This is an appeal against part of the judgment of the High Court,
Harare, handed down on 16 October 2013. The specific part of the
judgment appealed against reads as follows:
“(1)….,.
(2)
The alternative relief is hereby granted, and, accordingly, the
applicant is granted leave, in terms of section 6(b) of the
Reconstruction of State Indebted Insolvent Companies Act [Cap 24:27] to
institute any action or proceedings in any court or tribunal of
competent jurisdiction in Zimbabwe against SMM HOLDINGS (PVT) LTD (under
reconstruction), to claim payment of US$4,350,000 or part thereof
together with interest thereon at the prescribed rate of 5% per annum
and costs of suit or any other relief available to the applicant at law.
(3) The respondent shall bear 50% of the applicant's costs of suit.”
Although the appellant filed detailed grounds of appeal, it is agreed that two main issues arise in this appeal. These are:
(a) Whether there was a proper application before the court a quo; and
(b)
Whether the court a quo was correct in holding, that, the appellant
could not consider the merits of the respondent's complaint in relation
to the question of the grant of leave.
In addition to these two
issues, the appellant also attacks the decision by the court a quo to
award fifty per cent of the costs to the respondent.
The background to the dispute may be summarised as follows:
The
appellant was appointed Administrator of SMM Holdings (Private) Limited
(“SMM”), an entity under reconstruction, on 6 September 2004.
The
appellant, on 9 October 2009, entered into an agreement with the
respondent in terms of which the latter purchased and paid for certain
chrome mining claims belonging to SMM (Mashava Area “E”) for
US$4,350,000.
Despite registration of the mining claims in the
respondent's name, and its assumption of operations on the location in
question, it met with fierce resistance from a third party who claimed
ownership of the same location. The third party also made it virtually
impossible for the respondent to enjoy the benefit of the claims that it
had purchased.
Lines of communication that thereafter opened
between the respondent and the appellant, to resolve these problems,
yielded no positive results.
This led the respondent, by letter
dated 3 August 2012, to apply to the appellant for leave to commence
legal proceedings against SMM Holdings (Private) Limited (SMM) for
cancellation or confirmation of cancellation of the sale agreement as
well as a refund of the purchase price paid.
The application to
the appellant was made in terms of section 6(b) of the Reconstruction of
State Indebted Insolvent Companies Act [Chapter 24:27] (“the
Reconstruction Act”).
Having, for over one year, received no
response from the appellant, the respondent approached the High Court
claiming, in the alternative, the relief that it was granted and
against which the appellant has filed this appeal. The application was
made in terms of section 3(1)(b) and 4(1) of the Administrative Justice
Act [Chapter 10:28].
Sections 3 and 4 of the Administrative Justice Act read as follows:
“3. Duty of Administrative Authority
(1)
An administrative authority which has the responsibility or power to
take any administrative action which may affect the rights, interests or
legitimate expectations of any person shall —
(a) Act lawfully, reasonably and in a fair manner; and
(b)
Act within the relevant period specified by law, or, if there is no
such specified period, within a reasonable period after being requested
to take the action by the person concerned; and…,.
(c)
Where it has taken the action, supply written reasons therefor within
the relevant period specified by law, or, if there is no such specified
period, within a reasonable period after being requested to supply
reasons by the person concerned.
4. Relief Against Administrative Authorities
4(1)
Subject to this Act and any other law, any person who is aggrieved by
the failure of an administrative authority to comply with section three
may apply to the High Court for relief….,.
(2) Upon an application being made to it, in terms of subsection (1), the High Court may, as may be appropriate -
(a) Confirm or set aside the decision concerned;
(b) Refer the matter to the administrative authority concerned for consideration or reconsideration;
(c)
Direct the administrative authority to take administrative action
within the relevant period specified by law, or, if no such period is
specified, within a period fixed by the High Court.
(d) Direct
the administrative authority to supply reasons for its administrative
action within the relevant period specified by law, or, if no such
period is specified, within a period fixed by the High Court;
(e)
Give such directions as the High Court may consider necessary or
desirable to achieve compliance by the administrative authority with
section three.
(3) Directions given in terms of subsection (2)
may include directions as to the manner or procedure which the
administrative authority should adopt in arriving at its decision, and
directions to ensure compliance by the administrative authority with the
relevant law or empowering provision.”
The court a quo did not
grant any of the forms of relief listed in section 4(2) of the
Administrative Justice Act, but, took it upon itself to grant the leave,
that is, take the action that the appellant qua administrator should
have taken, as requested by the respondent.
I will now consider the appellant's grounds of appeal.
1. Whether or not the application was properly before the court a quo
Counsel
for the appellant argues, that, section 4 of the Administrative Justice
Act is an embodiment of the common law grounds for review and the
respondent should accordingly have brought a review application before
the court a quo in terms of Order 33 of the High Court of Zimbabwe Rules
1971.
By essentially bringing proceedings which “in substance”
were for review, without complying with the provisions of the law
relating to review proceedings, the respondent, contends counsel for the
appellant, had employed the wrong procedure. The result was that the
application was not properly before the court a quo.
Counsel for
the appellant further challenges what he refers to as the
“contradictory” conclusion of the court a quo, in that, after concluding
that the application was not a review, it went on to justify its
interference on the basis of review principles.
Counsel for the
respondent, on the other hand, contends that the application a quo was
not one for review, and, therefore, Rule 257 of the High Court Rules did
not apply.
