MAKARAU JCC:
This is an application in terms of section 175(3) of the Constitution of Zimbabwe, for the setting aside in its entirety, of a High Court declaratory order handed down on 15 May 2021. The order, issued in respect of two distinct and separately filed applications, invalidated certain conduct by the President as unconstitutional. This it allegedly did in the first of its two parts.
Background
We summarise the facts giving rise to this application from the two applications that were filed in the High Court under case numbers HC2128/21 and HC2166/21, respectively. The facts are not complex.
The facts of this application coalesce, and relevantly so, around 15 May 2021 when the Chief Justice, Judge Malaba, reached the age of seventy. A few days before that date, on 7 May 2021 to be precise, the Constitution of Zimbabwe Amendment (No.2) Act (No.2 of 2021) came into force.
Among other provisions, it amended section 186 of the Constitution to provide for the tenure of judges in the following terms:
“(1) The Chief Justice and the Deputy Chief Justice hold office from the date of their assumption of office until they reach the age of seventy years, when they must retire unless before they attain that age they elect to continue in office for an additional five years;
Provided that such election shall be subject to the submission to, and acceptance by the President, after consultation with the Judicial Service Commission, of a medical report as to their mental and physical fitness so to continue in office.
(2) Judges of the Constitutional Court are appointed for a non-renewable term of not more than fifteen years; but
(a) They must retire earlier if they reach the age of seventy unless, before they attain that age, they elect to continue in office for an additional five years:
Provided that such election shall be subject to the submission to, and acceptance by the President, after consultation with the Judicial Service Commission, of a medical report as to their mental and physical fitness so to continue in office.
(b) After the completion of their term, they may be appointed as judges of the Supreme Court or the High Court, at their option, if they are eligible for such appointment.
(3) Judges of the Supreme Court hold office from the date of their assumption of office until they reach the age of seventy years, when they must retire, unless, before they attain that age, they elect to continue in office for an additional five years:
Provided that such election shall be subject to the submission to, and acceptance by the President, after consultation with the Judicial Service Commission, of a medical report as to their mental and physical fitness so to continue in office.
(4) Notwithstanding subsection (7) of section 328, the provisions of subsections (1), (2) and (3) of this section shall apply to the continuation in office of the Chief Justice, the Deputy Chief Justice, Judges of the Constitutional Court and Judges of the Supreme Court.”
Acting in accordance with the provisions of section 186 of the Constitution, as amended, the Chief Justice exercised the option to extend his tenure of office beyond the age of seventy for an additional five years.
By letter dated 11 May 2021, the seventh respondent, the President, accepted a medical report as to the mental and physical fitness of the Chief justice to continue in office.
The third (Musa Kika), fourth (Young Lawyers Association of Zimbabwe) and fifth (Frederick Mutanda) respondents formed the firm view, that, the seventh respondent (the President), by accepting the medical report, that the Chief Justice was mentally and physically fit to so continue in office, had subverted the correct constitutional position.
They filed the two applications in the High Court that we have detailed above, challenging the continuation in office of the Chief Justice for an additional five years beyond 15 May 2021.
In his application, the third respondent (Musa Kika), in addition to the Chief Justice, cited as respondents all the judges of the Supreme Court and some judges of the High Court.
At the time of the filing of the application, the five judges of this Court, other than the Chief Justice and the Deputy Chief Justice, were Supreme Court judges, acting as Supreme Court judges and were cited as such. Substantive appointments to this Court were made subsequent to the filing of the applications a quo but before the hearing of this application.
Whilst materially and correctly so, the third respondent (Musa Kika) averred in his application, that, the Chief Justice had opted to exercise the option introduced by the amendment, no such averment was made in respect of any or all of the other judges who were cited as respondents under case number HC2128/21.
We revert to this fact in detail later.
The primary relief sought in the applications a quo was a declaration that the amendment to the Constitution, in section 186, did not apply to the Chief Justice and the judges cited as respondents. Specifically, it was claimed, that, the amendment did not have any force and effect on the tenure of the Chief Justice and the cited judges as such an interpretation would fall foul of the provisions of section 328(7) of the Constitution.
Section 328(7) of the Constitution provides that:
“(7) Notwithstanding any other provision of this section, an amendment to a term–limit provision, the effect of which is to extend the length of time that a person may hold or occupy any public office, does not apply in relation to any person who held or occupied that office, or an equivalent office, at any time before the amendment.”
