matter was not urgent….,. Ms Mberi submitted, that, the applicant sat on its laurels and only acted when the day of reckoning was at hand. She contended, that, the applicant should have acted on 27 November 2011 when it was served with the notice of registration of the award.

Mr Mpofu made contradictory submissions on the failure to oppose registration.

The first was that the noting of (the) appeal in the Labour Court against the arbitral award automatically suspended the award. The second was that it was hopeless to oppose without first obtaining interim relief from the Labour Court stopping the implementation of the arbitral award.

If the applicant believed that it was on (a) firm footing on the first ground, then, all the more reason for it to oppose registration on that point. But, as events that transpired after it obtained interim relief shows (sic), the applicant believed that implementation could only be stayed by obtaining relief from the Labour Court.

Mr Mpofu did not dispute Ms Mberi's submission, that, the applicant was aware of the judgment of Dhlodhlo supra, that the Labour Court judgment could not stop a High Court order because the latter is a court of superior jurisdiction…,.

I agree with Ms Mberi, that, at the very least, with this foreknowledge, the applicant, knowing that the first respondent was seeking registration of the arbitral award, should have diligently searched for the outcome of the application, especially after it received the interim relief it sought in order to forestall it. It was aware that the purpose of seeking registration was to execute. Armed with the interim order, the applicant was duty bound to either oppose the registration, which was granted on 15 November 2011, or to file an application such as the present one soon thereafter.

I find that it waited until the day of reckoning precipitated by the attachment of 26 January 2011 (2012?) to stay the execution. It did not act with diligence. It sat on its laurels and did not act when the time to act presented itself."

My understanding of the above excerpts of the judgment is that the court a quo made the following two determinations –

(a) The matter was not urgent; and

(b) The execution of the arbitral award could not be stayed because the award had became a High Court judgment whose execution cannot be suspended by the Labour Court.

In this Chamber application, counsel for the University essentially argued, that, execution of the award of the arbitrator was suspended by the Labour Court, which preceded the registration of the award in the High Court. Consequently, Magaramombe could not execute the award, despite its registration with the High Court, as the execution of the award had been suspended by the Labour Court by the time it was registered.

In other words, the award that was registered was a suspended award which could not be executed.

Counsel for Magaramombe, on the other hand, initially raised two preliminary points.

She submitted, that, the Supreme Court had no jurisdiction to hear the Chamber application because there was no valid appeal before the Supreme Court.

She argued, that, the court a quo simply ruled that the matter was not urgent, and, such ruling was interlocutory. She contended, that, the University had not obtained the leave of the court a quo to appeal. Leave to appeal not having been sought and granted, there can be no valid appeal before the Supreme Court.

It was also counsel for Magaramombe's submission, that, on the authority of Dhlodhlo v The Deputy Sheriff for Marondera and Three Ors HH76-11, even if the order issued by the Labour Court had stayed execution of the award, such an order was of no force and effect because the award had since been registered with the High Court and thus became a High Court order which cannot be suspended by an order of an inferior court, namely, the Labour Court.

The learned Judge in the court a quo was probably correct in concluding, that, the University had authored the urgency of the matter before him by delaying the launching of the urgent application until the last minute.

I also accept the submission of counsel for Magaramombe, that, a determination of whether or not a matter is urgent is interlocutory. An appeal against such a determination would certainly require the leave of the court a quo. If such leave were granted, the superior court can only interfere with such a ruling on the basis of a misdirection or gross unreasonableness.

In casu, as I have already stated, the learned Judge went beyond ruling on the urgency or otherwise of the matter.

The court a quo determined, that, the execution of the arbitral award could not be stayed on the basis of a suspension order issued by the Labour Court. The learned Judge reasoned, that, the Labour Court was inferior to the High Court. Consequently, the Labour Court could not suspend a judgment of the High Court. He concluded, that, once a judgment is registered in the High Court it becomes a judgment of the High Court and cannot be interfered with by the Labour Court.

This determination by the court a quo is not interlocutory. It is a definitive and final determination and therefore appealable by the University without the need for leave of the court a quo.

On this basis, I am satisfied, that, the Supreme Court is properly seized with the matter and that the relief sought in this Chamber application relates to a matter with which the Supreme Court is properly seized.

In this Chamber application, as I have already stated, the University seeks the relief that the appeal be set down on an urgent basis and that the execution of the arbitral award be stayed pending the hearing of the appeal.

Two issues fall for determination in this Chamber application:

(1) Whether or not this matter should be set down on an urgent basis; and

(2) Whether or not the University is entitled to the interim relief of a stay of execution of the arbitral award pending the determination of the appeal.

I will deal with the second issue first, namely, the entitlement of the University to the interim relief of a stay of execution.

The factors to be taken into account in considering the grant of interim relief are now well settled. These are –

(1) Whether or not the party seeking the relief has a prima facie right; in casu, whether the University has a prima facie right to stay the execution of the sale of the attached property pending the determination of the appeal;

(2) Whether or not the applicant, in this case the University, will suffer irreparable harm if execution of the arbitral award is not stayed and the appeal succeeds; and

(3) The balance of convenience.

Dealing first with the issue of whether or not the University has a prima facie right to the stay of execution pending the determination of the appeal.

In effect, the University is appealing against the court a quo's determination that the Labour Court's order suspending execution of the arbitral award is ultra vires because the Labour Court cannot interfere with the process of a superior court.

Whether or not the court a quo was correct in this conclusion is a matter that the Appeal Court will have to determine.

In the event of the Supreme Court determining that issue in favour of the University, the University will have a clear right or entitlement to a stay of execution of the arbitral award pending the hearing of the appeal by the Labour Court.

On this basis, alone, the University has established a prima facie case.

