Final Orders re: Procedural Irregularities and Discretion of Court to Condone, Interfere, Dismiss, Remit, Strike or Remove

HH425-18 : MIDLANDS STATE UNIVERSITY vs GALAXY ENGINEERING DESIGN CONSULTANTS (PVT) LTD
Ruled By: CHIKOWERO J

After hearing argument by counsel, I granted an order in terms of the draft order attached to the application.

These are my reasons. I undertook to furnish them.

This is an application for amendment of the plea filed in the main matter, HC6655/15. That matter had actually been enrolled on the continuous roll for trial.

On 24 January 2018, my sister DUBE J granted an order removing the main matter from the roll. Paragraph 2 of her order went further to provide, that, the applicant was to make an application to withdraw admissions and then to enroll the matter. The applicant was also ordered to pay the wasted costs.

The applicant was the defendant in the main matter. It had pleaded that the respondent (plaintiff in the main matter) had performed all its obligations in terms of the four contracts entered into between the parties at the time the applicant wrote to the respondent. In that letter, the applicant instructed the respondent to stop any further contractual work.

The plea was therefore an admission.

The admission was repeated subsequent thereto - including in the Joint Pre-Trial Conference Minute. The pretrial conference was presided over by a judge of this court. So, the admission was repeated before that judge.

The applicant's plea was actually that the amounts claimed were no longer recoverable by dint of the prescription of the cause of action.

That special plea was withdrawn on the same date that the applicant indicated that the admissions were made in error and the applicant wanted to amend its plea.

The amendment sought was simply that the respondent had not yet completed carrying out the work that had been agreed to in terms of the contract when the applicant wrote to it to stop any further work. Consequently, so the applicant wants to aver, the respondent is not entitled to any further payment beyond the amounts already paid.

As preliminary point one, the respondent says this application should have been brought as a court application and not a chamber application.

There is sufficient evidence in the Rules, statutes, and decided cases, that, it is competent to institute a chamber application for amendment of pleadings.

The application can also be made as a court application, and, in my view, viva voce in court without being predicated on any written application.

Firstly, Order 20 of the High Court Rules 1971 deals with amendment of pleadings and matters arising pending action. It is so headed.

Rule 132 of the High Court Rules reads:

“132. Court may allow amendment of pleading

Subject to Rule 134 and Rule 151, failing consent by all parties, the court or a judge may, at any stage of the proceedings, allow either party to alter or amend his pleading in such manner and on such terms as may be just, and all such amendments shall be made as may be necessary for the purpose of determining the real question in controversy between the parties.”…,.

Secondly, Rule 189 of the High Court Rules 1971 reads:

“189 Withdrawal of Admission

The court may, at any time, allow any party to amend or withdraw any admission so made on such terms as may be just.”…,.

Thirdly, the proviso to section 36 of the Civil Evidence Act [Chapter 8:01] is relevant. I will set out section 36(1), (3) and that proviso. They provide as follows:

“An admission as to any fact in issue in civil proceedings made by or on behalf of a party to the proceedings shall be admissible as proof of that fact, whether the admission was made orally or in writing or otherwise.

(2)…,.

(3) It shall not be necessary for any party to civil proceedings to disprove any fact admitted on the record of proceedings:
Provided that this subsection shall not prevent any such admission being withdrawn with leave of the court….,.”

Further, Order 1 of the High Court Rules 1971 deals with application of the Rules and interpretation of some of the terms used therein. In the definition section, the following is found;

“3. Definitions

In these rules – 'Judge' means a judge of the court, sitting otherwise that in open court.”

When one reads this definition of a judge in tandem with Order 20 Rule 132, it is clear that there is nothing unprocedural in seeking amendment of pleadings through a chamber application.

It is unnecessary that l go on to quote Rule 226(2)(c) of the Rules.

It is sufficient that l record that l agree with counsel for the applicant, that, an application for leave to amend pleadings seeks procedural relief. It is precisely the remedy which should be sought through a chamber application as provided for in Rule 226(2)(c) of the High Court Rules.

There is nothing substantive in an order allowing or dismissing an application for amendment of a pleading. Needless to say, the determination which is substantive is that which ensues at the trial. That relates to the main matter.

I do not think that legal practitioners should raise, let alone argue, a procedural issue such as this. It is evidently without merit. It simply contributes to clogging up the High Court roll.

Indeed, even if it were incorrect for the applicant to have filed a chamber application instead of a court application, I was still not going to dismiss the application on that basis in light of the provisions of Rule 229C of the Rules of this court.

Dealing with the proper procedure of amending pleadings after issue of summons, GILLESPIE J stated. in ZFC v Taylor 1999 (1) ZLR 308 (H)…,:

“Failing consent, then, it is necessary to make application for amendment, either to court or a judge in chambers, depending upon the criteria set out in Rule 226. The application must be served upon the opposing party; be supported by affidavit showing good cause; and must be accompanied by a draft order…,.”

I do not wish to unduly lengthen this judgment by embarking upon an analysis of all the provisions of the Rules that l have quoted, section 36 of the Civil Evidence Act [Chapter 8:01] and ZFC v Taylor 1999 (1) ZLR 308 (H).

It is clear that amendments to pleadings, in the absence of consent, can be sought via a chamber or court application. It can also be sought, through the mouth of the legal practitioner, in the absence of any written application, depending on the magnitude of the amendment sought.

I thus dismissed the first preliminary point.

Preliminary point two also found no favour with me.

The incorrect form was used. Form 29B was used. Form 29, with modifications, ought to have been used. Therefore, the application should be struck off the roll for want of compliance with Rule 241(1) of the High Court Rules 1971.

This was the point in limine.

This chamber application set out the grounds on which the order sought was predicated. In prefacing the grounds, the following was stated:

“Take notice that, application is hereby made for an order in terms of the draft order annexed on the grounds that;”

After listing the grounds, the following statement appears as paragraph 3 of the Notice of the application:

“3. The accompanying affidavit and documents will be used in support of the application.”

To this extent, Form 29B was used. But, that is not the end of the matter.

Paragraph 3 quoted above is also contained in Form 29. So too is the notice and reference to the draft order, but, without the grounds of the application being enumerated in the notice itself.

The Form used in this matter contained paragraph 4. It read:

“If you intend to oppose this application you will have to file a notice of opposition in Form 29A, together with one or more opposing affidavits, with the Registrar of the High Court at Harare within ten days (sic) on which this notice has served on you. You will also have to serve a copy of the Notice of Opposition and affidavits on the applicants at the address for service specified below. Your affidavits may have annexed to them documents verifying the facts set out in the affidavits.

If you do not file an opposing affidavit within the period specified above, this application will be set down for hearing in the High Court at Harare without further notice to you and will be dealt with as an unopposed application.”

Clearly, therefore, the respondent's procedural rights to oppose the application, the time frame within which to do so, as well as being alerted to the fact, that, in the absence of opposition the application would be set down as unopposed, without the notice of set down on the unopposed roll being served on him, were explained to the respondent.

All this is Form 29 language.

The chamber application was served on the respondent. Paragraph 4 of the notice was in recognition of the fact, that, this is a chamber application which had to be served on an interested party - the respondent herein.

The only blemish in paragraph 4 was that it made reference to the chamber application, if unopposed, being set down and heard by the High Court on the unopposed roll of court applications, it being a chamber application.

The proper wording would have been to omit any reference to setting down the chamber application for hearing if no opposing papers were filed within the time frame indicated in the notice. Instead, the appropriate modification would have been to state, in the notice, that, if no opposing papers were filed within the dies induciae, the application would be heard by a judge in chambers as an unopposed application without further notice to the respondent.

All told, the form was a hybrid of Form 29 and Form 29B.

I have read the judgment of my brother MAFUSIRE J in Marick Trading (Private) Limited v Old Mutual Life Assurance Company of Zimbabwe (Private) Limited and The Sheriff of Zimbabwe HH667-15. Copy thereof was handed up to me by the applicant's counsel during argument.

I have also read the judgment of my brother MATHONSI J in Telecel Zimbabwe (Pvt) Ltd v Postal and Telecommunications Regulatory Authority of Zimbabwe and Ors 2015 (1) ZLR 651 (H).

I appreciate that these two judgments dealt with urgent chamber applications rather than non-urgent chamber applications.

But, Order 32 section D of the High Court Rules 1971, in particular Rule 241(1), is dealing with the form of chamber applications generally.

One then has resort to either Form 29, with appropriate modifications, or Form 29B depending on whether the chamber application is to be served on an interested party or not.

In the circumstances of this particular matter, I found that there was substantial compliance with Rule 241(1) of the High Court Rules.

The respondent was left in no doubt at all on its procedural rights. That is what the appropriate modifications envisaged in the proviso to the Rule are meant to cover.

Service of the written application was effected on the respondent. It opposed the matter right up to the stage of oral argument. There was no prejudice to it.

There was no need, in my view, for the applicant to seek condonation. Neither was it necessary that Rule 4C be invoked.

SC08-16 : CFI RETAIL (PRIVATE) LIMITED vs ERIC MANYIKA
Ruled By: MALABA DCJ, ZIYAMBI JA and GOWORA JA

After hearing counsel for the appellant, the appeal was allowed with costs and the order of the court a quo set aside. The matter was remitted to the court a quo for it to be determined on the merits. It was indicated that reasons for the decision would follow in ...

These are they

The respondent was employed by the appellant as an Empty Bottles Clerk until August 2009 when he was retired after having attained the retirement age of sixty (60) years in January 2009. Mr Manyika had originally been an employee of the then Farmers Co-op. He had joined the Farmers Co-op Pension Fund in 1982. Under that Pension Fund's regulations the date of retirement was said to be January 2014. In 1995, there were changes in the company and a merger which saw the creation of the CFI Pension Fund. The pension regulations were changed with the passage of time. Under the CFI Pension Fund regulations, the age of retirement was lowered to 60 years and all the employees were informed of the change through their subsidiaries. The information was also communicated to the employees through their payslips. The same information was also placed on the notice boards which were accessible to all employees.

The respondent was still of the belief that his retirement age was sixty-five (65) years which would have been reached on 30 January 2014. According to the new pension regulations, the respondent should have been retired from work in January 2009. He was however retired in August 2009. The appellant admitted that there was an oversight on their part as there had been changes in the Human Resources Department. Mr Manyika unsuccessfully pleaded with the appellant to remain at work until January 2014.

Mr Manyika was aggrieved by the decision of the appellant and approached a labour officer complaining of unfair labour practice. The dispute was referred to compulsory arbitration.

After hearing both parties, the arbitrator issued the following award:

“Having carefully considered both oral and written submissions and evidence from both parties, I hereby declare that:

1. Respondent committed an unfair labour practice by prematurely retiring Eric Manyika on 31 August 2009 having given him short notice.

2. In light of this finding, and as a remedy to the unfair labour practice, I hereby order respondent to comply with one of the two options given below:

Either: (a) Reinstate claimant without loss of pay and benefits from 1 September 2009 and keep him to the pay roll until his normal retirement age on 13 January 2014;

(b) If reinstatement is no longer an option for whatever reason, pay claimant the following:

(i) Full pay and benefits from 1 September 2009 to 31 July 2011.

(ii) Cash-in-lieu of leave from 1 September 2009 to 31 July 2011.

(iii) 12 months pay as damages for loss of employment before normal retirement age.

(iv) 3 months notice pay.

(v) Any other terminal benefits which claimant may be legally entitled.”

The appellant was aggrieved by the decision of the arbitrator and approached the Labour Court. The appellant lodged an application for interim determination in terms of section 92E(3) of the Labour Act [Chapter 28:01] (“the Act”). It however withdrew the application.

On the day of the hearing, the respondent raised a point in limine alleging that the appellant had approached the court with dirty hands since it had not complied with the arbitrator's decision.

The Labour Court held that the appellant ought to have complied with the arbitrator's award before approaching the court. It upheld the point in limine and dismissed the appeal from the arbitral award.

The appellant noted an appeal to this Court on the following grounds:

1. The court a quo erred at law in finding that the appellant's failure to comply with an arbitration award it was appealing against constituted dirty hands and even then, to the extent that the appellant should be denied audience.

2. The court a quo erred at law and erred grossly on the facts in finding that the appellant was contemptuously failing to comply with the award. In so finding, the court disregarded the fact that the amount payable by the appellant to the respondent was not quantified.

3. The court a quo erred at law in finding that the appellant had dirty hands when the appellant's non-compliance was one in the context of a pending application for interim relief.

4. Assuming, without conceding, that the appellant's hands were dirty such as to be denied audience, the court a quo erred at law in dismissing the appellant's appeal for the reason alone. Instead, the court a quo should have denied the appellant audience but postponed the matter till such time when the appellant had complied with the arbitration award.

Section 92E of the Labour Act [Chapter 28:01] provides as follows:

“Section 92E: Appeals to the Labour Court generally:

(1) An appeal in terms of this Act may address the merits of the determination or decision appealed against.

(2) An appeal in terms of subsection (1) shall not have the effect of suspending the determination or decision appealed against.

(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.”