The two applications, both brought urgently, were opposed on truncated dies induciae in accordance with the terms of a case management meeting order to which all the parties agreed.
At the end of the hearing of the applications, as indicated above, the court a quo issued a singular order in the following terms:
“IT IS DECLARED THAT:
1. The second respondent in HC2128/21 who is also the second respondent in HC2166/21 ceased to hold the office of the Chief Justice of Zimbabwe and judge by operation of law on 15 May 2021 at 4:00 hours.
2. The extension of the length of time in the office of the judge beyond the age of seventy provided for in section 186 of the Constitution does not apply to the second to fourteenth and eighteenth respondents.
3. There shall be no order as to costs.”
The respondents a quo, including the judges of this Court, were aggrieved by the order.
Under separate and different covers, they filed notices of appeal in the Supreme Court challenging the correctness of the decision.
It is not necessary that we set out the grounds of appeal of each appellant in full. As and when it is it necessary to do so, we shall advert to the notices of appeal.
The applicant, strongly believing, that, the effect of the first part of the order was to declare constitutionally invalid the letter of 11 May which constituted the legal authority for the Chief Justice to continue in office, filed this application in terms of section 175(3) of the Constitution.
As indicated above, he sought the setting aside of the entire order.
This he did notwithstanding, that, on its mere reading, the High Court order did not in any way refer to the conduct of the seventh respondent (the President) as constitutionally invalid.
We observe, at this stage, that, the interpretation of the High Court order by the applicant in this regard was conceded as correct by the fourth (Young Lawyers Association of Zimbabwe) and fifth (Frederick Charles Mutanda) respondent's counsel during the hearing of the application.
We shall advert to this concession in detail in due course.
The Application in terms of section 175(3) of the Constitution
It is common cause that the applicant was not a party to either of the two applications that were determined by the High Court. He brought this application in the first instance. In the application, he alleged that he is an adult Zimbabwean who is asserting his right to access this Court directly to defend and protect the Constitution.
Arguing that the state of affairs in the country following the issuance of the High Court order was undesirable as there should never, in any jurisdiction, be doubt as to who the Chief Justice is, the applicant made two basic contentions:
(i) Firstly, he contended, that, the juristic act by the seventh respondent (the President) of accepting a medical report as to the mental and physical fitness of the Chief Justice to remain in office for an additional five years, after attaining age seventy, was valid and the High Court orders purporting to hold such as constitutionally invalid had to be set aside.
(ii) Secondly, he contended, that, section 328(7) of the Constitution, relied upon by the third (Musa Kika), fourth (Young Lawyers Association of Zimbabwe) and fifth (Frederick Charles Mutanda) respondents as precluding the amendment of the Constitution from applying to the Chief Justice and other sitting judges was not applicable as section 186(4) of the Constitution was the applicable section.
The third, fourth, and fifth respondents opposed the application.
The first (Minister of Justice, Legal and Parliamentary Affairs), second (Judicial Service Commission), sixth (Attorney General) and seventh (the President) respondents were content to keep a watching brief during the hearing of the application.
The third respondent (Musa Kika) opposed the application on the basis of a sole preliminary point. It was his position that this court should refrain from exercising jurisdiction in the matter.
Put differently, it was his position, edified during the proceedings by an oral application, that, this Court should recuse itself. In his view, since the second part of the High Court order declared that the judges of this and the Supreme Court could not extend their respective terms of office beyond the age of seventy, the order under scrutiny in the confirmation proceedings affects the judges of this Court directly.
In this regard, he was keen to highlight and place it on record, that, the judges of this Court had not only participated in the proceedings before the High Court but had since filed a notice of appeal against the High Court order.
It was therefore the mainstay of his exception and position, that, the judges of this Court were completely non-suited to hear this application on account of their positions as active litigants who were already seeking the vacation of the High Court order by way of appeal.
In his further view, the determination of the application by this Court, as constituted, would, in the circumstance of the matter, implicate a breach of the common law principle nemo judex in sua causa.
In opposing the application, the fourth (Young Lawyers Association of Zimbabwe) and fifth (Frederick Charles Mutanda) respondents raised a number of issues:
(i) Firstly, they challenged the competence of this Court to determine the application. They also sought the recusal of the entire bench of this Court on the same ground that the third respondent (Musa Kika) had relied upon.