In my view, the University has not only established a prima facie case but has very good prospects of success on appeal for the following reasons:

The University appealed against the arbitral award in terms of section 98(10) of the Labour Act. Section 98(10) of the Labour Act provides as follows:

"98. Effect of reference to compulsory arbitration under Parts XI and XII

(10) An appeal on a question of law shall lie to the Labour Court from any decision of an arbitrator appointed in terms of this section."

Section 98 of the Labour Act confers on the University the right of appeal against the determination of the arbitrator on a question of law.

Having noted an appeal against the arbitral award, the University also applied to the Labour Court, in terms of section 92E(3) as read with section 89(1)(a) of the Labour Act for the stay of execution of the arbitral award.

Section 93E(3) as read with section 89(1)(a) of the Labour Act provides as follows:

"92E. Appeals to the Labour Court generally

(3) Pending the determination of an appeal, the Labour Court may make such interim determination in the matter as the justice of the case requires."

And:

"89. Functions, powers and jurisdiction of Labour Court

(1) The Labour Court shall exercise the following functions –

(a) Hearing and determining applications and appeals in terms of this Act or any other enactment….,."

Quite clearly, the Labour Act conferred on the University the right to apply for the suspension pending appeal of the arbitral award in terms of the above section.

On 3 November 2011, the Labour Court granted the University a stay of execution of the arbitral award. The Labour Court, in doing so, was intra vires the above cited provisions of the Labour Act.

On 14 November 2011, the High Court, upon application by Magaramombe, registered the arbitral award. Upon the registration of the arbitral award, the award became a judgment of the High Court: see section 92B(3) and (4) of the Labour Act.

I entertain serious doubts as to whether the mere registration of the arbitral award with the High Court has the effect of erasing or rendering null and void the prior order of the Labour Court suspending execution of the arbitral award.

That, however, is an issue that will be determined by the Appeal Court.

This is an appeal against the decision of the High Court ('the court a quo') which ordered the second appellant to cancel caveat 844/2000; ZN caveat 26/2017 and caveat 77/2019 endorsed on Deed of Transfer 3188/83.

After considering the evidence and the submissions made by counsel, the court issued an order in the following terms:

“1. The appeal be and is hereby allowed with costs.

2. The judgment of the court a quo be and is hereby set aside and substituted with the following:

'(i) The preliminary point on jurisdiction be and is hereby upheld with costs.

(ii) The court declines jurisdiction to hear this matter.'”

A request has been made for the court's reasons for the quoted order. The reasons follow hereunder.

The first respondent is the occupier of a certain immovable property being Umguza Agricultural Lots of Umvutcha and Reigate registered under title deed 3188/83. On 25 August 2000, the land was listed in the Gazette Extraordinary under General Notice 405 of 2000. Pursuant to the gazetting of the land, the first appellant caused caveats 844/2000 and 77/2019 to be endorsed on the deed of transfer.

Caveat XN 26/2017 was further endorsed on the title deed at the instance of the second appellant.

On 15 January 2009, the first respondent approached the High Court under HC2291/08. The court granted an Order declaring that his land was not subject to any act of acquisition or resettlement by the first appellant or any other person or persons acting under the instructions of the first appellant.

It also ordered, that, the portion of the land held under the deed of transfer 740/95, in the name of Paul Medley, and occupied by virtue of an agreement of lease by the second applicant therein, one Troy Robert Maidwell (who is not a party in this matter), was not subject to any act of acquisition or resettlement by the first appellant or “by any person or persons acting under the instructions of authority” (sic) of the first respondent.

The High Court also declared, that, the appellant was, in respect of the land referred to in paragraphs 4 and 5 above “estopped from doing or carrying out any act connected with the subdivision or acquisition of the said land.”

The first appellant was also ordered to immediately desist from any further act of demarcation of the said portions of land.

On 1 December 2022, the first respondent approached the court a quo with an application for the upliftment of caveats 844/2000, XN 26/2017 and 77/2019 placed on his title deeds by the second appellant under the instructions of the first appellant and also of the second respondent.

In his founding affidavit, the first respondent averred, that, the caveats were unwarranted as they had no lawful basis. He stated that the second appellant maliciously, and unlawfully, caused a caveat to be placed on his property.

Pursuant to the placing of the said caveat 77/2019, the first appellant had been sending people to view and survey his property.

The first respondent averred, that, the unwarranted caveats were interfering with his “constitutional right of enjoying my (“his”) property rights.”

Further, that the first appellant had no legal standing to justify the caveats as they had been nullified by the court order under HC2291/08.

The first respondent also contended, that, if not lifted, the caveats would greatly prejudice him as he would not be able to transfer title without the approval of the caveator in circumstances where there was in existence an order that estopped the first appellant, or any other person acting on the first appellant's instructions, from interfering with the land held under the Deed of Transfer 3188/83.

The first appellant raised a preliminary objection to the effect, that, the court a quo lacked jurisdiction to deal with the matter.

He averred, that, section 2(3) of the Constitutional Amendment (No.17) Act of 2005 prohibited any person having interest in the land from applying to a court to challenge any of its acquisition. He contended, that, this approach was “confirmed in sections 72(3) and (4) of the Constitutional Amendment (No.20) Act 2021.”

He also averred, that, Schedule 7 was inserted into the former (1980) Constitution by section 16B of Constitutional Amendment (No.17) Act of 2005.

On the merits, the first appellant averred, that, the judgment which the first respondent alleged to have cancelled or nullified the caveats did not mention the caveats on the land or their fate.

He also averred, that, the first respondent no longer had real ownership rights over the farm because the farm now formed part of State agricultural land under Schedule 7 of the Constitution, which the court had no jurisdiction to preside over.

The second respondent appeared in court and submitted, that, Caveat XN 26/2017 was endorsed on the Deed of Transfer 3188/83 in error. He conceded that it had to be cancelled. His being cited in this appeal would be because he was a party in the proceedings a quo. However, he has not participated in this appeal.

