GWAUNZA JA: 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 s 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$4 350 000.00 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[1].
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 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 s 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 s 3 (1) (b) and 4(1) of the Administrative Justice Act [Chapter
10:28]. Sections 3 and 4 of the 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 (my
emphasis)
(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. (my
emphasis)
(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 s 4 (2) of the 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.
- Whether or not the application was properly before the
court a quo.
Mr Mpofu, for the appellant,
argues that s 4 of the 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 Mr Mpofu, had
employed the wrong procedure. The result was that the application was not
properly before the court a quo. Mr Mpofu 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.
Mr Girach for the respondent,
on the other hand, contends that the application a quo was not one for
review and therefore r 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
s 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, s 4 (1)
of the Administrative Court 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 s 4(1) 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 s 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
emphasis)
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 s 27, 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.
Mr Mpofu 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 (S) – 214/88). 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 at 146 D-E) 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 r 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 r 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.” (my emphasis)
The appellant in casu took no
action at all following the respondent's request for leave to sue 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 8 weeks stipulated in r 259 would thus be
problematic.
I find, in
any case, that the appellant's conduct is contemplated by see 3(1)(b) of the
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 s 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 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.
- 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.
This ground of appeal challenges the competency of the order made by the court a
quo, whose effect was to effectively rule out any opportunity for the
appellant to consider the merits of the respondent's request to it, for leave
to sue an entity under its administration. As already indicated, the
court a quo did not grant any of the specific forms of relief provided
for in s 4 (2) of the Act. The judge a quo, being fully cognisant
of the provisions in question, justified his non observance thereof, in the
following terms:
“The applicant has urged of me the
grant of the leave to sue which should have been granted by the respondent
mainly because the respondent is not going to grant the leave, having already
nailed his colours onto the mast, and in any event because I have all the facts
with which to base such decision. While it is rare that the court would be justified
in usurping the decision making function of the administrative authority,
McNALLY JA set out four situations where the court might take such action in Affretair
(Pvt) Ltd & Anor v M.K. Airlines (Pvt) Ltd 1996 (2) ZLR 15(S).
These are:
“1.
Where the end result is a foregone conclusion and it would be a waste of time
to refer the matter back;
2.
Where further delay could prejudice the applicant;
3.
Where the extent of bias or incompetence is such that it would be unfair to the
applicant to force it to submit to the same jurisdiction again; and
- Where the court is in as good a position as the
administrative body to make the decision.
In this case, although some of the
requirements may be said to be mutually exclusive, I am of the view that all of
them exist. To my mind it is a foregone conclusion that the applicant
should be granted leave, although the respondent thinks otherwise. The
applicant has waited for leave for more than a year and further delay would be
unfair to him. I have already expressed my suspicion of the existence of bias
the respondent being an interested party. In any event, I am in as good a
position to make the decision as the respondent.”
It is pertinent to note that the Affretair case that the judge a quo premised
its decision on, was an application for review in terms of Order 33 of the High
Court Rules. It is on this basis that Mr Mpofu for the
appellant argued that the court a quo contradicted itself by justifying
its interference on the basis of review proceedings, when it had found that the
proceedings in question were not those for a review.
This argument seems to suggest that review proceedings that are brought in
terms of Order 33 of the High Court Rules enjoy a monopoly over the grounds on
which interference with an order or proceedings of an inferior court or
tribunal, may be justified. I am not persuaded that is the case. As
indicated above ss 26 and 27 of the High Court Act [Chapter 7:06] and r
256 of the High Court Rules do not rule out review proceedings being brought in
terms of” any other law.” I take the view that such other review
proceedings may properly rely on the same or similar grounds as a basis for
some interference or other, by a superior tribunal, with a lower tribunal's
order or proceedings[2].
What is important at the end of the day is that justice and fairness
prevail, following upon a court ruling that is premised on cogent reasoning and
sound principles of law.
I am satisfied, in any case, that the propriety of the relief granted by the
court a quo is put beyond doubt when regard is had to s 2(2) of the Act,
which reads as follows:
“(2) The provision of this Act shall be construed as being in addition to, and
not as limiting, any other right to appeal against, bring on review or apply
for any other form of relief in respect of any administrative actions to
which this Act applies” (my emphasis)
Related to the circumstances of this
case, I find that while s 4(2) of the Act lists the types of relief the High
Court could have granted, that list is not exhaustive. Rather, it is
additional to any other relief that may be sought in respect of any
administrative action relevant to the Act.