Section 92E(2) of the Labour Act [Chapter 28:01] only provides that the noting of an appeal to the Labour Court against a determination or decision does not have the effect of suspending the operation of the determination or decision appealed against. The purpose of the section is to provide for the effect of the noting of an appeal in terms of the Act on the enforcement of the determination or decision. The provision is the reversal of the common law principle that the noting of an appeal against a judgment or decision of a tribunal or lower court suspends the execution of the judgment or decision pending the determination of the appeal.

Section 92E(2) of the Labour Act [Chapter 28:01] does not impose an obligation on a party appealing against the determination or decision to act in terms of the determination or decision appealed against pending determination of the appeal. In other words, there is no provision requiring the appellant to first comply with the determination or decision appealed against in order to preserve the right of appeal.

There are remedies available to a party in whose favour the determination or decision appealed against has been made for its enforcement in the absence of an interim determination made by the Labour Court suspending the determination or decision appealed against pending determination of the appeal. The effect of the section is that it leaves the party in whose favour the determination or decision was given with a right to enforce the determination or decision appealed against by having it registered with the High Court or any Magistrates Court in terms of section 98(14) of the Labour Act [Chapter 28:01].

Section 92E(3) of the Act has no effect at all on the right to appeal.

It leaves the appellant with a right to apply for an interim determination suspending the execution of the determination or decision appealed against. The right holder may exercise the right or choose not to do so. He or she is not obliged to apply to the Labour Court for an interim determination. The fact that a party has opted, in the exercise of discretion, not to exercise a right given by law does not mean that he or she is guilty of approaching the court with dirty hands. Both parties are equally protected by the law as they have remedies available to them.

When the Labour Court refuses to hear an appeal on the basis that the appellant has not complied with the determination or decision appealed against, it is creating a remedy not provided for by the law.

The court a quo misapplied the principle of dirty hands to the facts of the case.

The principle of dirty hands governs a situation where a party is under a direct obligation imposed by law to act in a specific manner; which obligation the party deliberately refuses to perform. It is a time honoured principle based on the need for litigants who approach a court of law seeking relief to do so with the required degree of truthfulness and honesty. It does not apply in cases where the appellant fails to act in terms of a determination or decision appealed against under section 92E of the Labour Act [Chapter 28:01] because he or she would not be under an obligation to first comply with the determination or decision appealed against in order to be heard.

The right to be heard by a court in proceedings that have been properly instituted is a fundamental right that should not be lightly denied to a party.

In this case, the appellant was not guilty of contempt of court as suggested by the Labour Court because it was exercising the right to appeal to the court given by law. The court was obliged to hear the appellant in the appeal which was properly before it.

In the case of Zimbabwe Mining Development Corporation & Anor v African Consolidated Resources PLOC SC01-10, CHIDYAUSIKU CJ stated the following:

“The right of appeal is fundamental and critical to our justice system. Where the law confers the right of appeal on a litigant it should not be rendered nugatory or abrogated without due process. Due process requires that a case proceeds to finality, namely, the giving of a judgment. Once a judgment is given, the losing party who has a right to appeal is entitled, if he so wishes to note an appeal.”

See also Claudius Marimo and Anor v The Minister of Justice, Legal and Parliamentary Affairs SC25-06.

A party wishing to apply to the Labour Court for interim determination pending determination of the appeal against an arbitral award would have to consider the question whether the award appealed against is enforceable. The party contemplating to have the award registered with the High Court or Magistrates Court pending determination of the appeal by the Labour Court would have to consider the same question.

In this case, the award was not sounding in money.

It simply directed payment of damages. The parties were given the option of approaching the arbitrator in the event that they failed to agree on the quantum of damages. It goes without saying that the award could not be executed because the person in whose favour it was made could not even register it. That explains why the respondent did not take steps to enforce the award pending determination of the appeal notwithstanding the effect of section 92E(2) of the Labour Act [Chapter 28:01]. It also explains why the appellant was entitled, in the circumstances, not to apply for an interim determination.

If an arbitral award is patently ultra vires the jurisdiction of the arbitrator or is for some reason not executable what would happen if the Labour Court refuses to hear and determine the appeal on the ground that the appellant must first comply with the award appealed against?

It is clear that the right to be heard in the determination of the appeal noted in terms of the Labour Act remains extant even where an interim determination in the matter of the determination or decision appealed against is made.

At law, there cannot be a determination of an appeal without a hearing.

If the right to be heard on appeal were to be denied to the appellant on the ground that it had not applied for and obtained an interim determination suspending execution of the arbitral award, it would mean that the granting of an interim determination is obligatory when section 92E(3) of the Labour Act [Chapter 28:01] is a discretionary provision. A party may apply for an interim determination only when it realizes that there are chances of the determination or decision appealed against being executed pending determination of the appeal.

Section 92E(3) of the Labour Act is not limited to applications for suspension of determinations pending the outcome of the appeal. It is further not limited to interim determinations sought by a litigant against whom the determination or decision appealed against was made. A litigant in whose favour a determination was made, who is faced with an appeal against the determination or decision, may seek an interim determination.

If the court a quo's decision refusing to hear the appellant on the basis that it had not complied with the order was based on a sound principle of law, it would mean that the order would never be enforced and there would never be an appeal.

What is worse is that the court a quo dismissed the appeal instead of removing it from the roll.

View Appeal
HH373-15 : CARE INTERNATIONAL IN ZIMBABWE vs ZIMBABWE REVENUE AUTHORITY and DESMOND MANINIMINI and SURVIVAL HARDWARE (PRIVATE) LIMITED
Ruled By: MTSHIYA J

The first point in limine raised by the first respondent, that the applicant had not complied with section 196(1) of the Customs and Excise Act [Chapter 23:02] (“the Act”), is of crucial importance because all the other points can only be dealt with if the applicant is properly before the court - that includes points raised by the other respondents. ...

“6.1 The Application before this Honourable Court is premature and irregular. I aver so because Applicant has not complied with the mandatory provisions of section 196(1) of the Customs Act. The said section makes it mandatory that before instituting proceedings against the 1^st Respondent one shall first give sixty days notice of its intention to institute civil proceedings against the 1^st Respondent before the proceedings are instituted.

6.2 In the present case, the Applicant has not given any notice to the 1^st Respondent as required by the said section as read with the State Liabilities Act [Chapter 8:14].

6.3 Over the years, it has been the approach of this Honourable Court that the failure to give the required notice renders the application fatally defective, and, I aver that the present case is no exception and it should be dismissed.

6.4 I am further advised that no court of law has the discretion to dispense with strict compliance with the provisions of a statute. Again, it follows that the present application is invalid for want of compliance with section 196(1) of the Act.

6.5 On the above basis, this application ought to the dismissed with costs.”…,.

As the first point in limine raised by the first respondent is to the effect that there is no valid application before the court, it is therefore imperative to start by examining that point. That is important because if that point is upheld, everything else in casu will, in my view, indeed fall away. Upholding the point in limine will mean that the application is fatally irregular and cannot be entertained.

It is important to proceed by indicating the exact provisions of the law that the first respondent is relying on in raising its first point in limine.

Sections 6 and 7 of the State Liabilities Act [Chapter 8:14] provide as follows:

“6. Notice to be given of intention to institute proceedings against State and officials in respect of certain claims

(1) Subject to this Act, no legal proceedings in respect of any claim for -

(a) Money, whether arising out of contract, delict or otherwise; or

(b) The delivery or release of any goods;

and whether or not joined with or made as an alternative to any other claim, shall be instituted against -

(i) The State; or

(ii) The President, a Vice-President or any Minister or Deputy Minister in his official capacity; or

(iii) Any officer or employee of the State in his official capacity;

unless notice, in writing, of the intention to bring the claim has been served in accordance with subsection (2) at least sixty days before the institution of the proceedings.

(2) A notice referred to in subsection (1) -

(a) Shall be given to each person upon whom the process relating to the claim is required to be served; and

(b) Shall set out the grounds of the claim; and

(i) Where the claim arises out of goods sold and delivered or services rendered, shall specify the date and place of the sale or rendering of the services and shall have attached copies of any relevant invoice and requisition, where available; and

(ii) Where the claim is against or in respect of an act or omission of any officer or employee of the State, shall specify the name and official post, rank or number and place of employment or station of the officer or employee, if known.

(3) The court before which any proceedings referred to in subsection (1) are brought may condone any failure to comply with that subsection where the court is satisfied that there has been substantial compliance therewith or that the failure will not unduly prejudice the defendant.

(4) For the purposes of this section, legal proceedings shall be deemed to be instituted by the service of any process, including a notice of application to court and any other document by which legal proceedings are commenced, in which the claim concerned is made.

7. Exemptions

Section six shall not apply to -

(a) A claim in which the debt concerned has been admitted to the claimant, expressly and in writing; or

(b) A counter-claim; or

(d) A claim in respect of which the defendant has waived, expressly and in writing, the notice required by section six.”

The above exemptions are not relevant in casu.

Section 196 of the Customs and Excise Act [Chapter 23:02] (“the Act”) as amended by Act No.17 of 1999 provides as follows:-

“196 Notice of action to be given to officer

(1) No civil proceedings shall be instituted against the State, the Commissioner or an officer for anything done or omitted to be done by the Commissioner or an officer under this Act or any other law relating to customs and excise until sixty days after notice has been given in term of the State Liabilities Act [Chapter 8:15].

(2) Subject to subsection (12) of section one hundred and ninety-three, any proceedings referred to in subsection (1) shall be brought within eight months after the cause thereof arose, and if the plaintiff discontinues the action, or if judgment is given against him, the defendant shall receive, as costs, full indemnity for all expenses incurred by him in or in respect of the action and shall have such remedy for the same as any defendant has in other cases where costs are given by law.”

Section 2 of the Customs and Excise Act [Chapter 23:02] defines the Commissioner referred to in section 196(1) above as follows:

“'Commissioner' means -

(a) The Commissioner in charge of the department of the Zimbabwe Revenue Authority which is declared, in terms of the Revenue Authority Act [Chapter 23:11], to be responsible for assessing, collecting and enforcing the payment of duties in terms of this Act; or

(b) The Commissioner-General of the Zimbabwe Revenue Authority, in relation to any function which he has been authorised under the Revenue Authority Act [Chapter 23:11] to exercise.”

The above definition creates a link between the Customs and Excise Act [Chapter 23:02] and the Revenue Authority Act [Chapter 23:11], particularly when read together with sections 38 and 39 of the Revenue Authority Act.

Sections 38 and 39 of the Revenue Authority Act provide as follows:

“38 Savings

Where, before the fixed date -

(a) The Commissioner of Taxes; or

(b) The Director of Customs and Excise; or

made any assessment or decision, or issued any notice or directive, or did any other thing whatsoever in terms of an Act specified in the First Schedule, and that assessment, decision, notice, directive or other thing had or was capable of acquiring effect immediately before the fixed date, it shall be deemed to have been made, issued or done, as the case may be, by the appropriate Commissioner or officer in terms of the Act concerned as amended by this Act, and shall continue to have effect or to be capable of acquiring effect, as the case may be, accordingly.

39 Construction of certain references

Any reference in any enactment, other than a provision of an Act amended by the Third Schedule, or in any document to -

(a) The Director or Controller of Customs and Excise, shall be construed as a reference to the Commissioner in charge of the department which is declared, in terms of subsection (2) of section twenty-one, to be responsible for assessing, collecting and enforcing the payment of duties under the Customs and Excise Act [Chapter 23:02];

(b) The Department of Customs and Excise, shall be construed as a reference to the department referred to in paragraph (a);

(i) In relation to value added tax, shall be construed as a reference to the Commissioner in charge of the department which is declared, in terms of subsection (3) of section twenty-one, to be responsible for assessing, collecting and enforcing the payment of the value-added tax leviable under the Value Added Tax Act [Chapter 23:12];

(ii) In relation to any other tax or impost, shall be construed as a reference to the Commissioner in charge of the department which is declared, in terms of subsection (2) of section twenty-one, to be responsible for assessing, collecting and enforcing the payment of the taxes leviable under the Income Tax Act [Chapter 23:06];

(d) The Department of Taxes, shall be construed as a reference to the department referred to in paragraph (c).”

In view of the foregoing clear provisions of the law, there can be no doubt that the Commissioner referred to in section 196(1) of the Customs and Excise Act [Chapter 23:02] is the Commissioner-General responsible for the supervision and management of the first respondent.

It is common cause that the notice referred to in section 196(1) of the Customs and Excise Act [Chapter 23:02] was not given to the Commissioner General or the first respondent before the filing of this application.

The first respondent is an authority established in terms of section 3 of the Revenue Authority Act [Chapter 23:11] and its functions are given under section 4 of that Act as follows:

“4. Functions and powers of Authority

(1) The functions of the Authority shall be -

(a) To act as an agent of the State in assessing, collecting and enforcing the payment of all revenues; and

(b) To advise the Minister on matters relating to the raising and collection of revenue; and

(c) To perform any other function that may be conferred or imposed on the Authority in terms of this Act or any other enactment.

(2) For the better exercise of its functions, the Authority shall have the power, subject to this Act, to do or cause to be done, either by itself or through its agents, all or any of the things specified in the Second Schedule, either absolutely or conditionally and either solely or jointly with others.”