In determining the preliminary objection on jurisdiction raised by the appellants, the court a quo found, that, the jurisdiction of the courts of law has been ousted from any case in which a challenge to the acquisition of agricultural land secured in terms of section 16B(2)(a) of the former Constitution of Zimbabwe 1980 is raised.

The court, however, went on to note that the matter before it was not a challenge to the acquisition of agricultural land as envisaged in the Mike Campbell (Pvt) Ltd & Ors v Minister of National Security Responsible for Land, Land Reform and Resettlement & Anor SC49-07 case.

It found, that, the case before it was about the cancellation of caveats endorsed on the Deed of Transfer of the first respondent's property.

The court further noted, that, the law does not take away the right of a litigant in the position of the first respondent to seek a remedy against what it considers an unlawful endorsing of caveats on his property.

The court further found, that, the first respondent was not challenging the acquisition but was challenging the placing of caveats on his property. The contention that the cancellation of the caveats would have the effect of reversing the acquisition of the first respondent's land was found to be not persuasive.

The court thus found the preliminary objection on jurisdiction raised by the first appellant to be without merit.

On the merits of the application, the court a quo found, that, the appellants did not challenge the existence of the court order in HC2291/08. It found, that, the argument by the first appellant, that, the order in HC2291/08, per NDOU J, was a brutum fulmen was not persuasive as our jurisprudence does not permit a litigant to choose to ignore a court order on the basis that it is a brutum fulmen.

It also noted, that, the whole argument advanced by the appellants was that the order in HC2291/08 was wrongly made.

With regard to this argument, the court a quo found, that, it was not up to it to vary or alter or declare invalid an order of a judge of parallel jurisdiction as it had no such competence.

The court a quo also found, that, the order of the High Court was still extant and that it was therefore binding unless overturned on appeal or through rescission proceedings. The court opined, that, it could not simply ignore the said order of the High Court.

It thus found, that, the existence of caveats 844/2000 and 77/2019 was not supported by law.

This was so as the order of the High Court in HC2291/08 declared that land held under Deed of Transfer 3188/83 was not subject to any act of acquisition or resettlement. The court thus ruled, that, the first appellant had no caveatable interest over the property.

In the result, the second appellant was ordered to cancel the Caveats 844/2000, ZN Caveat 26/2017 and Caveat 77/2019 endorsed on the first respondent's title deed.

Aggrieved by the decision of the court a quo, the appellants have approached this court on the following grounds of appeal:

1. The court a quo erred and grossly misdirected itself on a point of law by dismissing the appellant's preliminary point, that, this Court had no jurisdiction to adjudicate this matter at all as the farm was listed under Schedule 7 of the Constitution hence its title vests in the State.

2. The court a quo misdirected itself by cancelling the caveats which had been endorsed on the first respondent's title deed no. 3188/83 under caveats 844/2000, ZN caveat 26/2017 and caveat 99/2019. The effect of the cancellation would have reversed the acquisition of the appellant's land from the State which cannot be done by a court of law....,.

Counsel for the appellants argued, that, the court a quo had no jurisdiction to deal with the application for the upliftment of the caveats. He argued, that, in terms of section 16B of the former Constitution of Zimbabwe, all land that was gazetted and itemized in Schedule 7 of the Constitution, was considered as State land.

Counsel further argued, that, the land in question was gazetted in 2000 and again in 2008 and was then listed under Schedule 7 of the Constitution.

He submitted, that, any challenge to the gazetting of the land had to be done by way of amendment of the Constitution. Further, that the court a quo erred in removing the caveats as the effect of such act was to reverse the acquisition of the land.

Counsel argued, that, the gazetting of the land, when it was done, was not challenged and neither was the acquisition. He argued that Commercial Farmers Union v The Minister of Agriculture, Land and Rural Resettlement and Others 2010 (2) ZLR 576 overrides all and any orders to the contrary, and, as such, the order of the High Court, per NDOU J, in HC2291/08, on which the first respondent based its claim to the land, had been overtaken by events.

Counsel argued, that, the judgment of NDOU J had therefore become a brutum fulmen.

Counsel for the first respondent argued, that, section 16B of the Constitution dealt with land acquired for agricultural purposes only. Counsel conceded, that, there could be no challenge to agricultural land acquired by the State as per the decision in Commercial Farmers Union v The Minister of Agriculture, Land and Rural Resettlement and Others 2010 (2) ZLR 576.

He however argued, that, where the land in dispute was not agricultural land, then, such acquisition could be challenged.

Counsel further argued, that, the land in dispute had already been proclaimed, under S.I. 212 of 1992, as land within the boundaries of the City of Bulawayo, and that, such land formed part of Bulawayo City Council land and could not be regarded as agricultural land.

He maintained that the acquisition was done in error.

One issue arises for determination from the two grounds of appeal and the submissions made by counsel before this Court. The issue is: Whether or not the court a quo had jurisdiction to deal with the matter.

The appellants bone of contention, as discernible from their grounds of appeal, and from the submissions made before the Court, is that the court a quo grossly misdirected itself on a point of law by dismissing the appellant's preliminary point. The said preliminary point was to the effect, that, the court a quo had no jurisdiction to adjudicate the matter at all as the farm was listed under Schedule 7 of the Constitution and the title thereto thus vested in the State.

In finding that it had jurisdiction to deal with the matter, the court a quo found that the matter before it was not one of acquisition of land, but, of the cancellation of caveats that had been registered against the property in issue by the first appellant.

The court also took into account the judgment handed down by the High Court in HC2291/08, per NDOU J, which it considered to be extant.

However, the appellants view was that after the appellant's land had been gazetted it automatically became State land by operation of the law and that the judgment by NDOU J had been rendered a brutum fulmen.

The appellants also contended, that, by virtue of section 16B of the former Constitution, the jurisdiction of the courts, in respect of disputes arising out of acquisition of land, was ousted and that the court a quo therefore lacked the requisite jurisdiction to deal with the application for the upliftment of the caveats.