(ii) Secondly, and before a competently constituted Court, the fourth respondent took issue with the locus standi of the applicant to bring the application in the manner that he did. In essence, it was the fourth respondent's position that the applicant, not having obtained any rights under the High Court order, could not purport to challenge the order.
(iii) Thirdly, and regarding the merits of the matter, the fourth respondent challenged the procedural steps taken and leading to the acceptance by the seventh respondent (the President) of a medical report as to the mental and physical fitness of the Chief Justice to continue in office for an additional five years after his seventieth birthday.
Thus, broadly speaking, the application raised for determination three distinct issues. The second issue would only become relevant and fall for determination if the respondents were not successful on the first issue and the third issue would only require determination if the respondents failed on the second issue.
(i) The first issue was whether this Court should recuse itself;
(ii) If the Court did not recuse itself, the second issue would be whether the applicant had locus standi to bring the application under section 175(3) of the Constitution; and
(iii) Finally, if he did have the requisite standing, whether the application had merit....,.
PATEL JCC: It is pertinent, at this juncture, before addressing the substance of the matter, to make an observation concerning the conduct of the third respondent (Musa Kika).
Even though he was primarily instrumental in initiating the proceedings a quo, he deliberately chose not to address any issue other than that of recusal; either in his opposing affidavit or in his heads of argument.
Equally curiously, at the end of the proceedings on the question of recusal, he and his counsel elected not to appear in any further proceedings before the Court. In the event, the matter proceeded in the absence of the third respondent and without the benefit of his submissions on the substantive merits of the matter.
The relief sought by the applicant in this matter is essentially threefold:
(i) The first is a declaratur to the effect that paragraphs 1 and 2 of the operative part of the High Court judgment No.264-21, handed down on 15 May 2021, are orders of constitutional invalidity within the contemplation of section 175(1) of the Constitution.
(ii) The second is a further declarator to the effect, that, the aforesaid High Court orders have no force unless confirmed by this Court.
(iii) Lastly, the applicant seeks a substantive order declining to confirm and setting aside the impugned High Court orders.
My learned sister, MAKARAU JCC, in addressing the application for recusal, has earlier outlined the broad issues raised by this application. Having regard to the averments contained in the affidavits filed by the parties and the arguments presented before us, the specific issues that now arise for determination in this matter are as follows:
(i) Whether the applicant has the requisite locus standi to institute this application.
(ii) The effect of the failure by the applicant in the proceedings a quo (i.e. the third respondent herein) to seek and obtain leave to sue all the judges that were cited as respondents in that matter.
(iii) Whether the orders of the court a quo are orders of constitutional invalidity requiring the confirmation of this Court.
(iv) The correctness of the judgment of the court a quo -
(a) In its interpretation of sections 186 and 328 of the Constitution; and
(b) As regards the alleged violation of the right to equal protection of the law and the right of access to the courts.
(v) Whether this Court should decline to confirm and accordingly set aside the orders granted by the court a quo.
I propose to address and determine the foregoing issues ad seriatim.
The Applicant's Legal Standing
Section 175 of the Constitution regulates the powers of the courts in constitutional matters. Of particular relevance in the present matter are subsections (1) and (3) of section 175 which provide as follows:
“(1) Where a court makes an order concerning the constitutional invalidity of any law or any conduct of the President or Parliament, the order has no force unless it is confirmed by the Constitutional Court.
(2)…,.
(3) Any person with a sufficient interest may appeal, or apply, directly to the Constitutional Court to confirm or vary an order concerning constitutional validity by a court in terms of subs (1).
(4)…,.
(5)…,.
(6)…,.”
I shall address the significance of section 175(1) of the Constitution later in this judgment when dealing with the import and effect of the High Court orders that are the subject of scrutiny in casu.
For the present, it is first necessary to consider the applicant's locus standi in judicio to institute the application before us.
By virtue of section 175(3) of the Constitution, it is incumbent upon the applicant to show that he is “a person with a sufficient interest” in an order concerning constitutional validity.
In paragraphs 27 to 29 of his founding affidavit, the applicant asserts, that, he is a person with sufficient interest within the contemplation of section 175(3) of the Constitution. He avers, that, as a citizen by birth, he has a sufficient interest in defending and protecting the Constitution and that section 175(3) exists for his protection as a citizen.