The operations of the authority are supervised and managed by a Commissioner-General, whose functions are stipulated under section 19(4) of the Revenue Authority Act [Chapter 23:11] as follows:

“(4) The Commissioner-General shall be responsible, subject to the Board's control, for -

(a) Supervising and managing the Authority's staff, activities, funds and property; and

(b) Performing such other functions as the Board may assign to him or as may be conferred or imposed on him by or under this Act or any other enactment.”

There is no dispute regarding the position or authority of the Commissioner-General in relation to the transition from the former office of Director or Controller of Customs and Excise under the Act. The authority, as agent of the State, and under the supervision and management of the Commissioner-General, is charged with carrying out the functions spelt out in the Act and also in section 19(4) of the Revenue Authority Act as quoted above. That explains the continued protection granted under sections 196 and 6 of the Customs and Excise Act and the State Liabilities Act respectively.

It was argued that in enacting the Revenue Authority Act, Parliament was already aware of the provisions of section 196 of the of the Customs and Excise Act, as amended by Act No.17 of 1999, but it did not deem it necessary to expressly extend the protection to the new entity called the Zimbabwe Revenue Authority (i.e. first respondent).

That argument, however, does not go far to explain why the legislature did not expressly remove the protection from the agent of the State, now seized with exactly the same functions that were formerly executed by the department of Customs and Excise.

It cannot be denied that the Authority (first respondent) is as an agent of the State and continues to carry out the functions of the former department of Customs and Excise. The law protecting the former officers and the former department of Customs and Excise is still in our statutes. The protection has been retained for the benefit of the first respondent and its officers.

It is important, at this stage, to also take note of the endorsement on the official Notice of Seizure issued to the applicant on 27 September 2012. The relevant endorsement reads as follows:

“If you wish, you may, within three months from the date of this notice, make your own written representations to the Port Manager of the Port shown on this notice, for the release of the goods.

Additionally or alternatively you may, within three months from the date of this notice and subject to the submission of written notification, 60 days beforehand, in terms of the provisions of section 196 of the Act, institute proceedings for the recovery of the goods from the Commissioner or for the payment of compensation in respect of any dangerous or perishable goods which have been disposed of by the Commissioner.

If the Commissioner does not release the goods following representations made by you or if you do not institute proceedings within the period specified, any goods declared to be forfeited will become the property of the State without compensation.”

The endorsement on the seizure notice cannot be taken lightly. It explains the law and those affected, like the applicant, should obey the mandatory provisions of the law. There was, therefore, a clear need, on the part of the applicant, to give the requisite notice to the first respondent before making this application.

Failure to give the notice was, in my view, fatal.

There is, therefore, no proper application before the court, and, as already stated, upholding this point in limine, means that the court cannot proceed to do anything else. I liken this position to a situation, where, in an urgent application, the court, upon making a finding that there is no urgency, cannot proceed to the merits.

I am also unable to ignore the authorities relied on by the first respondent, namely, Tasmine P/L v Zimbabwe Revenue Authority HB115-09; Ronald Machacha v Zimbabwe Revenue Authority HB186-11; Puwayi Chiutsi v Commissioner of Police and Zimbabwe Revenue Authority and Anor HH65-05; and Bethy Dube v ZIMRA HB02-14, where the need to comply with section 196(1) of the Customs and Excise Act [Chapter 23:02] was emphasized.

In Puwayi Chiutsi v Commissioner of Police and Zimbabwe Revenue Authority and Anor HH65-05, BHUNU J said:

“Apart from the need to exhaust domestic remedies before approaching the courts, section 196 precludes the applicant from approaching the courts before observing laid down procedures…,. As the laid down, 60 days period has not yet expired, this application is ill-conceived and premature. The section is mandatory and admits of no exception because it constitutes a prohibition without making provision for any exception.”

In addition to the mandatory need for notice, I fully associate myself with the above.

I agree with the first respondent that there is no valid application before the court, and, accordingly, the rest of the other issues raised by the respondents cannot be delved into. This finding estoppes me from going any further.

I therefore order as follows:

1. The first point in limine raised by the first respondent be and is hereby upheld.

2. The application is not properly before the court and is therefore dismissed with costs.

SC131-21 : CHANTELLE MUTESWA vs FRANK BUYANGA SADIQI
Ruled By: UCHENA JA, CHITAKUNYE JA and KUDYA JA

This is an appeal against the judgment of the High Court dated 18 March 2020 in which it granted to the respondent joint custody and joint guardianship of the minor child.

In the same order, the court a quo, thereafter, ordered that an investigation be conducted by the Department of Social Welfare into how the parents were to exercise joint custody and joint guardianship.

The appellant appealed to this Court and has argued that joint custody and joint guardianship is not in the best interests of the minor.

Counsel for the appellant conceded, that, the court a quo's decision on the applicability of the common law, as enunciated in the court a quo's paragraph 1 of this order, is correct.

That paragraph reads as follows:

“The common law rule that gives the mother of a child born out of wedlock sole guardianship and sole custody and denies the natural father of such a child parental power is inconsistent with sections 56(1), 56(3), 81(1)(a) of the Constitution of Zimbabwe 2013 and is invalid.“

The appellant took issue with the granting of the joint custody and joint guardianship of the minor child before an inquiry into what would be in the best interests of the child had been made.

Counsel for the appellant submitted, that, the best interests of the minor child should have been inquired into before granting joint custody and joint guardianship.

In response, counsel for the respondent, by reference to the chicken and egg conundrum, argued that while investigation was essential, the court a quo correctly granted joint custody and joint guardianship and thereafter ordered that an investigation be conducted.

In our view, the welfare of the minor child is delicate and important. It should not be prematurely exposed to unverified parental circumstances.

It is therefore our view, that, the court a quo should not have determined the issue of joint custody and joint guardianship before the investigations it ordered in paragraph 4 had been done. In the result:

1. The appeal partially succeeds.

2. The court a quo's order in paragraph 1 is upheld.

3. The court a quo's order in paragraphs 2, 3 and 4 are hereby set aside.

4. The matter is hereby remitted to the court a quo for it to determine the issue of joint custody and joint guardianship after an inquiry as to whether or not joint custody and joint guardianship, in the circumstances of the parties, is in the best interest of the child.

5. In the case of a finding that it is in the best interest of the child, how joint custody and joint guardianship should be exercised without jeopardising the best interest of the child.

6. Each party shall bear its own costs.

HB31-15 : TAMIRA OVERSEAS S.A. vs AQUIRIUM TRADING (PVT) LTD
Ruled By: TAKUVA J

The applicant applied for an order placing the respondent under provisional liquidation in terms of sections 207, 206(f)(g) as read with section 205(c) of the Companies Act [Chapter 24:03].

This Court, per MAKONESE J, on 18 September 2014, issued the following provisional order:

“1. The respondent, Aquirium Trading (Pvt) Ltd is provisionally wound up, pending the grant of an order in terms of paragraph 3 or the discharge of this order.

2. Subject to subsection (1) of section 274 of the Companies Act [Chapter 24:02], Mr Knowledge Hofisi of Aurifin Capital (Pvt) Ltd is appointed as provisional liquidator of the respondent company with the powers set out in section 221(2)(a) to (g) of the Act.

3. Any interested party may appear before the court, sitting at Bulawayo on 11th December 2014, to show cause why a final order should not be made placing respondent company in liquidation and ordering that the costs of these proceedings shall be costs of liquidation.

4. This order shall be published once in the Zimbabwe Government Gazette and once in the Herald newspaper. Publication shall be in the short form annexed to this order.

5. Any person intending to oppose or support the application on the return day of this order shall -

(a) Give due notice to the applicant at care of its legal practitioners, Messrs G. N. Mlotshwa & Company c/o Majoko and Majoko Legal Practitioners, 1st Floor, Triumphant House, 111a Josiah Tongogara Street, between 11th and 12th Avenue Bulawayo.

(b) Serve on the applicant a copy of an affidavit which he files with the Registrar of the High Court.”

The respondent filed a notice of opposition on 18 October 2014. It also filed its heads of argument on 28 November 2014 and its legal representative appeared in court on 11 December 2014 and opposed the confirmation of the provisional order....,.

The respondent's opposition is based on a number of grounds. Perhaps, it would be instructive to state the brief background facts before I consider the respondent's grounds for opposing the matter.

The respondent company was incorporated in 2004 by one Taleb Mohamad and Sandra Van Rooyen, to, among other things, pursue mining interests in the Midlands Province.

Sometime in 2012, the applicant company, Tamira Overseas SA, sought to invest in Acquirium Trading (Pvt) Ltd. In pursuant of that quest, various tentative agreements were entered into subject to the fulfillment of certain conditions.

On or about the 28th of August 2014, the applicant filed for the respondent's liquidation alleging that the respondent was heavily indebted to the applicant. On 18 September 2014, the applicant obtained the order referred to earlier in this judgment.

Let me come back to the notice of opposition and the grounds thereof. They are as follows:

1. The order for provisional liquidation was improperly prayed for and granted and must be set aside. The respondent submitted, that, it was not served in terms of the Rules before this provisional order was granted.

2. That, Messrs G.N. Mlotshwa and Company Legal Practitioners are conflicted out in this matter.

3. That, the application has not been properly brought before the court.

4. That, on the facts, the respondent company should not be placed under liquidation as there are no proper grounds for the placement of the respondent company under liquidation.

5. That, at the very least, the respondent should be placed under judicial management.

In respect of the first ground, it was submitted, on the respondent's behalf, that, before the provisional order was granted, the application for the provisional order was not served on the respondent at its registered address. The application was purportedly served on Heena Joshi who is not a director of respondent.

The notice of set down was not served on anyone.

Further, there was no affidavit of service filed with the court before the order was obtained.

The respondent also contended, that, the manner in which the applicant proceeded under the circumstances is in breach of section 5(2) of the Companies (Winding Up) Rules 1972 which provides;

“Except where the petition is presented by the company itself, a copy of the petition and the notice of set down for hearing shall be served upon the company by delivering of such copy at its registered office or to a responsible person at its place of business, failing such service, to a director or secretary of the company, or, if the company is in voluntary liquidation, to the liquidator. An affidavit of service shall be filed with the petition.”

Reliance was placed on the principle set out in African Gold (Zimbabwe) (Pvt) Ltd v Modest (Pvt) Ltd 1999 (2) ZLR 61 (SC)…, where the court observed as follows:

“A respondent company must not be deprived of the opportunity to put forward its opposition to the grant of an order which will have the effect of causing it to suffer an immediate diminution in personal status and a removal of control over all its assets.

The manifestly serious consequences flow from the issue of a provisional winding up order.

The provisional liquidator is almost invariably vested by the court with the wide powers set out in paragraphs (a) to (h) of section 221(2) of the Companies Act [Chapter 24:03]: see the remarks of HOFMEYER J in Mackay v Cahi 1962 (4) SA 193 (O) at 203G-H, which, though referring to sequestration proceedings, are nonetheless apposite and Walsh v Kugar 1965 (2) SA 756 (E) at 760B.

A fortiori, so it seems to me, the present appellant, being the victim of an inexcusable breach of procedure, the High Court ought to have afforded it the opportunity to oppose the application for the provisional order by the only means available, namely, by setting aside of the order that had been improperly obtained.”…,.

See also Reserve Bank of Zimbabwe v Trust Bank Corporation Ltd HC1070/13.

For this reason, the respondent prayed for the discharge of the provisional order with costs without even considering any other issues.

As pointed out above, the applicant did not file any heads of argument despite having been served with the respondent's heads.

Also, the applicant's principal legal practitioners did not attend and no explanation for their absence was proffered.

Counsel for the applicant submitted, that, he was a mere corresponding legal practitioner who was not versed with the facts of the matter. He indicated that he would stand by the papers filed of record.

There is no proof of service of the application for a provisional order in the record.

Consequently, the only inference is that it was granted on an ex parte basis.

This is irregular and I would discharge the provisional order for this reason.

Had the respondent not prayed for an order that the respondent be placed under judicial management the matter would have ended here.

SC134-21 : OK ZIMBABWE LIMITED vs BENJAMIN TAZVIVINGA
Ruled By: GWAUNZA DCJ, HLATSHWAYO JA and BERE JA

This is an appeal against the default judgment granted by the Labour Court on 2 November 2016.BACKGROUND FACTSThe respondent was employed by the appellant as a till operator. On 30 June 2015, there was a scuffle between the respondent and a customer over an issue of change. A spot check ...

This is an appeal against the default judgment granted by the Labour Court on 2 November 2016.

BACKGROUND FACTS

The respondent was employed by the appellant as a till operator. On 30 June 2015, there was a scuffle between the respondent and a customer over an issue of change. A spot check was conducted and a shortfall of $45 was discovered in the respondent's till. The respondent was asked to write a report of the incident and the shortfall.

In the report, he stated, that, the shortfall was caused by $50 which he had given to a fellow till operator, Nancy Chawanza, who had forgotten to return the money. The respondent also stated, in the report, that, he had served a customer and given him $180 cash back instead of $130. He averred that the customer later returned the $50 after realising the error and he replaced the money in his till without notifying his supervisors.

The respondent was subsequently charged with the offence of deliberately giving untrue or incorrect information and for unsatisfactory work performance.

A disciplinary hearing was conducted, and he was found guilty, and was subsequently dismissed.