In his opposing papers in the court a quo, the first appellant (as first respondent) stated as follows:

“…,. (T) His Honourable Court has no jurisdiction to adjudicate this matter…,. The section 16B of Constitutional Amendment (No.17) Act of 2005 inserts Schedule 7 into the 1980 Constitution of Zimbabwe to the effect, that, all the farms listed on General Notices published in the Gazette or Gazette Extraordinary prior to the 8th of July 2005 were acquired and vested in the State.

Section 2(3) of the Amendment prohibited any person having interest in the land from applying to a court to challenge any of the acquisition. This approach is confirmed in sections 72(3) and 72(4) of the Constitution Amendment (No.20) Act 2021.

Further reference is made to the cases of Mike Campbell (Pvt) Ltd & Ors v Minister of National Security Responsible for Land, Land Reform and Resettlement & Anor 2008 (1) ZLR 17 (S) p43F-G to 44A and Naval Phase Farming (Pvt) Ltd and Ors v Minister of Lands and Rural Resettlement and Anor SC50-18 wherein both courts confirm and reiterate that section 16B of the former Constitution effectively ousts the power of courts to adjudicate issues relating to acquired State land under Schedule 7.”

He further averred that:

“In the present case, the Applicant's former properties, under title deed 3188/83, were acquired and listed in the Gazette Extraordinary on 25 August 2000…, which is a copy of the Gazette Extraordinary under general notice (sic) 405 of 2000. The General Notice referred (to) falls under Schedule 7 of the Constitution.”

The first respondent's contention, as articulated in its answering affidavit, was that:

“The provisions of sections 72(3) and subsection 4 of the same section of the Constitution Amendment (No.20) Act 2021 are not denied. I, however, am not challenging the acquisition of my land, for, it was, in the first place, not subject to any act of acquisition or resettlement.

Subsections (3) and (4) of section 72 of the Constitution do not affect my application.

This is so as the court order granted in 2009 clearly states that the land held under title deeds (sic) 3188/83, deeds of transfer registered in my name, are not subject to any act of acquisition or resettlement.

I am neither seeking compensation as it is one of the actions prohibited by the sections cited by the first Respondent. In the present case, the properties held under title deed 3188/83 are still mine. The court order stopped any acts connected with the acquisition of my land. My right to claim any action over property under title deed 3188/83 hasn't been taken over by any operation of law.”

The High Court order, in HC2291/08, was handed down on 15 January 2009. This is a date that followed after the dates of the gazetting of the first respondent's land in 2000 and also in 2008.

The listings of the first respondent's land in the gazettes indicated, that, the land had been acquired by the State. After having been acquired by the State, the first respondent ceased to be the lawful owner of the land, and, any dispute arising over the acquisition of the land was to be settled through the provisions of section 16B of the former Constitution.

This Court, in Campbell & Anor v The Minister of National Security Responsible for Land Reform and Resettlement & Anor SC49-07…, had an opportunity to interpret the import of section 16B of the Constitution of Zimbabwe, Amendment (No.17) 2005 as follows:

“By the clear and unambiguous language of section 16B(3) of the Constitution, the Legislature, in proper exercise of its powers, has ousted the jurisdiction of courts of law from any of the cases in which a challenge to the acquisition of agricultural land, secured in terms of section 16B(2)(a) of the Constitution, could have been sought.

The right to protection of law for the enforcement of the right to fair compensation, in case of breach by the acquiring authority of the obligation to pay compensation, has not been taken away.

The ouster provision is limited, in effect, to providing protection from judicial process to the acquisition of agricultural land identified in a notice published in the Gazette in terms of section 16B(2)(a).

An acquisition of the land referred to in section 16B(2)(a) would be a lawful acquisition.

By a fundamental law, the Legislature has unquestionably said that such an acquisition shall not be challenged in any court of law. There cannot be any clearer language by which the jurisdiction of the courts is excluded.”…,.

The sentiments expressed in Mike Campbell (Pvt) Ltd & Ors v Minister of National Security Responsible for Land, Land Reform and Resettlement & Anor 2008 (1) ZLR 17 (S) were equally applied in the case of Commercial Farmers Union v The Minister of Agriculture, Land and Rural Resettlement and Others 2010 (2) ZLR 576 wherein this Court interpreted section 16B(3) of the Constitution as ousting the jurisdiction of the courts to enquire into the legality or otherwise of the acquisition of land in terms of section 16B(2)(a) of the Constitution.

Section 16B of the former Constitution inserted Schedule 7 into the 1980 Constitution to the effect, that, all of the farms listed on General Notices published in the Gazette prior to 8 July 2005 were acquired and vested in the State.

The first respondent's farm was acquired by the State as listed in the Gazette Extraordinary on 25 August 2000. It was also listed in the gazette for the second time in 2008.

It naturally followed, that, the first respondent had no legal cause or justification to be aggrieved by the caveats placed over land which had been acquired by the State. He had no legal cause to justify any approach to the courts for the redress of the nature that he sought before the court a quo. The caveats registered against the title deeds are caveats that relate to the State's land and not the appellant's land.

The first respondent's right to lay any claim over the property, or to have the caveats registered over the title deed of the property cancelled, was overtaken and extinguished by the law once the land was gazetted.

Conversely, the court had no jurisdiction to entertain the first respondent's application.

After section 16B of the former Constitution had been interpreted by the Court in Commercial Farmers Union v The Minister of Agriculture, Land and Rural Resettlement and Others 2010 (2) ZLR 576, the judgment of NDOU J was effectively rendered a brutum fulmen, hence, the first respondent could not have relied on it as an extant judgment defining his rights over the land.

In any event, the judgment by NDOU J was handed down in January 2009 when the court had ceased to have jurisdiction, as clearly enunciated in Mike Campbell (Pvt) Ltd & Ors v Minister of National Security Responsible for Land, Land Reform and Resettlement & Anor 2008 (1) ZLR 17 (S).