The application a quo was primarily a constitutional
challenge to specific provisions of the Reconstruction Act. In the
alternative, the respondent sought leave to sue the appellant.
Further, and in any event, a proper case had been made out by the respondent for leave to be granted.
Lastly,
he contended that at the time the application for leave was filed in
the court a quo, the request to the Administrator for the same relief,
dated 3 August 2012, had not been adjudicated upon, meaning that there
was no decision, nor were there any proceedings to be reviewed.
In holding that the application before him was not one for review, the judge a quo stated as follows in his judgment:
“Mr
Mpofu, for the respondent, protested that a wrong procedure was
employed as section 4 of the Administrative Justice Act is an embodiment
of the common law grounds for review. For that reason, the applicant
should have brought a review application in terms of Order 33 of the
High Court Rules.
I do not agree.
Section 4 allows an
aggrieved party to seek recourse in this Court. It makes no reference to
a review application. I agree with Mr Moyo, for the applicant, that, if
the legislature desired to provide for a remedy of review in terms of
Order 33, it would have specifically said so. It however elected to
create a statutory remedy in terms of which a party is entitled to
approach this court, by application, where the administrative authority
has come short.”
I find little to fault in the reasoning of the court a quo on this point.
As
correctly stated, section 4(1) of the Administrative Justice Act (“the
Act”) provides that the statutory relief referred to by the judge a quo
may be sought by way of an application to the High Court. However, no
specific format for such application is prescribed.
While a
review in terms of the High Court Rules is a special form of
application, there is nothing in section 4(1) of the Administrative
Justice Act to suggest, that, any other form of application for judicial
review would, in any way, offend against that sub-section as long as it
meets the requirements of an ordinary court application.
I find this position to be fortified by section 26 of the High Court Act [Chapter 7:06] which reads as follows:
“PART V
POWERS OF REVIEW
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.
27. Grounds for Review
(1) Subject to this Act and any other law, the grounds on which any proceedings or decision 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.”…,.
My understanding of this
provision is that the High Court Act contemplates, and permits, review
proceedings that are brought before it in terms of “any other law.”
Specifically,
judicial review may be done in terms of another statute, for instance,
the Administrative Justice Act, as happened in casu.
Further to
this, and as clearly indicated above in subsections (1) and (2) of
section 27 of the High Court Act, grounds for review are not limited to
those particularised in that section. Other laws can properly dictate
the consideration of, or specify, other grounds on the basis of which
proceedings of a lower court or tribunal may properly be reviewed.
Counsel
for the appellant also argues, that, an allegation to the effect that a
public official has failed to give reasons, or to make a decision
altogether, is a reviewable issue. He has referred the court to a number
of decisions to support this contention: Muchapondwa v Madake and
Others 2006 (1) ZLR 196 (H); and S v Mapiye SC214-88.
These
authorities, in the main, relate to judicial officers who, after hearing
argument in matters before them, made and communicated their decisions
to the parties, but failed to provide reasons for such decisions.
In addressing this oversight, the learned judge in S v Makawa & Another 1991 (1) ZLR 142 (SC)…, stated as follows:
“Although
there are indications in this case that the magistrate may have
considered the case, a large portion of those considerations remained
stored in his mind instead of being committed to paper. In the
circumstances, this amounts to an omission to consider and give reasons.
There is gross irregularity in the proceedings….,.: see R v Jokonya
1964 RLR 236….,.”
In casu, it is evident that the appellant, who
must have had reasons for not acting on the request made to him by the
respondent, chose not to commit them to paper nor communicate them to
the latter. The reasons therefore remained “stored” in his mind.
Based
on the authorities cited, I am satisfied that the failure by the
appellant, as an administrative authority, to take action when properly
requested to do so, constituted an irregularity which may properly be
the subject of judicial review.
However, for the reasons stated
above, I am not persuaded that the only form of review proceedings, in
the circumstances of this case, would be those in terms of Order 33 Rule
257 of the High Court Rules.
It should be noted, that, in any
case, an attempt to satisfy the requirements of Order 33 of the High
Court Rules, in particular Rule 259, given the circumstances of this
case, might present practical difficulties.
The Rule provides as follows:
“259. Time within which proceedings to be instituted
Any proceedings by way of review shall
be instituted within eight weeks of the termination of the suit,
action, or proceeding in which the irregularity or illegality complained
of is alleged to have occurred: provided that the court may, for good
cause shown, extend the time.”…,.
The appellant
in casu took no action at all following the respondent's request for
leave to sue SMM Holdings (Private) Limited (SMM). There was effectively
no 'termination' to speak of, since, by its nature, the appellant's
inaction was a continuing default. The ascertainment of a date from
which to reckon the eight (8) weeks stipulated in Rule 259 of the High
Court Rules would thus be problematic.
I find, in any case, that,
the appellant's conduct is contemplated by section 3(1)(b) of the
Administrative Justice Act, cited above.
His failure to act
within a reasonable period, after being requested to do so by the
respondent, constituted a ground for review, which, albeit not listed in
section 27 of the High Court Act, was nevertheless established in terms
of “any other law”.
Accordingly, the respondent was within its
rights to approach the High Court with an application in terms of the
Administrative Justice Act, for the relief that it had requested from
the appellant but did not secure.
In all respects, therefore, I
find there is no merit in the ground of appeal that alleges that the
application a quo was not properly before that court.