He further elaborates the factors which give rise to his particular interest as an ordinary citizen.
These include his belief that the President acted constitutionally in approving Justice Malaba's election to continue in office as Chief Justice for an additional 5 years and that he is in office in accordance with the Constitution following the President's approval.
The applicant further believes, that, all persons who were judges of the Supreme Court and those acting as judges of the Constitutional Court, as at 7 May 2021, are entitled to elect to retire at the age of 75 years in accordance with section 186(4) of the Constitution and that the High Court cannot contradict that position without also declaring section 186(4) of the Constitution to be constitutionally invalid.
The applicant takes issue with the fact, that, the Registrar of the High Court has not acted in terms of Rule 31(1) of the Constitutional Court Rules 2016, to place the record of proceedings in that court before this Court for confirmation.
The High Court orders will therefore remain as if they are orders unaffected by section 175(1) of the Constitution and the respondents are acting as if section 175(1) is not in issue.
The applicant accordingly affirms, that, he is entitled to a correct and final pronouncement on these issues in keeping with his right to the protection of the law coupled with his duty as a citizen to observe the Constitution and respect its institutions.
He is of the strong view, that, the third, fourth and fifth respondents have a well thought out strategy to avoid section 175(1) and that the first, second and sixth respondents appear not to have realised the impact of that strategy.
However, he is very alert, as a citizen, and this is the source of his sufficient interest because every citizen of Zimbabwe has automatic standing to challenge any attempt to render redundant the provisions of the Constitution, such as section 175(1) of the Constitution.
Counsel for the applicant, submits, that, the applicant, as a citizen, has a sufficient interest and the right to approach this Court to vindicate and protect the Constitution. The common law requires a direct and substantial interest in order to found locus standi, but, that is not the test to be applied in casu. It does not matter that the applicant was not a party to the proceedings a quo. He is entitled to defend the Constitution as a citizen so as to avoid over-reach by a subordinate court within the separation of powers framework.
Counsel for the applicant further argues, that, citizenship is a key element in giving rise to a sufficient interest within the meaning of section 175(3) of the Constitution and that every citizen has an automatic and sufficient interest in any matter relating to the Constitution.
Apart from being a citizen by birth, the applicant also has a sufficient interest by reason of being concerned and aggrieved by the conduct of the Registrar of the High Court and the strategy of avoidance adopted by the third, fourth, and fifth respondents.
Counsel for the fourth and fifth respondents, submits, that, section 175(3) of the Constitution, as read with Rule 35 of the Constitutional Court Rules, requires the demonstration of a right to approach this Court.
The present matter is a review relating to a dispute between the parties to the proceedings a quo and the applicant was not a party to those proceedings. Section 85(1) of the Constitution is different from section 175(3) which goes further to require a sufficient interest. The applicant's claim is based on his personal views and not on any sufficient interest. He therefore lacks the requisite locus standi in casu because he was not cited in the proceedings a quo.
Per contra, Mr Zhuwarara, the amicus curiae in this matter, submits that this Court has an investigative role in confirmation proceedings. Consequently, the question of locus standi pales into insignificance.
In any case, a citizen has a sufficient interest in questions relating to judicial authority by virtue of section 162 of the Constitution which states, that, judicial authority derives from the people and is vested in the courts.
What is more important is the role of this Court on questions relating to the invalidity of any law. Any declaration of a subordinate court is subject to the over-arching jurisdiction and supervisory role of the Constitutional Court, irrespective of the locus standi of any applicant.
The critical question to be determined is this: What is the meaning to be assigned to the phrase “any person with a sufficient interest” as used in section 175(3) of the Constitution?
The word 'interest' qua legal interest, is employed variously in the Constitution.
It appears in section 85(1) with reference to litigation 'in any person's own interests' or 'in the interests of a group or class of persons' or 'in the public interest' or by 'any association acting in the interests of its members' alleging that a fundamental right or freedom has been, is being or is likely to be infringed.
It also appears in section 113(7) which enables 'any interested person' to approach this Court to determine the validity of a declaration or extension of a state of public emergency.
Again, section 167(5) provides that the Rules of the Court must allow a person 'when it is in the interests of justice' to approach the Court in relation to any constitutional matter or any issue connected with a decision on a constitutional matter.