The court a quo fell into error in not taking into account the provisions of section 16B(5) of the former Constitution which provided that:

“(5) Any inconsistency between anything contained in —

(a) A noticed itemised in Schedule 7; or

(b) A notice relating to land referred to in subsection (2)(a)(ii) or (iii); and the title deed to which it refers or is intended to refer, and any error whatsoever contained in such notice, shall not affect the operation of subsection (2)(a) or invalidate the vesting of title in the State in terms of that provision.”…,.

In TBIC Investments (Pvt) Ltd & Ors v The Minister of Lands and Rural Development & Ors 2018 (1) ZLR 137, at 141G–142C, BHUNU JA stated:

“In order to protect and keep the land reform programme on course, Parliament, in its wisdom, amended the former Constitution. The intention of the legislature was to automatically validate the acquisition of all agricultural land identified and listed under Schedule 7 for purposes of the land reform programme on or before 8 July 2005 regardless of any errors or mistakes that may otherwise have nullified the acquisition in the normal run of things.”

The disputed land was acquired under the former Constitution, of which section 16B(2), as amended, provides as follows:

(1) Notwithstanding anything contained in this Chapter –

(a) All agricultural land –

(i) That was identified on or before the 8th July 2005, in the Gazette or the Gazette Extraordinary, under the proviso to section 5(1) of the Land Acquisition Act [Chapter 20:10], and which is itemized in the Seventh Schedule, being agricultural land required for resettlement purposes…,.

(ii)…,.

(iii)…,.
is acquired by and is vested in the State with full title therein with effect from the appointed day….,.

(5) Any inconsistency between anything contained in –

(a) A notice itemized in Schedule 7; or

(b) A notice relating to land referred to in subsection (2)(a)(ii) or (iii);

And the title deed to which it refers, or is intended to refer, and any error whatsoever contained in such notice, shall not affect the operation of subsection (2)(a) or invalidate the vesting of title in the State in terms of that provision.”

The learned Judge of Appeal proceeded to interpret the section by stating, inter alia, at 142D–E as follows:

“The effect of the above section (section 16B(5)) was to revive, resuscitate, and validate the acquisition of all identified agricultural land listed in the 7th Schedule for resettlement purposes prior to 8 July 2005 regardless of any errors or withdrawals in the acquisition process. No limitation has been imposed on the acquisition process once the land is shown to have been gazetted and listed in the 7th Schedule prior to 8 July 2005.

The language used in section 16B(5) of the former Constitution is clear and unambiguous, admitting no ambivalent interpretation. The only meaning to be ascribed to the section is that once land is gazetted and listed in Schedule 7 it automatically stands acquired by the State with full title by operation of law. The mere fact that the notice was at one time withdrawn or expired is irrelevant.”…,.

He proceeded at 142G:

“Once the land had been identified and itemised under Schedule 7, title to the land automatically vested in the State with the result, that, it automatically became State property by operation of law. In consequence whereof the previous owner was divested of his title to the land and stripped of all rights of ownership to the acquired land thereto.”…,.

For the sake of completeness, paragraphs (ii) and (iii) of section 16B(2) of the former Constitution provide as follows:

“(ii) That is identified after the 8th July 2005, but before the appointed day, in the Gazette or Gazette Extraordinary under section 5(1) of the Land Acquisition Act [Chapter 20:10], and, which is itemised in Schedule 7, being agricultural land required for resettlement purposes; or

(iii) That is identified in terms of this section by the acquiring authority after the appointed day in the Gazette or Gazette Extraordinary for whatever purpose, including, but not limited to –

A. Settlement for agricultural or other purposes; or

B. The purposes of land re-organisation, forestry, environmental conservation, or the utilisation of wildlife or other natural resources; or

C. The relocation of persons dispossessed in consequence of the utilisation of land for a purpose referred to in subparagraph A or B;”

The first respondent was thus mistaken when he described the property as “his property” because it became State land upon it being identified and listed or itemised in Schedule 7.

The court was thus in agreement with counsel for the appellants in his submission articulated in the following manner:

“The effect of a Schedule 7 listing is that the acquisition of the farm cannot be reversed by any application to a court of law. The only method to delist the farm is an amendment of Schedule 7 to the Constitution….,.

The respondents went on to challenge the acquisition of the farm via the back door, by mounting an application for upliftment of caveats in complete violation of the Constitution which provides that an acquisition cannot be challenged in a court of law.

The only remedy which the law provides following an acquisition is an application for compensation for improvements effected on the land prior to its acquisition in terms of the Constitution or in terms of SI 62/2020.”

The fact that the respondent later on had a court order against the acquiring authority is irrelevant. That order is brutum fulmen. It is incapable of being implemented.

Once the land under title deed 3188/83 was identified and itemised under the 7th Schedule “title to the land automatically vested in the State with the result that it became State property by operation of law.”

The acquisition was validated “regardless of any errors or withdrawals in the acquisition process.”

In Commercial Farmers Union v The Minister of Agriculture, Land and Rural Resettlement and Others 2010 (2) ZLR 576, CHIDYAUSIKU CJ put it as follows at p12 of the judgment:

“In the face of the clear language of section 16B(3) of the Constitution, a litigant can only approach the courts for a review and for a remedy relating to compensation.”

Further, at p27 he said:

“In conclusion, I would summarise the legal position as follows -

(1) Former owners and/or occupiers whose land has been acquired by the acquiring authority, in terms of section 16B(2)(a) of the Constitution, cannot challenge the legality of such acquisition in a court of law. The jurisdiction of the courts has been ousted by section 16B(3)(a) of the Constitution. See also the Mike Campbell case supra.”

The argument by counsel for the first respondent, that, the land in dispute had already been proclaimed, under SI 212 of 1992, as land within the boundaries of the City of Bulawayo and that such land formed part of Bulawayo City Council land, falls away on the basis of the above authority.