He appealed against the decision to the Local Joint Committee which upheld the determination and the dismissal. Aggrieved, the respondent appealed to the National Employment Council for the Commercial Sections (NEC) which upheld the determination and dismissed the appeal.

As a result, the respondent noted an appeal with the Labour Court on 1 June 2016.

The appellant failed to file a notice of response at the Labour Court within the stipulated time, only to attempt to do so some four (4) months later, on 18 October 2016, together with heads of argument. This was so despite the appellant having been favoured with a letter from the Registrar of the Labour Court calling on it to file a response.

At the hearing of the matter, the court a quo proceeded in terms of Rule 22(b)(1) of the Labour Court Rules, 2006 (SI59 of 2006) (heinafter referred to as “the Rules”) and entered default judgement against the appellant.

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

(a) The court a quo erred, on a question of law, by proceeding to enter default judgment against the appellant in circumstances in which the appellant had filed a notice of response, albeit belatedly, as well as heads of argument which would have enabled the court to determine the matter on the merits.

(b) The court a quo erred, on a question of law, by failing to find, that, the explanation which was given by the appellant for the delay in filing the Notice of Response constituted good cause for the delay.

(c) The court a quo made an error, on a question of law, by not taking into account the nature of the case and failing to apply its discretion judiciously, more specially by not considering the evidence on record which demonstrated that the respondent had admitted to the offences with which he was charged, which offences attracted a penalty of dismissal.

(d) The court a quo, in any event, erred, on a question of law, by failing to give reasons for the judgment which is appealed against. A failure to give reasons constitutes a judicial irregularity.

SUBMISSIONS BEFORE THIS COURT

At the hearing of the appeal, counsel for the appellant argued, that, the court a quo erred in not providing reasons for its decision, which was that of the default judgment.

Per contra, counsel for the respondent submitted, that, since what was being appealed against was a default judgement, it could only be set aside through an application for rescission of that judgment.

He further submitted, that, the appellant had not requested the reasons from the Labour Court.

APPLICATION OF THE LAW TO THE FACTS

After hearing submissions, my view is that the sole issue to be determined is whether the default judgment entered by the court a quo is appealable.

The respondent filed its notice of appeal to the Labour Court on 1 June 2016. In terms of the Labour Court Rules, 2006, the appellant had 14 days within which it could file its notice of response.

Rule 19(2) of the Labour Court Rules, 2006 provides as follows:

“(2) The registrar, shall, within thirty days of receiving a notice of appeal in terms of subrule (1)(d), give notice in Part I of Form LC2 to the respondent —

(a) To complete, in three copies, a notice of response to the appeal in Part II of Form LC2; and

(b) To do the following within fourteen days of the date when the registrar gives notice to the respondent under this subrule —

(i) Serve one copy of the notice of response on the appellant: and

(ii) File with the registrar one of the other copies of the notice of response, together with proof (as required by Rule 11) that the notice of response was served on the appellant….,.”

The appellant failed to adhere to the Rules of the court, and it later filed its notice of response and heads of argument way out of time - some four (4) months after the Registrar had given the appellant notice.

There is no evidence on record that an application for condonation for late filing of the notice of response and heads of arguments was made.

It therefore follows, that, the court a quo granted a default judgment in terms of Rule 22(b)(1) of the Labour Court Rules which provides as follows:

“22 Where a party fails to file a Notice of Response

Where notice has been given to a party to file a notice of response within the period specified in Rule 14, 15 or 16 and that party fails to comply, the matter shall nevertheless be set down in terms of Rule 21, and if, on the day of hearing, the defaulting party —

(a)…,.

(b) Does not appear or show good cause why he or she did not file a response, the Court may, according to the nature of the case, or as the justice of the case requires —

(i) Enter a default judgement against the defaulting party;”

A reading of the above provisions will show, that, a respondent who has been served with a notice to respond by the Registrar must file its notice of response within 14 days and serve both the appellant and the Registrar.

Failure to act in terms of the above Rules of court results in the offending party being barred and default judgment entered against him at the discretion of the court.

In casu, the appellant, in the court a quo, was barred from making submissions as it had filed its notice of response out of time - which fact the appellant admitted in its heads of argument. It therefore followed that judgment was granted in default.

The court, in Katritsis v De Macedo 1966 (1) SA 613 (A), held that:

“It is clear from the authorities that the default in regard to a defendant is not confined to his failure to file the necessary documents required by the Rules in opposition to the claim against him, or to appear when the case is called, but, comprises also failure to attend Court during the hearing of the matter.”

As the judgment that was given by the court a quo was a default judgment in nature, the question that ought to be asked is: whether one can appeal on the merits before the bar has been lifted.

According to our law, a party cannot appeal against a default judgment.

The correct procedure would be for that party to make an application for the judgment to be rescinded first: see Chintengo v Tredcor & Anor SC67-19.

This approach was underlined by this Court in Sibanda and Ors v Nkayi Rural District Council 1999 (1) ZLR 32 (S) where it held as follows:

“The present appeal is therefore against the order of 23 May 1997 dismissing the application for rescission of the order made on 8 November 1996. That order of 23 May 1997, as I understand it, was effectively a default judgment. The practitioner who appeared for the appellants presented no submissions on the merits. There were no reasons given for judgment. Once the postponement was refused, the appellants were effectively in default. Procedurally, therefore, the appellants should have sought a rescission of the default judgment of 23 May, rather than appeal against it. On this ground alone, the appeal must fail.”…,.

In Zvinavashe v Ndlovu SC 2006 (2) ZLR 372 (S) it was held:

“The defining feature of a judgement granted after a party fails to appear is the default of the absent party…; that decision remained a default judgment whose setting aside could only follow a successful application for its rescission.”

This Court, again, had the occasion to deal with a similar matter in Guoxing Gong v Mayor Logistics (Pvt) Ltd and Anor SC02-17 wherein BHUNU JA held as follows:

“It is trite, that, save in special circumstances which do not concern us here, no appeal lies to this Court against a default judgment which is normally reversed by rescission of judgment or a declaration of nullity. It therefore follows, that, in the absence of special circumstances, no valid ground of appeal can be laid at the door of this Court concerning the propriety or otherwise of a default judgment. Whether or not there was non-joinder or any other irregularity pertaining to the default judgment, that is a complaint to be laid at the court a quo's door and not this Court.”

The appellant has invited this Court to deal with the merits of this matter as it is seized with all the material facts it needs to make a decision. He relies on the case of Madza & Ors v The Reformed Church in Zimbabwe Daisyfield Trust & Ors SC71-14 wherein ZIYAMBI JA held as follows:

“This court is always reluctant to decide matters at first and last instance although it is quite possible that it may do so in exceptional circumstances.”

Unfortunately, this case does not fall into the category of 'exceptional circumstances' as referenced above.

There is nothing exceptional in the circumstances, but, rather, what is there is a disregard of proper practice and procedure that a default judgment can only be set aside by its rescission. It follows, that, as this is not one of the exceptional circumstances, this Court cannot be moved to hearing this matter in the first and last instance: see Bakari v Total Zimbabwe (Private) Limited SC21-19.

DISPOSITION

The appellant, having had default judgment entered against it, and having not taken steps to have it rescinded, that default judgment remains extant. No appeal can lie against it.

The present purported appeal is improperly before this Court, and, it is, accordingly, struck off the roll with costs following the outcome.

SC137-21 : ZIMBABWE NEWSPAPERS (1980) LIMITED vs TEMBANI KUFA
Ruled By: MAKARAU JA, GOWORA JA and MATHONSI JA

The delay in handing down judgment in this matter, especially considering the manner in which the matter will be disposed of, is most sincerely regretted.

The appellant employed the respondent as a Security Officer.

It has appealed against the entire judgment of the Labour Court (“the court a quo”) handed down on 14 September 2012. The judgment allowed an appeal by the respondent against the decision of the appellant's disciplinary committee (“the committee”) which found him guilty of misconduct and dismissed him from employment.

THE FACTS

On a date that is not material, the respondent allegedly gave copies of his payslips to a former employee of the appellant who was involved in a labour dispute with the appellant. The payslips were duly attached as evidence by the former employee to his court papers which were served on the appellant.

Thereafter, the appellant charged the respondent with two counts of misconduct for breaching Clause 8.5 of the Zimbabwe Newspapers Company Code of Conduct. Specifically, the respondent was accused of committing any act, misconduct or omission inconsistent with the express or implied conditions of employment and acting in conflict with the Group Business or Editorial Policies.

I note, in passing, that, the single act gave rise to two separate charges neither of which was preferred in the alternative, a glaring irregularity that was not adverted to by either of the parties at the hearing of the matter, as it offends the rule against the splitting of charges.

The issue was not raised with counsel and it cannot be a point on which this appeal may turn.

In his written response to the charges, the respondent denied that he had furnished the former employee with his payslips for personal use.

He appeared before a disciplinary committee on 19 November 2010.

At the hearing of the matter, the respondent argued, that, the disclosure of a payslip was not an act of misconduct specifically provided for in the code of conduct. He further argued, that, the prohibition against disclosure of a payslip was only introduced after he had been charged.

At the end of the hearing, the disciplinary committee found that the copies of the pay slips attached to the former employee's application appeared to belong to the respondent; that two witnesses testified that the respondent had admitted to them that he had given his payslips to the former employee; and that the respondent, in furnishing his payslips to the former employee, was being disloyal to the employer.

On the basis of these findings, the committee duly found the respondent guilty and dismissed him from employment.

I also note at this stage, that, there was no specific finding by the disciplinary committee that the respondent knew, at the time he allegedly gave his payslips to the former employee of the appellant, that his conduct was prohibited. It was the finding of the disciplinary committee, that, by giving his pay-slips to the former employee, the respondent acted disloyally.

Aggrieved by that decision, the respondent appealed to the Group Chief Executive Officer. He raised a number of grounds of appeal:

(i) The first was that the “offence involving payslips” was not provided for in his contract of employment or the code of conduct and that the endorsement on all payslips that they are “private and confidential” only appeared after his conviction and not before.

(ii) Secondly, the respondent argued, that, there was no evidence of any wrongdoing on his part and that the charges preferred against him were contrary to public policy as the appellant wanted to further its illegal practice of underpaying workers, and, as such, the respondent was not obliged to protect such an interest.

The respondent also alleged, that, the verdict of guilty went against the weight of evidence in that the former employee testified that he had not received the payslips from the respondent and no evidence was led to controvert such testimony.

He also attacked the procedure adopted in sentencing him alleging that he was not called upon to mitigate before the penalty was imposed on him.

Finding no merit, the appellant's Group Chief Executive Officer dismissed the appeal.

He found, that, the offence was provided for in the appellant's code of conduct and that the disclosure of payslips, or copies of pay slips, to any third party, is inconsistent with the implied conditions of the employment contracts of all the appellant's employees and in direct conflict with the interests of the Group.

He found, that, the burden of proof was on the respondent to prove that he did not give his payslips to the former employee. It was his finding that the respondent had failed to discredit the evidence that his pay-slips were found attached to the former employee's court papers.

The Group Chief Executive Officer relied on the minutes of the disciplinary committee hearing in holding that the respondent had made an admission to the two witnesses called by the appellant.

PROCEEDINGS A QUO

Still dissatisfied, the respondent noted an appeal to the court a quo on a multiplicity of grounds, nine in total. Only three of those grounds of appeal raised issues of law.

In essence, they raised the issue whether the respondent's conduct, if proved, amounted to an act inconsistent with the express or implied conditions of his contract of employment.

This is so because the respondent's conduct complained of occurred immediately before the condition that payslips were private and confidential was introduced. This, in addition to the other issues, was a live issue that had to be determined.

Using somewhat different language, the court a quo also identified the issue of whether the conduct of giving a payslip to a third party, prior to their being endorsed “private and confidential” constituted a misconduct.

The court a quo regarded it as the sole issue for determination.

In a rather terse judgment, the court a quo upheld the appeal on essentially three premises, namely:

1. That, the respondent, and all other employees of the appellant, were not aware that furnishing their payslips to another was conduct inconsistent with the terms of their employment.

2. That, there was no evidence on record to prove that the respondent had given his payslips to the former employee.

3. That, the failure to allow the respondent the opportunity to mitigate before the pronouncement of a penalty was incurably bad and vitiated the entire proceedings.

PROCEEDINGS BEFORE THIS COURT

The roles were immediately reversed. Dissatisfied with the decision of the court a quo, it became the appellant's turn to appeal to this court.

It attacked the decision a quo on several bases:

(i) First, that the court a quo erred in finding that the respondent was not properly charged.

(ii) Second, that it erred in finding that the respondent was not aware that the confidential nature of the payslips did not have to be spelt out.

(iii) Third, that it erred in finding that there was no adequate evidence before the disciplinary committee that the respondent had given his payslips to the former employee.

(iv) Lastly, that the court a quo erred in finding that the failure to mitigate vitiated the proceedings as dismissal was the only appropriate penalty in terms of the Code of Conduct.

At the commencement of the hearing of the appeal, counsel for the appellant made an oral application to amend the prayer in the Notice of Appeal.

Counsel desired to insert words to provide for an order that the appeal be allowed. He did so upon a realization that this was omitted in the prayer contained in the Notice of Appeal.