The foregoing enumeration is obviously not exhaustive. Nevertheless, it serves to illustrate that the use of the word 'interest' and its derivatives in the Constitution is variegated and that its specific meaning depends upon the particular context in which it appears.
The instances cited also demonstrate, that, the provisions in question are designed to preserve the integrity of the Constitution through the conferment of broad and expansive legal standing in the determination of constitutional questions and matters.
Reverting to section 175(3) of the Constitution, it is necessary to have regard to the point, that, the word 'interest' is coloured and qualified by the use of the word 'sufficient'. The latter is defined in various dictionaries as 'enough to meet the needs of a situation or a proposed end' or 'enough for a particular purpose'.
These definitions underscore the need to have regard to the specific purpose for which sufficiency is required.
In the context of section 175(3) of the Constitution, the central objective that is to be attained is the confirmation or variation of a court order concerning the constitutional invalidity of any law or any conduct of the President or Parliament.
What this means is that in order to assess the sufficiency of any person's legal interest in the matter, it is necessary to ascertain the particular purpose which has actuated that person to approach this Court to seek the confirmation or variation of the order made by the subordinate court concerning constitutional validity.
Under the common law, legal standing in civil suits is ordinarily confined to persons who can demonstrate a direct or substantial interest in the matter: see Zimbabwe Teachers Association & Ors v Minister of Education 1990 (2) ZLR 48 (HC)…,.
However, it is now well established that the test for locus standi in constitutional cases is not as restrictive but significantly wider.
This approach was aptly articulated in Ferreira v Levin N.O. & Others 1996 (1) SA 984 (CC)…,.:
“…,. I can see no good reason for adopting a narrow approach to the issue of standing in constitutional cases. On the contrary, it is my view, that, we should rather adopt a broad approach to standing. This would be consistent with the mandate given to this court to uphold the Constitution and would serve to ensure that constitutional rights enjoy the full measure of the protection to which they are entitled.”
The broad approach to locus standi in constitutional cases was also affirmed by this Court in Mawarire v Mugabe N.O. & Ors 2013 (1) ZLR 469 (CC), where the applicant's standing was endorsed on the basis that he had invoked the jurisdiction of the Constitutional Court on a matter of public importance.
The position advanced on behalf of the fourth and fifth respondents is that the applicant lacks the requisite sufficient interest in casu because he was not a litigant in or party to the proceedings a quo.
This position is palpably unsustainable for several very compelling reasons.
(i) First and foremost is the wording of section 175(3) of the Constitution itself.
The reference to 'any person' with a sufficient interest makes it abundantly clear that it is not confined to litigants or parties before the subordinate court that has rendered the order of constitutional invalidity.
This is fortified by the fact, that, confirmation proceedings, under section 175(3) of the Constitution, to confirm or vary the order, can be brought to this Court not only by way of appeal but also by means of an application.
This clearly signifies that locus standi is extended to any person with a sufficient interest - even if he or she has not been a party to the proceedings a quo.
(ii) Secondly, unlike the position that obtains under section 85(1) of the Constitution, a person invoking the Court's jurisdiction under section 175(3) is not required to allege and prove any infringement of his or her own fundamental rights or those of any other person: see in this regard Ferreira v Levin N.O. & Others 1996 (1) SA 984 (CC)…,.; M & Anor v Minister of Justice, Legal and Parliamentary Affairs N.O. & Ors 2016 (2) ZLR 45 (CC); Mudzuru & Anor v Minister of Justice, Legal and Parliamentary Affairs & Ors CC12-15.
What is more important in assessing the requisite sufficient interest is the nature, substance, and gravity of the constitutional matter that has prompted the person concerned to apply to this Court for a determination and consequential relief.
(iii) Thirdly, it is pertinent to have regard to the provisions of Rule 31 of the Constitutional Court Rules.
This Rule governs the procedure for confirmation of an order of constitutional invalidity.
Rule 31(2) relates specifically to the filing of heads of argument by the parties to the proceedings before the court a quo, where the Registrar or Clerk of that court has, acting in terms of Rule 31(1), filed with the Registrar of this Court the relevant record of proceedings, including the court order for confirmation.
On the other hand, Rule 31(3) entitles "any person or entity of State” to appeal against an order of constitutional invalidity, while Rule 31(5) enables 'a person or entity of State' to apply for the confirmation of any such order.