In the face of section 16B of the former Constitution, and the subsequent promulgation of the Land Acquisition Act [Chapter 20:10], reference to S.I. 212 of 1992 cannot be and is of no avail to the first respondent. The Constitution and the statute prevail over the Statutory Instrument.

The Statutory Instrument cannot, and does not, override the Constitution and the statute.

In any event, the S.I. that the court has been able to find is titled:

“Statutory Instrument 212 of 1992 Control of Goods (Rice Prices) (Amendment) Order, 1992 (No.4).”

The first respondent may have erroneously cited the wrong S.I. number, but, even if he did, and there is in existence a Statutory Instrument that says what he alleges it to say, on the basis of the above analysis, it does not save the first respondent's case.

The court a quo simply ignored the fact, that, the dispute before it was in relation to acquired land, hence, its jurisdiction had been ousted by virtue of section 16B of the former Constitution.

The fact, that, the court a quo lacked jurisdiction to deal with the matter has been further confirmed by the incorporation of section 72(3) and (4) of the new Constitution of Zimbabwe 2013 which provide as follows:

“(3) Where agricultural land, or any right or interest in such land, is compulsorily acquired for a purpose referred to in subsection (2) -

(a) Subject to section 295(1) and (2), no compensation is payable in respect of its acquisition, except for improvements effected on it before its acquisition;

(b) No person may apply to court for the determination of any question relating to compensation, except for compensation for improvements effected on the land before its acquisition, and no court may entertain any such application; and

(c) The acquisition may not be challenged on the ground that it was discriminatory in contravention of section 56.

(4) All agricultural land which -

(a) Was itemised in Schedule 7 to the former Constitution; or

(b) Before the effective date, was identified in terms of section 16B(2)(a)(ii) or (iii) of the former Constitution; continues to be vested in the State, and no compensation is payable in respect of its acquisition except for improvements effected on it before its acquisition.”…,.

Until or unless the Constitution has been amended to allow the first respondent to approach the courts for redress, the courts have no jurisdiction to entertain any disputes relating to acquired land.

The Court found merit in the arguments and contentions presented by the appellants counsel to the effect, that, the court a quo lacked jurisdiction to hear the matter.

The court a quo fell into error when it failed to consider that the first respondent's land was gazetted land and hence it constituted State land. The court erroneously found that it had jurisdiction to deal with the matter and failed to take into account that the jurisdiction of the courts, in relation to matters relating to the acquisition of land, was ousted by section 16B of the former Constitution.

The judgment of the High Court, in HC2291/08, fell away once section 16B(5) of the former Constitution was enacted and the court a quo fell into error in not taking this into account.

By applying for the cancellation of the caveats, the first respondent acted on the premise that he was the landowner of the land held under title deed 3188/83. He was not, because, as at that stage, title to the land already vested in the State.

The court a quo, as would have been the case with any other court, thus had no jurisdiction to entertain the first respondent's application, premised as it was on the basis, that, the land in issue was his property.

It was not.

The court a quo's view that the judgment or order in HC2291/08 was still in existence was, thus, also erroneous.

It is on this basis that this Court found that the appeal was meritorious and proceeded to issue the order reproduced in paragraph 2 above.

In Mike Campbell (Pvt) Ltd & Ors v Minister of National Security Responsible for Land, Land Reform and Resettlement & Anor 2008 (1) ZLR 17 (S), at pp16-17, the court went further to observe that:

“It must be stated at this stage that the law as embodied in the provisions of section 16(B)(2)(a)(i) of the Constitution and the acquisitions of the pieces of agricultural land which resulted from its operation had no reference at all to the race or colour of the owners of the pieces of land acquired. There was no question of violation of section 23 of the Constitution to be considered in this case. No more shall be said on the alleged violation of section 23 of the Constitution.”

This means, that, the issue of the race of the expropriatee does not arise.

In declining to exercise its jurisdiction, the court a quo also referred to section 295 of the 2013 Constitution which provides as follows:

“(1) Any indigenous Zimbabwean whose agricultural land was acquired by the State before the effective date is entitled to compensation, from the State, for the land and any improvements that were on the land when it was acquired.”

The legislature is presumed to know the law under which the expropriation of the indigenous Zimbabweans land took place.

It indicates its awareness of the law under which such acquisitions took place by making reference to 'before the effective date' after which it states what the law provides for those who were affected.

The solution provided under section 295(1) of the 2013 Constitution is not proffered as an alternative. It is proffered as the only solution to ameliorate the loss of the affected indigenous Zimbabweans.

If there was more, the legislature would have said so.

Counsel for the appellants did not address us on the existence of the appellants right to approach the courts challenging the acquisition of their farm nor the relaxation of the bar barring courts from entertaining such a challenge.

It can therefore not be said, that, indigenous Zimbabweans whose land was acquired can challenge the acquisition of their farms before the courts.

It is apparent from the above, that, the court a quo did not err when it declined to exercise its jurisdiction over the appellants application.

These are the reasons for the order that the Court granted on 23 May 2023.

The parties have been in and out of the courts embroiled in ferocious battles over the ownership, possession, and occupation of a certain piece of property commonly known as the Remainder of Subdivision C of Plot 6 of Lots 190, 191, 193, 194 and 195 of Highlands Estate of Welmoed also known as Number 41 Ridgeway North, Highlands, Harare (the property).

The Supreme Court has since finally resolved the ownership dispute in the respondent's favour in judgment number SC24-22. The court order granted the respondent the right to vindicate its property from the applicant who is in occupation of its property against its will.

In a bid to enforce its court given right of eviction, the respondent successfully sued the applicant for eviction in the High Court (the court a quo). On 29 November 2023, the court a quo issued an eviction order in case number HC666/23 under judgment number HH637-23.

The applicant has now filed an urgent chamber application for an interim interdict to stay execution pending the determination of his appeal against the court a quo's judgment.