Counsel for the appellant submitted, that, no prejudice will be suffered by the respondent if the amendment is granted especially as the respondent's counsel had not even picked up the defect in the prayer. In fact, the respondent had prepared to meet the appeal without regard to the defect.

While acknowledging that he had not even noticed the defect, counsel for the respondent opposed the application for the amendment.

He submitted, that, the Notice of Appeal must clearly set out the relief sought. If it fails to do so, it is null and void and cannot be amended for the reason that one cannot amend a nullity.

For his part, counsel for the appellant was quick to concede that the prayer is defective as it does not meet the requirements of Rule 37(1)(e) of the Supreme Court Rules 2018. He, however, refuted that the defect is one which renders the appeal a nullity.

In his view, the court is empowered, by Rule 41, to allow an amendment to the grounds of appeal or to any pleadings filed before it, presumably including a prayer.

ANALYSIS

It has been stated, repeatedly, by the courts, that, a failure to comply with the mandatory provisions of the Rules when lodging an appeal renders the appeal a nullity: see Matanhire v BP Shell Marketing Services (Pvt) Ltd 2004 (2) ZLR 147 (S).

Generally, where a Notice of Appeal does not comply with the Rules, the matter ought to be struck off the roll. This is because a nullity cannot be amended: see Chikura N.O. & Anor v Al Shams Global BVI Ltd SC40-17.

The belated application for an amendment is meant to bring the appeal within the remit of Rule 37(1) which requires, that, every civil appeal shall be instituted in the form of a notice of appeal signed by the appellant or his or her legal practitioner which shall state, inter alia “the exact relief sought.”

The relief sought by the appellant in this case is couched in the following words:

“WHEREFORE appellant prays that the judgment of the court a quo be altered to read as follows –

'The appeal be and is hereby dismissed.'”

If the proposed amendment is granted, the prayer will read:

“WHEREFORE the appellant prays that the appeal be allowed with the judgment of the court a quo altered to read as follows -

'The appeal be and is hereby dismissed.'”

The concession made by counsel for the appellant, that the prayer is defective, is properly made.

The question however is whether the application should be granted. Put in another way: can the defective prayer be amended?

This Court was confronted with a similar situation in the case of Ndlovu & Anor v Ndlovu & Anor SC133-02. In that case, the prayer in the Notice of Appeal was couched in the following terms:

“…, that the judgment of the court a quo be dismissed with costs.”

Writing for the court, MALABA JA…, followed the reasoning in Jensen v Acavalos 1993 (1) ZLR 216 (S)…,.

He observed, that, the Notice of Appeal was clearly defective as there was no mention whether the whole or only part of the judgment was being appealed against and the exact nature of the relief sought.

At p2 of the cyclostyled judgment, he stated:

“In this case, there was no mention of whether the whole or part only of the judgment was being appealed against. The exact nature of the relief sought was not stated. What was prayed for in the notice of appeal was that the judgment of the court a quo be dismissed with costs. It is the appeal which is dismissed or allowed. If the appeal is allowed the judgment or decision appealed against is then set aside and a new order substituted in its place. In this case, it was not known what order the appellants wanted this Court to make in the event the appeal succeeded.”

The court concluded, that, the notice of appeal, which purported to institute the appeal “was incurably defective.” As there was no appeal before the court, the matter was struck off the roll with costs.

The case of Ndlovu & Anor v Ndlovu & Anor SC133-02 is on all fours with the present matter.

It has not been suggested that a departure from the case is called for. It settles this matter because the prayer is incurably defective. It cannot be amended.

DISPOSITION

A Notice of Appeal which does not meet the requirements of the Rules of court is fatally defective and invalid. A fatally defective compliance with the Rules on the filing of an appeal cannot be condoned or amended.

The appellant's Notice of Appeal suffers the fate of all fatally defective appeals.

Having come to the conclusion, that, there is no valid appeal before the court, there is no basis for relating to the merits.

In the result, it be and is hereby ordered as follows:

1. The matter is struck off the roll.

2. The appellant shall bear the costs.

SC138-21 : DIVVYLAND INVESTMENTS (PRIVATE) LIMITED vs DAVID CHIWEZA
Ruled By: PATEL JA, GUVAVA JA and BHUNU JA

This is an appeal against the whole judgment of the High Court which was handed down on 10 April 2019. The gripe of the appellant is that the court a quo dismissed its claim and granted an order in favour of the respondent's counter-claim.BACKGROUND FACTSThe facts of the matter which ...

BACKGROUND FACTS

The facts of the matter which have a bearing on the dispute may be summarised in the following manner:

The appellant is a private limited company duly registered in accordance with the laws of Zimbabwe. The respondent is a private individual and resides at 12 Le Roux Drive, Hillside, Harare.

On 19 July 2017, the appellant issued summons against the respondent and sought an order in the following terms:

“(a) Ejectment forthwith of the defendant and all those claiming occupation through him from the property at Number 12 Le Roux Drive, Hillside, Harare.

(b) Payment of damages in the sum of US$58,000 to plaintiff;

(c) Payment of holding over damages in the amount of US$700 per month calculated from the 01st June 2017 to date of eviction;

(d) Costs of suit on the higher scale of legal practitioner and client.”

The basis of the claim followed a purported breach of contract by the respondent.

In its declaration to the summons, the appellant averred, that, sometime in September 2009, the parties entered into a verbal agreement for the sale and purchase of a portion of immovable property known as Number 12 Le Roux Drive, Harare ('the property'). The sale was facilitated by an estate agents company known as Property Plus Realtors (Private) Limited which was acting on behalf of the appellant.

The agreement of sale stipulated, that, the respondent would pay the purchase price of US$75,000 by paying a deposit of US$15,000 upon agreement. The balance of US$60,000 was to be paid at the rate of US$5,000 per month for 12 consecutive months with interest on the purchase price being calculated at the rate of 1 per cent per month. The full purchase price was to be paid on or before 30 August 2010.

The parties further agreed, that, the respondent would take immediate occupation of the property upon payment of the deposit.

The appellant alleged, that, the respondent failed to pay the full instalments by the due date, and, as such, breached the verbal agreement of sale. It was the appellant's evidence, that, the respondent failed to pay the sum of US$39,100 which comprised the principal debt and interest.

The appellant further stated, that, the respondent acknowledged, in writing, on 30 March 2017, that he had not paid the full purchase price.

On 17 May 2017, the appellant served the respondent with a notice to rectify its breach within 30 days. Despite the notice, the respondent failed or neglected to comply. As a result of the respondent's breach, the appellant cancelled the agreement of sale on 23 June 2017 and demanded vacant possession of the property.

Following the issuance of summons, the respondent entered an appearance to defend.

In his plea, he averred, that, the agreed purchase price for the property was US$68,000 and that he was to pay a deposit of US$15,000, and, thereafter, instalments of US$5,000 until the balance was paid in full.

The respondent further averred, that, he paid the deposit and a further US$37,000 and that the remaining balance, as at 1 May 2010, was US$16,000.

The respondent averred, that, he failed to continue with the payments as the appellant refused to come up with a written Agreement of Sale which would enable him to obtain a mortgage loan to pay for the outstanding balance for the property.

The respondent further averred, that, both parties, as a compromise to their verbal agreement, agreed, that, upon payment of US$300 by the respondent, the appellant would draft the Agreement of Sale.

The respondent paid the US$300 but no agreement was drafted.

The respondent further stated, that, the appellant, without his knowledge and consent, sought to subdivide the property.

In reaction to the subdivision, the respondent, through his legal practitioners, wrote a letter, on 30 March 2017, to the appellant, informing it to refrain from the illegal sub-division and for it to provide a written agreement of sale.

The respondent stated, that, the appellant did not comply with his notice.

The appellant decided to give him notice to rectify a non-existent breach of the verbal agreement. It was the respondent's averment that the notice by the appellant was a legal nullity and of no force and effect.

The respondent thus denied the appellant's entire claim, and, consequently, filed a counter-claim against the appellant seeking the following order:

“(a) An interdict restraining the Plaintiff from subdividing the property known as Stand 10830 Salisbury Township of Salisbury Township Lands Held Under Deed of Transfer Number 11900/2005.

(b) An order that the Plaintiff take all necessary steps to prepare an agreement of sale within 10 days of the granting of judgment reflecting the terms of the verbal agreement as set out in paragraphs 16 and 17 of this Declaration including the amount paid as of date and the balance outstanding in the sum of US$16,000.

(c) Costs of suit on a Legal Practitioner and client scale.”

In its plea to the counterclaim, the appellant maintained, that, the agreement between the parties was for the sale and purchase of a portion of the property.

The appellant further denied the payments and outstanding balance which the respondent purportedly made to it.

The appellant also denied that it had an obligation to draw up an Agreement of Sale.

It was the appellant's argument, that, the agreement of sale did not have a term which provided that the balance of the purchase price would be paid through a Bank loan.

Following a pre-trial conference before a Judge, in chambers, the parties entered into a joint pretrial conference minute which read as follows:

“ISSUES

1. What were the initial and later compromise terms of the agreement?

2. Whether or not the defendant breached any of the terms of the agreement.

3. Whether or not the plaintiff should not be interdicted from subdividing the property?

ONUS

4. On both parties in respect of issue number 1.

5. On the plaintiff in respect of issue 2.

6. On defendant in respect of issue 3.

ADMISSIONS

7. Plaintiff admits to receiving US$300 for the purposes of drafting an agreement of sale.

8. Defendant is presently in possession of the property.”

EVIDENCE BEFORE THE COURT A QUO

At the trial, the appellant led evidence through a single witness, one Brian Machengo (Machengo), a Sales Manager at Property Plus Realtors (Private) Limited.

Brian Machengo testified, that, the advertisement of the property was published through The Herald newspaper. It did not indicate that only a portion of the property was being sold. It simply made reference to 'one acre of panoramic views'.

He further stated, that, he was given a mandate by the appellant to sell the property for US$90,000 but published the advertisement with an offer price of $70,000.

His mandate was to sell land with a residential property measuring plus or minus 1,500 square meters. It was part of the whole property that comprised 12 Le Roux Drive.

The respondent was one of the persons who responded to the advertisement and made an offer to purchase the property for US$68,000. This offer was rejected by the appellant.

He could, however, not explain how the purchase price changed from US$90,000 to US$70,000, and, subsequently, to US$75,0000. It was his evidence, that, as the agreement was verbal there was no paper trail explaining what had taken place.

Brian Machengo further accepted, that, at the time when the sale was concluded, there was no subdivision permit as the permit was only granted on 10 February 2015.

He further accepted, that, the respondent paid about US$52,000 towards the purchase of the property and that he paid US$300 for the drafting of an Agreement of Sale.

He confirmed that the respondent filled in an offer to purchase form.

He also highlighted, that, the form did not make any reference to the respondent accessing mortgage finance to pay off the purchase price.

He denied that he was obliged to give the respondent a written agreement.

He further stated, that, the appellant was within his rights to sub-divide the property as he had only sold a portion of it to the respondent.

The respondent testified on his own behalf and led evidence from two other witnesses.

The respondent testified, that, he saw an advert for the property which had a purchase price of US$70,000. He made an offer for US$68,000 on an Offer Form provided to him by Brian Machengo.

He indicated that it was never mentioned to him that only a portion of the property was being sold and that from the description of the property on the advertisement he believed he was purchasing the whole property.

He denied that the purchase price of the property was agreed as US$75,000 as alleged by the appellant.

The respondent admitted that he had not paid the full purchase price for the property.

He attributed his failure to meet the terms of the agreement to the fact that his company was facing economic hardships and that he failed to acquire a Bank loan as the appellant had refused to give him a written Agreement of Sale.

He explained, that, since he failed to get a written agreement he was unable to obtain a loan to offset the outstanding balance.

The respondent testified, that, in 2010, he met Mr Van Hoogstraten, whom he believed to be the seller, for the first time, who informed him that he never signs written contracts in his business dealings.

He then formed the opinion that he was dealing with “crookey, dodgy, people” and decided not to pay the balance of the purchase price.

He testified, that, he later received a report that there were people subdividing the property.

He wrote to the appellant protesting the subdivision as he believed he had purchased the whole property. When he did not get a response, he made a report to the police. Following the report to the police, he then received a letter informing him that he was in breach of the agreement.

The respondent denied that he owed the sum of US$58,000 as damages for rentals calculated at the rate of US$700 per month.

In 2014, he again met Mr Van Hoogstraten, and, this time, he agreed to have a written Agreement of Sale, provided the money for drafting such agreement was paid. It was on this basis that he paid the $300 for drafting the Agreement of Sale.

However, in spite of paying the $300, no agreement was drafted by the appellant.

The evidence of Patrick Mapfumo, the respondent's second witness, was admitted with the consent of both parties.

Patrick Mapfumo's evidence, as stated in the respondent's summary of evidence, confirmed, that, in 2014, the witness and his wife had gone with the respondent to see one Mr. Nicholas Van Hoogstraten along Mazowe Road. Their party also included Brian Machengo. It was Patrick Mapfumo's evidence, that, at the meeting, the parties agreed that an Agreement of Sale be drawn up upon payment of US$300 (being made) by the respondent for drafting the agreement.