The respondent's application to the
appellant for leave to sue SMM, dated 3 August 2012 was, for over a year and in
the words of the court a quo, “met with deafening silence” from the
latter. Not only was there silence, no reasons were proffered for it
within a reasonable or any, period at all. In my view, while the High
Court could have sent the matter back to the administrator with specific
instructions or conditions on how to address the respondent's request for
leave, it was nevertheless, within its competence in terms of s 2(2) of the
Act, to grant the relief sought. I am persuaded that a proper case has
been made for the leave in question to be granted by the court a quo.
Mr Mpofu argues inter alia in respect of the order granted by the
court a quo, that the court took the incorrect position that the merits
or demerits of the matter were irrelevant. He contends that s 6(b) of the
Reconstruction Act requires the Administrator to consider a matter and deal
with it on the merits.
I am not persuaded by this
argument.
The facts of this matter show, and the papers before the court confirmed, that
the appellant was singularly reluctant to grant the leave sought from him by
the respondent. The appellant made this very clear in his opposing
papers. It may in fact be assumed from this attitude that the appellant
must have considered the merits of the request and that this had influenced his
decision not to act on it. That being the case, the court a quo
and indeed the respondent cannot be blamed for, in my view, safely assuming
that the appellant's decision on the merits of the request for leave would have
been negative.
It is evident from the judge's
reasoning, cited above, that after considering the papers before him which
revealed to an appreciable extent the merits of the case, he took the view that
he (a) had all the facts on which to base the decision that he made and (b) was
in as good a position as the administrator to make such decision. The
Judge was also persuaded that any further delay in resolving the dispute would
prejudice the respondent.
I find no reason to fault the
judge's reasoning. To my mind, there can be little doubt that the
respondent did have a grievance. As correctly submitted by Mr Girach,
it has paid nearly $4.5 million but, through no fault of the respondent itself,
has not enjoyed nor been allowed to enjoy the benefit of its investment.
I am persuaded by the further contention that, in any case, the factual
position of the dispute as well as its merits or demerits will ultimately be a
matter for the trial court. At this stage all that has been granted is
leave for the respondent to commence proceedings against SMM, and possibly the
appellant as well, for the redress that it wishes to secure. All parties
will therefore have their day in court, as it were.
In the final
result, I find that the appellant's second ground of appeal lacks merit and
must be dismissed.
- Costs
The final ground of appeal
challenges the quantum of costs awarded against the appellant, which the
court a quo justified thus in its judgment:
“Regarding the question of costs,
the applicant (respondent) has been partially successful given that its main
application for the declaration of s 6 as unconstitutional has not found favour
with me, while the alternative claim has. For that reason, I consider
that it cannot recover all its costs. It has only made a case for 50 per
cent of its costs”
The
appellant contends that the judge a quo exercised his discretion
injudiciously in respect of the fifty per cent award of costs, given that the
court had considered three main issues and found for the respondent in respect
of only one of them. Accordingly, the appellant contends, the costs for
each of the three issues should have been thirty three per cent. I am not
persuaded by this contention. A look at the draft order of the respondent
in the court a quo clearly shows that it sought, apart from costs, one
main and one alternative form of relief. It was successful in respect of
the alternative relief sought. To the extent that costs could be
apportioned based on a mathematical calculation of the issues considered by the
court, the 50 per cent, even by the appellant's own formula, would be
reasonable. I however entertain some doubt as to the practicality of such
an approach.
Mr Mpofu argues in the
alternative that even if only two issues were determined by the court a quo,
there should either have been no order as to costs, or each party should have
borne its own costs. I hold a different view. All that the
respondent in reality craved was the removal of any obstacle to the prosecuting
of its claim against SMM. It sought two orders in the alternative, either
one of which would have given the respondent the relief it craved. The
court granted the alternative relief, even though it and all the parties had
expended time in arguing and considering the merits or demerits of the main
relief sought by the respondent. Since the respondent in the end secured
the entirety of the relief that it wanted, my view is that it was entitled to
part, if not all, of its costs. However, there having been no cross
appeal by the respondent on this aspect, there would be no basis for
interference at this stage. Costs being a matter for the court's
discretion, I do not in any case find that this discretion was exercised
injudiciously by the judge a quo, when he ordered the appellant to bear
half of the costs.
In all respects, therefore, I find
that the appeal lacks merit and should be dismissed.
It is in the result ordered as
follows:-
“The appeal be and is hereby
dismissed with costs.”
GARWE
JA:
I agree
PATEL
JA:
I agree
Dube Manikai and Hwacha, Appellant's
Legal Practitioners
Kantor and Immerman, Respondent's
Legal Practitioners
[1] Appellant's heads of argument paragraph 1
[2]
For instance, in Johannesburg Consolidated Investment Co and Anor v
Johannesburg City Counci 1903 TS 111 the court distinguished three types of
reviews, being review by summons, a wider power of review granted by statute
and thirdly……review by motion. 