The application is opposed....,.

At the commencement of this hearing, counsel for the first respondent raised three (3) points in limine. I deal with them in sequence....,.

(ii) The second objection is that the draft order is incompetent in that it is requesting a judge sitting in chambers to issue a substantive order setting aside paragraph 4 of the court a quo's order.

The paragraph is couched in the following terms:

“This order shall remain operational notwithstanding any appeal that may be filed by the respondent.”

I take the robust view, that, this is an issue best suited to be determined by the Appellate Court. At the moment, it is incumbent upon me to deal with the real issues and substance of the dispute before me without getting bogged down with technicalities.

This is an appeal against the whole judgment of the High Court (court a quo) in which the court granted an application for the registration of the judgment of the Labour Court amounting to US$177,408 in favour of the respondent.

The labour dispute between the appellant and the respondent has been raging on for the past twenty-three years, dating back to 2000. The respondent was employed by the appellant as a Personnel Manager. Sometime in 2003, the appellant suspended the respondent on allegations of misconduct. The respondent challenged the suspension, resulting in a judgment by this Court, in 2012, in which the suspension was declared a nullity.

Following the nullification of the suspension, the appellant opted to retire the respondent in 2012.

The appellant paid the respondent his salaries and benefits for the period from January 2009 up to 2012 in United States dollars.

The payment for that period did not raise any dispute between the parties as the country had dollarized.

A dispute, however, arose as to the payment of salaries and benefits for the period extending from 1 April 2003 to 31 December 2008 which were denominated in Zimbabwean dollars.

The respondent filed an application in the Labour Court for the quantification of the outstanding salaries and benefits for the period 1 April 2003 to 31 December 2008 in United States Dollars.

The total amount he sought was US$1,001,381=14.

The Labour Court held, that, the respondent was not entitled to payment of benefits. It awarded him an amount of US$177,408 being arrear salaries and cash in lieu of leave with interest on the total sum payable at the prescribed rate.

The respondent filed an application in the court a quo for the registration of the Labour Court judgment in terms of section 92B(3) of the Labour Act [Chapter 28:01]. The respondent submitted, in the court a quo, that, the Labour Court judgment was sounding in money and could therefore be registered.

The appellant opposed the application.

It argued, that, the judgment of the Labour Court was unenforceable as it was denominated in United States dollars, which currency had ceased to be lawful currency. It submitted, that, the Labour Court erred in ordering payment in United States dollars for a debt that was incurred prior to 22 February 2019.

It was further argued, that, the judgment was therefore contra bonos mores and not registrable.

It was also argued, that, an application for leave to appeal was pending in the Labour Court under case number LC/H APP/293/2020, and, the court a quo should defer determining the application pending determination of the appeal.

In response, the respondent argued, that, the appellant was not being denied the right to pay in local currency using the Reserve Bank of Zimbabwe auction rate. He denied there being a pending application for leave to appeal. He also argued, that, the existence of an application for leave to appeal was not a valid reason for refusing to register a judgment.

The court a quo found, that, the respondent had managed to satisfy the requirements for registration of the judgment of the Labour Court. It further found, that, the issue of currency of the judgment is a question of law which could only be entertained by the Supreme Court, on appeal, in terms of section 92F of the Labour Court Act. It held, that, registration of the judgment was not contrary to public policy.

The court a quo further held, that, the appellant could not seek to rely on an intended appeal as a ground for opposing the registration of the judgment, and that, in any event, the noting of an appeal does not suspend the decision appealed, and, consequently, the registration as well.

The court a quo proceeded to grant the application for the registration of the Labour Court judgment.

Aggrieved by the court a quo's decision, the appellant noted the present appeal on the following grounds:

“1. The court a quo erred and misdirected itself in relying on an authority neither argued nor brought to the attention of the parties.

2. The court a quo further erred and misdirected itself in failing to exercise judicial function to determine an application before it contra the specific provision of section 92B(3) of the Labour Act.

3. The court a quo further erred in failing to distinguish between and conflating the determination of the executability of a judgment with an appeal addressing the correctness of a judgment.

4. The court further erred and misdirected itself in registering and ordering the enforcement of judgment whose enforcement is proscribed and contra statutory authority per section 22 of Finance Act and section 2 of S.I. 142/19, section 4(1)(d) of SI 33/19 and section 12A(1), 92B(3) and section 94 of the Labour Act.”

Counsel for the appellant submitted, that, to order execution on an unlawful currency is contrary to the law. He argued, that, the order issued by the court a quo was not sounding in money as it was denominated in United States dollars which, at the time, was not legal tender. He further argued, that, the court a quo could therefore not register a judgment which ordered payment of arrear salaries in illegal tender.

Counsel for the appellant argued, that, the court a quo failed to exercise its judicial function when it held, that, the matter raised a point of law which could only be determined by the Supreme Court. He submitted, that, the court a quo ought to have determined whether or not the amount in issue was legal tender rather than avoid the issue.

Counsel for the respondent submitted, that, the court a quo was not required to go into the merits of the case as doing so would be usurping the powers of the Labour Court. He submitted, that, the court a quo did not misdirect itself in failing to deal with the issues raised by the appellant. He further submitted, that, the court a quo cannot amend the Labour Court's judgment.

Counsel submitted, that, the judgment was sounding in money thereby satisfying the requirements for registration.

He argued, that, the issue that the judgment was not sounding in money was never raised in the court a quo and could not therefore be raised for the first time before this Court.

He further submitted, that, if the Labour Court's judgment was unlawful, as alleged, the appellant ought to appeal against that decision.

Two issues fall for determination:

(i) Firstly, whether the Labour Court judgment was registrable; and

(ii) Secondly, whether the court a quo ought to have entertained the question of law raised by the appellant, that, the judgment was denominated in an illegal currency.