The respondent's third witness was Patrick Nyamugama, a registered estate agent, who appeared to give expert evidence in support of the respondent's case.

Patrick Nyamugama testified, that, around the year 2009 the property in dispute would have been valued at about US$70,000 – US$80,000. He also stated, that, if the property was to be subdivided, the value of the property would be about US$50,000.

At the conclusion of the trial, the court a quo found, that, the respondent purchased the entire property and not a subdivision as alleged by the appellant.

The court disbelieved the evidence of Brian Machengo and found him to be an evasive witness. The court also found that Brian Machengo made a number of concessions in favor of the respondent.

The court a quo thus found that the appellant had failed to prove its claim.

It noted, that, there were gaps in the evidence given by Brian Machengo and that the appellant ought to have called its directors.

The court further noted, that, as the subdivision of the property had already been granted it could not make any order interdicting the operation of the subdivision permit.

However, the court found, that, the subdivision permit number SD/CR/15/14, dated February 2015, was null and void as it had been granted six years after the whole property had been sold to the respondent.

In the result, the court made the following order:

“1. The plaintiff's claim is dismissed.

2. The defendant's counter-claim is granted.

3. The plaintiff shall take all the necessary steps to prepare an Agreement of Sale within ten (10) days of the handing down of this judgment reflecting the terms of the verbal agreement entered into on 30 August 2009 including the following:

3.1 That plaintiff sold to the defendant certain piece of land situate in the district of Salisbury called Stand 10830 Salisbury Township of Salisbury Township Lands measuring 3,033 square metres held under Deed of Transfer number 11900/2005 in favour of Divvyland Investments (Private) Limited.

3.2 That the agreed purchase price for the immovable property was the sum of US$68,000 (sixty eight thousand United States dollars).

3.3 That the defendant paid a deposit in the sum of US$15,000 (fifteen thousand United States dollars) on 04 September 2009.

3.4 That the defendant has paid a total of US$56,900 (fifty six thousand nine hundred United States dollars) to date towards liquidating the purchase price inclusive of interest.

3.5 That the defendant shall pay the outstanding balance of $14,384-01 (fourteen thousand three hundred and eighty four United States dollars and one cent) through a Bank loan.

4. The plaintiff shall pay the defendant's costs of suit, in respect of both the main claim and the counter-claim, on the legal practitioner and client scale.”

Aggrieved by the judgment of the court a quo, the appellant noted the present appeal on the following grounds:

1. The court a quo erred and misdirected itself in granting relief not sought by the parties, and, in consequence, by creating a non-existing contract for the parties.

2. The court a quo erred and misdirected itself in setting aside a valid subdivision permit when no such relief had been sought before it.

3. The court a quo erred and misdirected itself in failing to find, that, once the respondent was in willful default/breach for a period in excess of five years, and contrary to the agreement, the appellant was entitled to cancellation of the agreement and to the consequential relief of eviction and holding over damages.

4. Furthermore, the court a quo erred in its failure to find, that, the absence of a written agreement is no bar to payment of the purchase price and that the respondent was not absolved from performing his side of the agreement as he could still tender into court or have made payment as he had previously done.

5. The court a quo further erred and misdirected itself in failing to find, that, an advertisement is an invitation to treat and does not create a binding contract. Furthermore, it misdirected itself in failing to find, per the evidence led, that, the respondent's offer had not been accepted by the appellant.

6. The court a quo further erred in imposing a contractual obligation of loan/mortgage financing which did not form part of the agreement between the parties and which did not exist at the time of contracting as per the evidence led.

7. The court a quo further erred and misdirected itself in failing to find, that, the admissions made by the respondent entitled the appellant to succeed on its case and have the counterclaim dismissed. These were:

(a) The property is registered in the name of the appellant who still possesses all rights of ownership in terms of the title deed.

(b) The respondent had not paid the full purchase price, whether for the half portion or for the full portion. It doesn't matter which portion he has not paid and persists in breach beyond the contracted time period (sic).

(c) The appellant, like any other party, had a right to cancel the agreement and claim eviction and holding over damages consequent to cancellation.

8. The court a quo further erred and misdirected itself in disregarding the uncontroverted evidence that the land in issue was a half-acre portion as opposed to a full acre, regard being had to the mandate to sell letter and to the advertisement placed by the appellant.

9. The court a quo further erred and misdirected itself in failing to find, that, the agreement to sell a portion of land, absent a subdivision permit, was, in any event, unlawful and could consequently not be enforced.

The appellant's grounds of appeal, in my view, raise the following issues for determination:

1. Whether or not the court a quo granted relief not sought by either of the parties.

2. Whether or not the court a quo erred in dismissing the appellant's claim.

3. Whether or not the court a quo erred in granting the respondent's counterclaim.

I will proceed to deal with these issues seriatim.

APPELLANTS SUBMISSIONS BEFORE THIS COURT

Counsel for the appellant argued, that, the court a quo fell into error when it granted relief which was not sought by either of the parties.

It was counsel's submission, that, the court a quo's finding, that the subdivision permit was null and void, was made in error as the issue of its legal effect was never an issue for determination before the court.

Counsel argued, that, the court found that it could not interdict the operation of the sub-division permit as the permit had already been granted and yet the court a quo went on to grant the respondent's counterclaim - including the part which sought to interdict the appellant from subdividing the property.

It was also counsel's submission, that, paragraph 3 of the order granted by the court a quo was made in error as the court enforced a non-existent agreement made on 30 August 2009 when the verbal agreement was in September 2009.

The appellant submitted, that, the court a quo erred in granting a computation of figures which were to be included in the Agreement of Sale. In support of the point, counsel argued, that, the court misdirected itself when it ordered that the respondent was to pay US$14,384=01 through a Bank loan when the respondent, by his own admission during trial, maintained that he owed US$16,000.

In relation to the issue of whether or not the respondent proved his counterclaim, counsel for the appellant argued, that, the respondent, by his own admission, stated, that, in a period of over nine years he failed to pay the full purchase price of the property. He thus had no valid claim to the property which remained under the ownership and title of the appellant.

It was the appellant's further argument, that, the respondent's claim, that he was to obtain a Bank loan to pay off the outstanding amount, was never agreed to as between the parties and therefore the court a quo should not have granted an order allowing the respondent to pay the outstanding balance through a Bank loan.

Counsel concluded by submitting, that, it was a basic principle of law, that, where a person occupies another person's property he or she must pay rent.

Counsel thus argued, that, the respondent, having been in occupation of the property for over nine years without being able to satisfy the purchase price, was liable to pay the appellant damages of US$58,000 and holding over damages of US$700 per month calculated from 1 June 2017 to the date of eviction.

RESPONDENT'S SUBMISSIONS BEFORE THIS COURT

Per contra, counsel for the respondent submitted, that, the court a quo did not misdirect itself in its findings as it dealt with all the issues which were raised in the pre-trial conference minutes.

Counsel submitted, that, the court had to resolve whether there was a breach by the respondent.

Counsel further submitted, that, the events that led to the appellant issuing summons only arose after the respondent wrote to it informing it to stop the subdivision of the property as this was a breach of the agreement of sale.

It was counsel's argument, that, the court correctly believed the respondent's version of how the purchase price was paid. He also submitted, that, the respondent made efforts to pay off the outstanding balance by paying the US$300 for a written contract which would help him secure a loan.

The appellant's witness, Brian Machengo, made concessions during the trial which destroyed the appellant's claim. Counsel thus argued, that, the appellant's case was full of improbabilities and inconsistencies.

He therefore submitted, that, the judgment of the court a quo was unassailable and prayed for the dismissal of the appeal.

APPLICATION OF THE LAW

Whether or not the court a quo granted relief not sought by either of the parties

Before the court a quo, the appellant sought an order for the eviction of the respondent and all those claiming occupation through him, damages in the sum of US$58,000, holding over damages at the rate of US$700 per month calculated from 1 June 2017 to the date of eviction, and costs of suit on a higher scale.

The respondent, in his counter claim, sought an interdict restraining the appellant from subdividing the property and an order that the appellant take all necessary steps to prepare a written Agreement of Sale which would reflect the terms of the verbal contract and the outstanding balance of US$16,000.

The appellant's claim was dismissed by the court a quo and the respondent's counterclaim granted.

The question of whether or not the court granted competent relief sought by either of the parties shall thus be determined with regard to the order granted in favour of the respondent only.

The court a quo found, that, it could not grant an interdict against the subdivision permit as the permit had already been issued. The court also found, that, the subdivision permit was null and void.

The court, upon making this finding, thereafter proceeded to grant the respondent's counterclaim in its entirety.

In my view, this was the first error made by the court a quo.

As if this was not enough, the court went ahead and ordered that the appellant to facilitate the writing of an agreement of sale between the parties.

The court a quo laid out the terms to be included in the Agreement of Sale.

A close reading of the judgment of the court shows a marked discrepancy between what was prayed for by the respondent and what was eventually granted.

(i) Firstly, it should be noted, that, it is an accepted principle of our law that it is not open to a court to rewrite terms of a contract for the parties. A court cannot infer or imply terms of a contract between parties but must simply interpret the terms of the contract in the event that a dispute arises.

In Magodora & Ors v Care International Zimbabwe 2014 (1) ZLR 397 (S)…, it was reiterated by the Court that:

“In principle, it is not open to the courts to re-write a contract entered into between the parties or to excuse any of them from the consequences of the contract that they have freely and voluntarily accepted…,.”

Further, in Wells v Southern African Alumenite Co. 1927 AD 69…, INNES J expressed that:

“If there is one thing which, more than another, public policy requires, it is that men of full age and competent understanding shall have the utmost liberty of contracting, and that their contracts, when entered into freely and voluntarily, shall be held sacred and shall be enforced by the courts.”

Paragraph 3 of the order of the court a quo clearly shows, that, the court fell into error in failing to appreciate the sacrosanct nature of the contract which existed between the parties.

Even if it was clear that the agreement between the parties was marred by different versions of events, the court could not dictate the terms of the agreement as the court was not party to the agreement nor was it present when the verbal agreement was concluded.

To further compound the error on the order, the court wrongly computed the dates when the agreement was made. Both parties agreed that the agreement was made in September 2009 and not 30 August 2009 as stated by the court.

The court went on to compute figures for the parties, which figures were disputed by the appellant and which were equally not clearly proved by the respondent.

The court a quo ordered that the agreement be written to reflect that the respondent paid a deposit of US$15,000 on 4 September 2009; that he paid a total of US$56,900 to date towards the purchase price plus interest; and that the outstanding balance to be paid by the respondent was US$14,384=01 to be paid through a Bank loan.

The court, however, failed to take cognizance of the fact, that, in making his counterclaim, the respondent stated the terms of the contract between the parties.

Under paragraph 17 of his claim, he averred, that, he paid a deposit of US$15,000; paid instalments of US$37,000 for a period between 30 September 2009 to 1 May 2010; and that a balance of US$16,000 remained.

The court a quo could not draft a new contract for the parties and dictate new terms.

The terms in the order were not the terms admitted and set out by the respondent in making the counter claim.

The court did not give justification for arriving at the amount it stated as US$56,900 (being the purchase price and interest) as the respondent himself never made reference to the amount of interest he paid in making the purchase price.

The court further arrived at the outstanding amount of US$14,384=01 without showing how such amount was calculated and yet the respondent had made an admission that the outstanding balance was US$16,000.

It can thus be deduced that the court misdirected itself by purporting to lay out terms of an agreement it was not a party to.

(ii) Secondly, the court a quo granted the respondent's counterclaim despite finding that it could not grant the interdict sought because the subdivision permit had already been granted. The court also went on to find, that, the subdivision permit was null and void.

A reading of the record shows that neither of the parties sought a declaration on the legality of the subdivision permit. Further, the record shows that the respondent did not motivate his claim by satisfying the requirements for an interdict - but the court still made a finding on the interdict sought.

A court must determine a matter based on the papers and evidence placed before it by the parties. It cannot go on a frolic of its own. This principle was stated in Nzara and Ors v Kashumba N.O. and Ors SC18-18…, wherein the Court held that:

“The function of a court is to determine the dispute placed before it by the parties through their pleadings, evidence, and submissions. The pleadings include the prayers of the parties through which they seek specified orders from the court.

This position has become settled in our law.

Each party places before the court a prayer he or she wants the court to grant in its favour. The Rules of Court require that such an order be specified in the prayer and the draft order.

These requirements of procedural law seek to ensure that the court is merely determining issues placed before it by the parties and not going on a frolic of its own. The court must always be seen to be impartial and applying the law to facts presented to it by the parties in determining the parties issues.”

Also, in Proton Bakery (Pvt) Ltd v Takaendesa 2005 (1) ZLR 60 (S)…, GWAUNZA JA…, noted the following:

“The appellant argues, in light of all this, that the action of the court a quo, in reaching a material decision on its own, amounted to gross irregularity justifying interference by this court on the principles that have now become trite.

I am, for the reasons outlined below, persuaded by this argument….,.

The misdirection, on the part of the court a quo, is left in no doubt. It is, in my view, so serious as to leave this Court with no option but to interfere with the determination of the lower court.”