Both subrules require the appellant or applicant in question to be “entitled to do so” i.e. to appeal or apply, as the case may be.
What is not provided for, and what is obviously a casus omissus, is the recourse to an appeal or application to vary an order concerning constitutional validity, as is expressly envisaged by section 175(3) of the Constitution.
In any event, what is self-evident from the provisions of Rule 31 is that the prescribed procedures for confirmation or otherwise are not confined to the parties or litigants a quo but extend as well to any person or State entity that is entitled to appeal or apply by reason of being vested with a sufficient interest in the matter.
The submission made on behalf of the applicant is that every citizen has a sufficient interest, under section 175(3) of the Constitution, to approach this Court to vindicate and protect the Constitution.
It is also contended, that, any citizen has an automatic and sufficient interest in any matter relating to the Constitution.
It is therefore necessary, so it is argued, to draw a distinction between citizens and non-citizens.
This position, in my view, is not entirely tenable.
While I agree that being a citizen by birth is a relevant factor, I do not think that citizenship, per se, can invariably be regarded as an automatic and exclusive criterion in order to establish legal standing under section 175(3) of the Constitution.
It is perfectly conceivable that a non-citizen, and even a foreign resident, might be entitled to approach this Court as having the requisite sufficient interest in the matter.
Each case will depend upon the terms and ramifications of the court order that is the subject of confirmation proceedings as well as the personal attributes and circumstances of the individual applicant concerned.
The fact that he or she is not a citizen, whether by birth or otherwise, does not preclude him or her from approaching this Court in order to either vindicate or challenge an order concerning constitutional validity made by any subordinate court.
As I have postulated earlier, in assessing “sufficient interest” in the context of section 175(3) of the Constitution, it is of critical importance to have regard to the purpose for which the person in question has appealed or applied to this Court to confirm or vary the order of constitutional invalidity rendered by the lower court.
Turning to the applicant in casu, the reasons that he proffers for mounting the present application revolve around the nature and effect of the orders made by the court a quo and what has transpired thereafter.
To recapitulate, he firmly believes, that, the President acted constitutionally in extending the tenure of office of the incumbent Chief Justice for a further 5 years. He also believes that judges of the Supreme Court, and those acting as judges of the Constitutional Court, are entitled to elect to retire at the age of 75 years.
He is concerned by the fact, that, the Registrar of the High Court has failed to process the orders of the court a quo in conformity with the Rules of this Court, thereby leaving them intact and unaffected by the requirements of section 175(1) of the Constitution.
He is also aggrieved by what he perceives to be the deliberate strategy adopted by the third, fourth and fifth respondents (Musa Kika, Young Lawyers Association of Zimbabwe and Frederick Charles Mutanda) to avoid and subvert the requirements of section 175(1) of the Constitution and the failure of the first, second, and sixth respondents (Minister of Justice, Legal and Parliamentary Affairs, Judicial Service Commission and the Attorney General) to realise the impact of that strategy.
He accordingly claims, that, he is entitled to a correct and final pronouncement on the matter so as to avoid the relevant provisions of the Constitution being rendered redundant.
As against this, none of the respondents in casu has questioned the veracity of the applicant's convictions, other than to ridicule them as the subjective views of a mere “busybody”.
In the event, his averments and assertions remain substantially unchallenged and I see no cogent reason to discredit or discount them.
As an “alert citizen” he wishes to ensure, that, the strictures of the Constitution are duly complied with and that its integrity is appropriately preserved. He also wishes to defend the conduct of Parliament in the enactment of section 186 of the Constitution as well as the conduct of the President extending the tenure of the incumbent Chief Justice pursuant to that section.
All in all, I am of the considered view, that, the applicant is motivated in instituting the present application both by his own interest, as a concerned citizen, and in the general public interest in a matter of paramount public importance.
In short, he is actuated by the desire to vindicate the provisions of the Constitution pertaining to judicial tenure.
In these circumstances, I am of the considered opinion that the applicant has put forward a very compelling case for establishing the requisite “sufficient interest” within the contemplation of section 175(3) of the Constitution, for the purpose of contesting the propriety of the orders rendered by the court a quo under judgment no. HH264-21 on 15 May 2021.
It follows, that, the preliminary objection to the applicant's locus standi in judicio is without merit and cannot be sustained. It is accordingly dismissed.