The requirements to be satisfied in an application for the registration of an award were listed in Biltrans (Pvt) Ltd v Minister of Public Service, Labour and Social Welfare & Ors 2016 (2) ZLR 306. MALABA DCJ…, citing with approval the remarks by CHIWESHE JP…, in Olympio & Ors v Shomet Industrial Development HH191-12, remarked…, as follows:

“In registering an arbitral award, the High Court and the Magistrates Court are not carrying out a mere clerical function.

While the registering Court may not go into the merits of the award, since its duty is to provide an enforcement mechanism and not to usurp the powers of the Labour Court, it must be satisfied, before registering an award, that all the necessary formalities have been complied with.

In Olympio & Ors v Shomet Industrial Development HH191-12, CHIWESHE JP at 1 and 2 of the cyclostyled judgment, outlining the requirements for registering an arbitral award, stated:

'The purpose of registration is merely to facilitate the enforcement of such an order through the mechanism availed to the High Court or the Magistrate Court, namely, the office of the Deputy Sheriff or the Messenger of Court, respectively….,.

In an application such as the present one, this Court is not required to look at the merits of the award - all that is required of this Court is that it must satisfy itself that the award was granted by a competent arbitrator, that the award sounds in money, that the award is still extant and has not been set aside on review or appeal, and that the litigants are the parties, the subject of the arbitral award. There must also be furnished, a certificate given under the hand of arbitrator….,.'

The requirements that must be satisfied before the High Court or the Magistrates Court grants an application for registration of an award are:

(a) The award must have been granted by a competent arbitrator.

(b) The award must sound in money.

(c) The award is still extant and has not been set aside on review or appeal.

(d) The litigants are the parties to the award.

(e) The award must be certified as an award of the arbitrator.”...,.

As correctly noted by the court a quo, whilst both cases related to the registration of arbitral awards, they apply with equal force to the registration of Labour Court judgments....,.

The appellant submitted, that, it filed an application in the Labour Court for leave to appeal against the Labour Court judgment on the basis, that, the judgment is denominated in a currency that was not legal tender at the time the judgment was rendered.

The issue whether the Labour Court could render the judgment as it did is one that the court a quo shied away from determining, and, in our view, correctly so.

The court a quo stated that:

“The issue of the currency is one that is a question of law. It can only be entertained by the Supreme Court in terms of section 92F of the Labour Court Act. It is telling, that, the respondent, in its draft founding affidavit for an intended application for leave to appeal, raised the same issue relating to S.I. 33/19 as read with the Finance Act (No.2 of 2019). The same was raised in the draft notice of appeal. The respondent clearly realised that this Court cannot purport to review the order of the Labour Court or treat it as an appeal. It is ironic that the respondent persisted with this issue at the hearing when clearly it had no merit.”

The request by the appellants, for the court a quo to determine the issue of the currency, was, in essence, a request for the court to determine the lawfulness or correctness of the decision of the Labour Court.

The court a quo did not have the power to determine the propriety of the judgment of the Labour Court. To do so would amount to delving into the merits of the matter before the Labour Court.

The court a quo could only do so in the exercise of its review or appeal powers.

The limitation of the court a quo's powers was addressed in the remarks cited above from Vasco Olympio & Ors v Shomet Industrial Development HH191-12 and Biltrans (Pvt) Ltd v Minister of Public Service, Labour and Social Welfare & Ors 2016 (2) ZLR 306 where it was clearly pronounced, that, the court a quo would not have the power to delve into the merits of the case in an application for the registration of an award, and, in this case, a Labour Court judgment.

All that the court a quo was required to do was to determine whether the requirements for registration of the judgment had been met.

It appears the appellant was mindful of the limitation of the court a quo's powers.

It argued in this Court, that, the court a quo ought to have deferred determining the application pending determination of an application for leave to appeal against the Labour Court judgment filed before the Labour Court.

It appears, from the respondent's heads of argument, that, the application was filed on 23 October 2020 and was regarded as abandoned by the Registrar of the Labour Court on 1 December 2020.

Having failed to file an application for the reinstatement of the application for leave to appeal within the time stipulated in the Labour Court Rules 2017, the appellant filed an application for condonation for the late filing of the application for reinstatement on 27 May 2021.

The appellant did not disclose to this Court the status of the application for condonation.

The court a quo could not be expected to defer the determination of the application for registration of the judgment in circumstances where there was no such application for leave pending in the Labour Court.

The court a quo did not misdirect itself in holding, that, even if there was an application for leave before the Labour Court, such application was not a barrier to the registration of the judgment.

It is trite, that, even an appeal from the Labour Court does not suspend the judgment appealed against.

The only circumstances where the High Court would be constrained to determine an application for registration is where an application for suspension of a judgment of the Labour Court is pending determination.

In Biltrans (Pvt) Ltd v Minister of Public Service, Labour and Social Welfare & Ors 2016 (2) ZLR 306…, it was stated that:

“An application for registration of an arbitral award presupposes, that, there is no application made to or pending before the Labour Court for an interim order suspending the execution of the decision appealed against. A party cannot submit, for registration, an arbitral award he or she knows, or ought to know, is subject to an interim determination suspending its execution pending appeal. The High Court or Magistrates Court would be required to take into account the fact, that, there is, at the time of entertaining the application for registration, no application pending before the Labour Court for an interim determination suspending the execution of the decision appealed against.”

An application for an interim determination suspending the execution of the decision of the Labour Court is made in terms of section 92C(3) of the Labour Act.

It is common cause, that, there is no appeal against the judgment of the Labour Court before this Court which would be the basis for the application for an interim determination suspending the execution of the decision of the Labour Court.

The court a quo was correct in holding, that, an appeal on a question of law lies to the Supreme Court from any decision of the Labour Court: see section 92F of the Labour Court Act [Chapter 28:01].

In the absence of an appeal against the Labour Court judgment, this Court is constrained to determine the question relating to the correctness of the judgment of the Labour Court where the matter is not properly before it.