As
I perceived it, the applicant's main case was that the decision by the Administrator
to decline leave had been grossly wrong. The decision had been concerned with
self-preservation of the Administrator's own position and not with
considerations of fairness. Reference was made to the rececent, and yet to be
published, judgment by MATHONSI J ...
As
I perceived it, the applicant's main case was that the decision by the Administrator
to decline leave had been grossly wrong. The decision had been concerned with
self-preservation of the Administrator's own position and not with
considerations of fairness. Reference was made to the rececent, and yet to be
published, judgment by MATHONSI J in the case of Gurta AG v
Afaras Mtausi Gwaradzimba N.O. HH353-13.
Gurta AG v Afaras Mtausi
Gwaradzimba N.O.
HH353-13 concerned the same respondent as in this case. It concerned the same
company and the same relief. The respondent in that case had sold certain
mining claims to the applicant, a foreign company incorporated in Switzerland.
A third party had claimed them. He had used all manner of means to evict the
applicant. The applicant had sought the leave of the Administrator to institute
proceedings against SMM Holdings (Private) Limited for the cancellation of the
sale agreement and for a refund of the purchase price.
The
leave had been refused. MATHONSI J granted it.
In casu, the applicant's
fall-back position, as it had been in the Gurta AG v Afaras Mtausi
Gwaradzimba N.O. HH353-13 case, was that section 6 of the
Reconstruction of State-Indebted Insolvent Companies Act [Chapter 24:27] is ultra vires the Constitution of Zimbabwe. Thus, in spite of
the decision of the Supreme Court in African Resources Ltd & Ors v Gwaradzimba NO & Ors
2011 (1) ZLR 105 (S) declaring that section 6 of the Reconstruction of State Indebted
Insolvent Companies Act [Chapter 24:27] does not violate the Constitution, and
in spite of the decision by MATHONSI J in the Gurta AG v
Afaras Mtausi Gwaradzimba N.O. HH353-13 case on the constitutional
point to the effect that given that the case had to be dealt with in accordance
with the old Constitution which had removed the jurisdiction of this court to
strike down existing legislation, reposing such power in the Constitutional
Court, counsel for the applicant nevertheless argued that the constitutionality
of section 6 of the Reconstruction of State-Indebted Insolvent Companies Act
[Chapter 24:27] was still an open point. He submitted that the African Resources Ltd & Ors v Gwaradzimba NO & Ors 2011 (1) ZLR
105 (S) case was distinguishable.
The
particular problem confronting this court in this matter was not what their
lordships in the Supreme Court had been called upon to exercise their minds on.
They had been concerned merely with the constitutional validity of legislation
in relation to a reconstruction order and not with the exercise by an Administrator
of a power under section 6(b) of the Reconstruction of State-Indebted Insolvent
Companies Act [Chapter 24:27].
With
regards to the Gurta AG v Afaras Mtausi Gwaradzimba N.O.
HH353-13 case, counsel for the applicant submitted that it appeared that the
Honourable MATHONSI J had not been referred to section 85 of the new
Constitution. This section empowers every court to grant relief in relation to
a breach of fundamental rights or freedoms which are enshrined in the
Constitution. Specifically, section 85(2) of the Constitution requires the
rules of a court to facilitate access to, and the determination of such matters
with minimal technicalities.
The
precise constitutional point raised by the applicant in this matter, as an
alternative argument, was that section 6(b) of the Reconstruction of State Indebted
Insolvent Companies Act [Chapter 24:27] purports to prevent access to the
courts in contravention of section 69(3) of the Constitution which reads:
“Every
person has the right of access to the courts or some other tribunal or forum
established by law for the resolution of any dispute.”
In a
nutshell, that was the applicant's case….,.
On Gurta AG v Afaras Mtausi Gwaradzimba N.O. HH353-13, counsel
for the respondent submitted that the last word regarding the constitutionality
or otherwise of section 6(b) of the Reconstruction of State Indebted Insolvent
Companies Act [Chapter 24:27] had not yet been spoken. The Gurta AG v Afaras Mtausi Gwaradzimba N.O. HH353-13 judgment
had been appealed against.
Both counsel were set to argue the appeal in the
Supreme Court on the following day.