The court a quo thus erred and misdirected itself by mero motu granting relief which had not been sought by the respondent in his counterclaim. Such misdirection warrants interference by this Court as the court clearly went on a frolic of its own.

SC143-21 : HAPPISON MUCHECHETERE vs ZIMBABWE BROADCASTING CORPORATION (PVT) LTD and RETIRED JUSTICE JAMES DEVITTE N.O. and GIBSON MUNYORO
Ruled By: GWAUNZA DCJ, UCHENA JA and MAKONI JA

This is an appeal against the entire judgment of the Labour Court handed down on 10 March 2017. The Labour Court dismissed the appellant's application for review challenging the disciplinary proceedings that led to his dismissal from the first respondent's employment.There were no appearances for the second and third respondents.FACTUAL ...

This is an appeal against the entire judgment of the Labour Court handed down on 10 March 2017. The Labour Court dismissed the appellant's application for review challenging the disciplinary proceedings that led to his dismissal from the first respondent's employment.

There were no appearances for the second and third respondents.

FACTUAL BACKGROUND

The appellant was employed by the first respondent as its Chief Executive Officer (hereinafter “CEO”) between the period 2009 until the dissolution of its Board in 2013.

The appellant had been employed on a contractual basis with his subsisting contract having been renewed in May 2011.

On 14 November 2013, the then Acting Secretary for Information, Media and Broadcasting Services, wrote to the appellant placing him on leave with full pay until further notice. The letter stated, that, the appellant was placed on leave due to the exacting challenges faced by the first respondent which required urgent intervention through a full audit of its affairs. The appellant was barred from visiting the first respondent's premises or issuing any instructions to its staff.

On 30 January 2014, the appellant was notified of the allegations of misconduct against him which were said to have been unearthed during the audit. The initial decision to place the appellant on paid leave was rescinded and substituted with leave without pay pending determination of the allegations against him.

On 18 November 2014, the appellant was duly served with a notice by the first respondent's legal representatives, to attend a disciplinary hearing to be presided over by the second respondent.

The appellant faced 32 charges of misconduct which were contained in a schedule attached to the notice of the hearing.

When the disciplinary proceedings began, the first respondent abandoned 21 of the charges against the appellant, leaving only 11.

At the hearing, the appellant argued, that, it was not competent for the first respondent to undertake disciplinary proceedings based on allegations flowing from an expired employment contract.

This argument was based on his interpretation of the Labour (National Employment Code of Conduct) Regulations 2006 (hereinafter “SI15/2006”).

Counsel for the appellant contended, that, for a person to be properly charged with misconduct, he or she must still be an employee in terms of a subsisting employment contract at both the time of the commission of the offence and institution of misconduct proceedings.

He further submitted, that, what were now termed acts of misconduct had been properly approved by the first respondent's Board.

Counsel further submitted, that, the integrity of the disciplinary proceedings was further thrown into doubt by the direct role played by the Minister of Information Media and Broadcasting Services, who initiated his suspension.

The first respondent disputed the appellant's contention that it sought to improperly charge him in terms of an expired employment contract.

It averred, that, the parties were engaged in a continuous employment relationship which was highlighted by the renewal of the appellant's contract in May 2011. Counsel for the first respondent placed reliance on the Lesotho case of Limkokwing University of Creative Technology Lesotho (Pty) Ltd v Mosia Nkoko and Anor LC/REV 58/12, whose import was that an employment relationship becomes continuous where the contract of employment is renewed immediately upon the expiry of a preceding one.

Accordingly, he argued, since the acts of misconduct in question were committed during the subsistence of an employment relationship between the parties, the appellant was properly charged.

The disciplinary hearing, chaired by the second respondent, found the appellant guilty of misconduct in respect of 7 of the 11 charges levelled against him. These were counts 1, 2, 3, 6, 7, 21 and 23 on the charge sheet.

It is not in dispute that the second respondent did not pronounce the verdict of dismissal against the appellant. This was, rather, done by the first respondent.

Dissatisfied with the disciplinary hearing's decision, the appellant filed an application for review in the Labour Court.

The basis of the application was that there was gross irregularity, gross irrationality, and illegality in the manner that the disciplinary proceedings were conducted and the decision reached.

In particular, the appellant alleged gross irregularity and irrationality, or, alternatively, illegality based on its review grounds 1.1 – 1.4. He went on to allege gross irrationality, and, alternatively, illegality and procedural irregularity on the basis of a second set of review grounds, that is, grounds 3 - 3.5.

While the manner the review grounds are formulated is somewhat confusing, it is apparent that the appellant effectively submitted two sets of review grounds, each with its own alternative grounds for review.

The court a quo did not advert to the second set of review grounds (nor the alternative thereof), but, determined the matter on the basis of the first set which alleged irregularity in the proceedings as follows:

1. A number of charges levelled against the appellant related to alleged acts of misconduct arising from a contract of employment which had expired;

2. The first respondent, at all material times, either directed or approved all acts of the appellant which were then later deemed as misconduct on his part;

3. The proceedings were initiated by the Minister of Information Media and Broadcasting Services who was not a party to the contract of employment; and

4. The first respondent improperly imposed a penalty before the disciplinary proceedings were completed, contrary to SI15 of 2006 and section 12B(4) of the Labour Act [Chapter 28:01].

The appellant consequently sought nullification of the disciplinary proceedings and reinstatement as an employee of the first respondent.

The court a quo dismissed the appellant's application for review.

It held, that, the acts of misconduct in question were committed during the subsistence of the parties employment relationship.

The court found, that, the appellant did not adduce any evidence to disprove the claim that he enjoyed a continuous employment relationship with the first respondent during the period 2009 to 2013. It stated, that, the renewal of the contract, in May 2011, did not vary the essential terms of his employment as he remained both the Principal Accounting Officer and Chief Executive Officer (CEO) of the first respondent.

For this finding, the court cited an excerpt from the case of Van Der Post v Twyfelhock Diamond Prospecting Syndicate (1903) 20 SC 213 to the effect, that, where several or a series of contracts between the same parties are concluded to effect a single purpose, they should be treated as one contractual document.

The court a quo also relied on Air Zimbabwe v Chiku Mensa & Anor SC89-10 as an authority supporting its decision to uphold the outcome of the disciplinary proceedings.

It was stated in that case, that, a person guilty of misconduct should escape the consequences of his misdeeds because he is innocent, not because of a failure to conduct proceedings properly by another employee.

In relation to the appellant's third ground of review, the court held, that, the disciplinary proceedings conducted by the second respondent were not vitiated by virtue of the Minister of Information and Media Broadcasting (and not the first respondent, his former employer) having authored the letter of suspension. The court took the view, that, the absence of a letter of suspension was, in any case, not fatal to the conduct of disciplinary proceedings. It cited in this respect the following sentiments of the court in Shumbayaonda v Ministry of Justice Legal and Parliamentary Affairs and Anor SC11-14:

“…,. Suspension is not a prerequisite to the holding of disciplinary proceedings, and, a disciplinary hearing does not have to take place during the period of suspension….,.”

Finally, in so far as the final ground of review was concerned, the court a quo quoted the part of the second respondent's written decision of 15 April 2015, that specifically convicted the appellant of acts of misconduct 1,2,3, 6,7, 21 and 23. The excerpt also indicated that the second respondent had dismissed some preliminary issues raised on behalf of the appellant. A chronological analysis of the events that then ensued satisfied the court a quo, that, the first respondent had not 'prematurely concluded' the disciplinary proceedings, as alleged by the appellant.

In the final result, the court a quo reached the decision that the disciplinary proceedings against the appellant had not been irregularly conducted.

Aggrieved by the judgment of the court a quo, the appellant approached this Court on appeal. He prays that the decision of the court a quo be set aside and substituted with an order granting the application for review and setting aside both the disciplinary proceedings and his dismissal. His grounds of appeal are set out as follows:

1. The court a quo erred and misdirected itself in law in holding, that, under the Labour National Employment Code of Conduct Regulations, 2006, S.I.15 of 2006, the appellant could be charged with, and convicted of alleged acts of misconduct arising from an expired contract.

2. The court a quo erred in law in failing to find that the first respondent, through its various agents, either directed or approved all the acts of the appellant which were then later construed as misconduct. The court a quo ought to have found, that, the first respondent could not regard, as misconduct, the actions it either directed or approved.

3. The court a quo erred and misdirected itself in law in failing to hold, that, it was not competent for the first respondent to impose the penalty of dismissal before its own appointed disciplinary authority had made a determination on the appropriate penalty.

4. The court a quo fell into an error of law in failing to find that the appellant's conviction was contrary to the evidence that was placed before the disciplinary authority....,.

Whether or not the court a quo erred at law by holding that it was competent for the first respondent to dismiss the appellant before the Disciplinary Committee had made its determination

The appellant submitted, that, the first respondent pronounced the penalty of dismissal improperly, having done so before the disciplinary committee had made its determination on that issue.

In the appellant's heads of argument, and in oral submissions before the court, counsel for the appellant sought to expand the scope of this ground of appeal by impugning the determination and pronouncement of the penalty by the first respondent rather than the disciplinary authority. Counsel for the appellant contended, that, he was challenging both the timing of the penalty and the medium by which the penalty was determined and pronounced.

He submitted that there was no distinction between the two....,.

A quo, the appellant's ground of review, concerning the timing of the pronouncement of the penalty of dismissal, read as follows:

“The first respondent arrived at a decision on the penalty before the disciplinary proceedings were completed, in contravention of SI15/2006 as well as section 12B of the Labour Act (Chapter 28:01).”

The appellant, in his third ground of appeal in casu, elaborated on this argument by stressing that the first respondent had imposed the penalty of dismissal before its own appointed disciplinary authority had made a determination on the appropriate penalty.

The court a quo, as already indicated, made the finding, that, the first respondent had not 'prematurely concluded' the disciplinary proceedings when it pronounced the penalty of dismissal. The court stated as follows:

“The applicant filed his closing submissions (actually, submissions in mitigation) on 8 May 2015. On 19 May 2015 the submissions were considered by the Board. It was then resolved that the contract should be terminated with effect from 30 January 2014. The decision was communicated on 21 July 2015 through a letter dated 17 July 2015. It is therefore not correct to say the Board prematurely concluded the disciplinary proceedings….,.”

This finding by the court a quo echoed the first respondent's response to the allegation by the applicant in his founding affidavit that the former had arrived at a verdict before the disciplinary authority had done so.

The first respondent responded as follows in its opposing affidavit:

“This is denied. Retired Judge James Devittie handed down his determination on 22 April 2015.

The applicant filed his submissions in mitigation on 8 May 2015.

Thereafter, on Tuesday 19 May 2015, the ZBC Board of Directors sat and considered the nature of the offences with which applicant had been found guilty, and the submissions in mitigation filed by applicant. The ZBC Board of Directors resolved that a penalty of dismissal met the justice of the case.

Applicant's conduct, particularly acts of theft, go to the root of the employer-employee relationship.

The penalty of dismissal was handed down subsequent to the completion of the disciplinary hearing and after considering the judgment by Justice Devittie and whether there were any mitigatory circumstances….,.”

The above excerpts capture a factual conspectus which is not disputed by the parties.

The excerpts also make it abundantly clear that the first respondent, and the court a quo, subscribed to the view, that, the disciplinary proceedings were 'completed' upon the pronouncement of the guilty verdict by the disciplinary authority.

That being the case, according to that view, the first respondent, through its Board, was at large to thereafter step in and consider the appellant's submissions in mitigation and other factors, determine, and pronounce what it considered to be the appropriate penalty.

In addition to the timing of the event, the appellant takes issue with this conflation of the roles played by the first respondent and the hearing authority in a situation where the latter ought to have, itself, completed the proceedings.

It is contended, that, the proceedings could only have properly ended with the disciplinary authority hearing the parties submissions in aggravation and mitigation, and, thereafter, considering and pronouncing the appropriate penalty.

Counsel for the appellant contended, in this respect, that, the first respondent 'usurped' the responsibility of its own disciplinary authority and 'completed' the disciplinary proceedings itself.

He asserted, further, as follows in the appellant's heads of argument:

“A proper reading of SI15/2006, in the light of the lawmaker, shows, that, an employer who has appointed a disciplinary authority must live with its decision. It is unlawful for the employer to split the disciplinary process into two phases, namely, conviction and sentence, with the disciplinary authority handling the conviction phase while the employer takes over at the sentencing stage.”

The court finds there is merit in the appellant's submissions as outlined above.

While it is inelegantly formulated, the import of the disciplinary procedure laid out in section 6 of the Labour (National Employment Code of Conduct) Regulations, S.I.15/2006 is that disciplinary proceedings against an employee facing misconduct charges are conducted by the employer or a disciplinary authority appointed by it.

The tone of section 6(4)(b) of the Labour (National Employment Code of Conduct) Regulations, SI15 of 2006 makes it clear, that, where a disciplinary authority is appointed, it is expected to conduct the hearing as set out therein, including hearing submissions in mitigation, as well as determining and imposing the 'ultimate' penalty.

The hearing, in other words, is only completed after the 'ultimate' penalty is imposed.

The impression created in the end is that the disciplinary authority, once it starts the hearings, enjoys a great measure of autonomy in the conduct of the hearing until it has completed the process.

Considerations of fairness and the interests of justice in disciplinary proceedings support this procedural route.

It is also a route that is emphasized in various authorities on the subject.

In a section of the book 'Workplace Law' 11th Ed…., by the learned author JOHN GROGAN, that addresses the requirements of fair disciplinary hearing, the following is stated:

“As in criminal proceedings, the decision of the presiding officer should be made in two distinct stages. First, the guilt of the accused employee should be determined on the evidence, without reference to the employee's disciplinary record….,. Secondly, and after the verdict is decided, a penalty must be determined which is appropriate to the offence and the particular employee….,.”…,.

The above caption underlines three procedural issues:

(i) Firstly, the decision, must be that of the presiding officer.

(ii) Secondly, the decision consists of two parts - the verdict and the penalty.

(iii) Thirdly, and to that extent, a 'decision' that ends with just the verdict would not be complete.

What should and generally happens after a guilty verdict is pronounced, is aptly articulated as follows in what is termed 'corporate disciplinary hearing templates for misconduct' by the learned author MICHAEL OPPERMAN in his book 'A Practical Guide to Disciplinary Hearings'…,:

“Stage 5 – Mitigation, Aggravation and Sanction

1. If the employee is found guilty, the employer may formulate arguments in aggravation and the employee may advance arguments in mitigation of the offence, for purposes of the sanction to be imposed;

2. This process will be in the form of a mini-hearing and is removed from the facts of the main hearing;

3. The (disciplinary) panel will then adjourn once more and consider a sanction befitting the verdict and the arguments in aggravation and mitigation.”…,.

It would follow from what is set out above, that, after it pronounces a verdict of guilty, only the disciplinary authority is mandated to move on to the part of the proceedings that relates to mitigation, aggravation, and sanction.

Accordingly, the assumption of this mandate by someone, who, as happened in casu, did not preside over the proceedings nor participate as a member of the disciplinary panel, would be highly irregular.

That the person happened to have been the employer of the appellant, and, therefore, an interested party in the proceedings, could only have served to compound the irregularity.

The first respondent, as the employer, chose to appoint the disciplinary authority that presided over the proceedings. All that it had to do, after that, was to let the disciplinary authority conclude its work by imposing the penalty that it would have adjudged appropriate under the circumstances.

Only thereafter could the first respondent have properly taken the matter on and proceeded to determine the appellant's fate.

The evidence on record shows, that, the appellant expected the convening, by the hearing officer, of the 'mini-hearing' on 'Mitigation, Aggravation, and Sanction' that is listed by the authority cited above, as the final stage in disciplinary proceedings.

The chairperson of the disciplinary hearing, on or about 25 June 2015 received a letter to this effect from the appellant's legal practitioners, Messrs Mawire JT & Associates:

“Re: ZBC (Pvt) Ltd vs Happison Muchechetere: Mitigation Hearing

We refer to the above matter in which you availed your determination on the verdict on 22 April 2015. We filed our written mitigatory submissions on 7 May 2015. We now enquire as to when you intend to invite the parties for a mitigation hearing. Our client is now anxious to have the matter completed.”…,.

While there is no record of any response to the letter, by the chairperson of the disciplinary authority, the letter terminating the appellant's employment removes any doubt as to what then ensued.

As already indicated, the letter advised the appellant, that, following the verdict of guilty pronounced by the disciplinary authority, the full Board of the first respondent, on 19 May 2015, sat to consider the submissions made on his behalf in mitigation and resolved that termination of his contract of employment would 'meet the justice of the case.'

The first respondent, through its Board, as argued for the appellant, clearly jumped the gun, as it were, and assumed a responsibility that was properly meant to be discharged by the hearing authority.

In that way, the first respondent interfered with ongoing proceedings and irregularly brought them to an end.

This clearly cast into serious doubt the fairness of the proceedings post the pronouncement of the guilty verdict by the disciplinary authority.

It does not escape notice that the Board, having taken over a quasi-judicial role that it should not have done after the parties had filed submissions in aggravation and mitigation, is said to have related only to the appellant's submissions in mitigation and not the respondent's own submissions in aggravation.

This circumstance ran counter to the accepted procedure where an independent tribunal weighs and balances the mitigating and aggravating features of the offence in question against each other, before reaching and pronouncing an appropriate penalty.

The appellant had the right to have his submissions in mitigation considered and assessed by the same authority that had presided over the disciplinary proceedings, before pronouncement, by it, of the penalty. By the same token, the first respondent should have allowed its own submissions in aggravation to be heard and assessed by the same hearing authority.

Although not argued, the point must also be made, that, section 69 of the Constitution of Zimbabwe Amendment (No.20) Act 2013, guarantees the right of a litigant to a fair hearing before an independent and impartial court or tribunal.

The first respondent was a party to the proceedings and had an interest in seeing the appellant dismissed from his employment. Having taken over a crucial part of the disciplinary process from the independent hearing authority, the court finds, that, the first respondent, through its Board, crucially undermined the fairness of the sentencing part of the disciplinary proceedings. This could only have been to the detriment of the appellant.

Conduct that conjures the much-condemned circumstance, where someone is seen to act as both a prosecutor and judge in the same cause, flies in the face of the time-honoured adage 'justice must not only be done, but must be seen to be done.'

The court therefore finds, that, in all respects, the conduct of the Board, as outlined, constituted gross irregularity whose effect was to render the part of the disciplinary proceedings that pertained to 'mitigation, aggravation, and sanction' a nullity.

The conduct was without any legal basis, and therefore surpassed the bounds of what would ordinarily be regarded as a procedural faux pax meriting disregard or condonation by a tribunal or court in the determination of labour matters.

The court a quo accordingly erred in its finding that the following excerpt was applicable:

“…, a person guilty of misconduct should not escape the consequences of his misdeeds because of a failure to conduct proceedings properly by another employee. He should escape such consequences because he is innocent: Air Zimbabwe v Chiku Mensa & Anor SC89-10.”

The disciplinary authority in casu was prevented from conducting 'the proceedings properly' by the employer, who, acting on some undefined basis, stepped in midstream of the disciplinary proceedings, and purported to complete the process itself.

Accordingly, the 'sentencing' stage of the proceedings cannot stand and must be vacated. It is important that the disciplinary authority be allowed to properly complete its mandate.

DISPOSITION

What was before the court a quo were review proceedings.

Of the appellant's two valid grounds of appeal, the first lacks merit and will be dismissed. The second ground of appeal, being meritorious, will be upheld.

The court a quo, acting on the basis of a wrong procedural principle, erred in its finding, that, the disciplinary proceedings properly ended with the pronouncement of the guilty verdict against the appellant.

In the result, it is ordered as follows:

1. The appeal succeeds, in part, with each party bearing its own costs.

2. The judgment of the court a quo is set aside and substituted with the following:

'(a) The applicant's first, second, and third grounds for review are dismissed;

(b) The appellant's fourth ground for review is upheld.

(c) The matter is remitted to the disciplinary authority for it to consider the parties submissions in mitigation and aggravation, and, thereafter, to pronounce the appropriate penalty against the applicant.

(d) Each party shall bear its own costs.'

SC146-21 : THE GARRAT TRUST vs CREATIVE CREDIT (PRIVATE) LIMITED
Ruled By: BHUNU JA

This is an application for condonation of late noting of appeal and extension of time within which to note the appeal in terms of Rule 43 of the Supreme Court Rules 2018.

The application is opposed.

The matter was argued on 24 November 2020. At the conclusion of argument the parties were granted the opportunity to canvas the possibility of an amicable settlement. The matter was then postponed sine die pending settlement, failure of which the court would proceed to determine the application.

The parties did not, however, come back to the court within a reasonable time to advise it of the outcome of their negotiations.

Prompted by the inordinate delay, on 1 June 2021, I asked the Registrar to write to the parties enquiring about the outcome of the envisaged settlement.

The enquiry elicit no response.

Having received no response, I directed that the matter be set down for 11 October 2021.

At that hearing, the parties, again, agreed to a further two weeks postponement to canvas settlement. The matter was then postponed to 18 October 2021 by consent of the parties.

At the resumed hearing, on 18 October 2021, the applicant was in default. Counsel for the respondent, however, advised that the parties had failed to settle their dispute thereby paving the way for me to determine the application.

I now proceed to determine the application on the merits.

FACTUAL BACKGROUND

The applicant is a Trust duly registered in terms of the laws of Zimbabwe whereas the respondent (the company) is a duly registered juristic person in accordance with the laws of Zimbabwe.

It is common cause, that, the applicant owns 50 per cent shares in the respondent.

On 19 February 2019, the applicant made an application in the High Court (the court a quo) for the liquidation of the respondent company. It sought liquidation of the company on the basis that the directors had irretrievable differences as they were deadlocked on the management of the company.

The respondent opposed the application, raising a counterclaim coupled with a point in limine in the process.

It is convenient to deal with the point in limine first before delving into the merits of the application.

THE POINT IN LIMINE

The point in limine raised by the company is procedural in nature.

Counsel for the company submitted, that, the application before the court a quo was fatally defective for failure to comply with the mandatory provisions of section 5(4)(a) and (b) of the Insolvency Act [Chapter 6:07].

The court a quo upheld the point in limine hence the appeal.

The section provides as follows:

“5. Application by debtor for the liquidation of a trust, company, private business, corporation, co-operative or other debtor other than a natural person or partnership

(1)…,.

(b) By the company, or one or more directors or by one or more members for an order to wind up the company on the grounds that –

(i) The directors are deadlocked in the management of the company, and the members are unable to break the deadlock; and

A. Irreparable harm is resulting or may result from the deadlock; or

B. The company business cannot be conducted to the advantage of members, generally, as a result of the deadlock: or

(ii) The members are deadlocked in voting power, and have failed, for a period that includes at least two financial years, to elect successors to directors whose terms have expired; or

(iii) It is just and equitable for the company to be liquidated.

…,.

(4) Every application to the court referred to in subsection (1) except an application by the registrar of companies in terms of subsection 1(e) and the Master in terms of paragraph (h) of that subsection must be accompanied by -…,.

(a) A statement of affairs of the debtor corresponding substantially with Form A of the First Schedule; and

(b) A certificate of the Master, not issued more than four days before the date on which the application is to be heard by the Court, that sufficient security has been given for the payment of all costs in respect of the application that might be awarded against the applicant.”

It is common cause that the applicant did not comply with the mandatory provisions set out in section 5(4)(a) and (b) of the Insolvency Act in so far as the application was not accompanied by a statement of affairs of the debtor corresponding substantially with Form A of the First Schedule. That omission was in contravention of paragraph (a) above.

Secondly, there was no Master's certificate as is required by paragraph (b).

In paragraph 5.9 of its heads of argument, the applicant concedes that the application before the court a quo was in fact a nullity where it says:

“In casu, the application a quo was fatally defective and same should have been struck off the roll and not determined on the merits.”

On that score, counsel for the applicant argues, that, the court a quo committed a gross irregularity by proceeding to deal with the merits of proceedings which were a nullity at law.

It is correct to say, that, the learned judge a quo found that the applicant failed to comply with the strict mandatory provisions of the law, and that, therefore, the application before him was a nullity.

At page 5 of his cyclostyled judgment, the learned judge properly relied on the dictum in Air Duct Fabricators (Pvt) Ltd v A M Machado & Sons (Pvt) Ltd HH54-16.

That case is authority for the proposition, that, failure to comply with a mandatory course of action invalidates the thing done.

Having correctly articulated the law, the learned judge a quo appreciated that he ought to have struck the application off the roll as a nullity for want of compliance with the law. He however did not strike off the application but went on to consider the company's counter application.

In his own words, this is what he had to say at page 5 of HH606-20:

“So much for the preliminary point which the entity raised. It is not without merit. But, for the need on my part to consider the application as a whole, the same would have been struck off the roll with costs. I remain alive to the fact that the parties placed before me an application and a counter-application. It is therefore necessary for me to consider both and make a determination, which, in my view, serves the interests of the parties.”

Having said that, the learned judge a quo went on to consider the merits of the counter application and issued the following order at page 17 of HH606-20:

“I have considered all the circumstances of this case. I remain alive to the fact that the counter-application in favour of the entity in terms of paragraph (d) of subsection (2) of section 197 of the Companies Act. I am satisfied that the requirements which are mentioned in section 196 of the Companies Act are met.

It is in the result ordered that:

(a) The main application be and is hereby dismissed with costs.

(b) The main order in the draft of the counter application be and is hereby granted.”

Thus, the learned judge a quo determined both the main application and the counter-application notwithstanding the fact that he had previously observed that the proper course of action to take was to strike off the main application for want of compliance with the mandatory provisions of the law.

ANALYSIS OF THE FACTS AND THE LAW

On the facts before him, the learned judge was undoubtedly correct in his view, that, the main application ought to be struck off for none-compliance with the law. The applicant's failure to comply with the mandatory procedural requirements of the law meant that the application was not properly before the court a quo.

The proper order in that regard is to strike off the proceedings as a nullity.

In Chirosva Minerals (Pvt) Ltd v Minister of Mines and Ors 2011 (2) ZLR 274, the court held, that, the disregard of a peremptory provision in a statute is fatal to the validity of the proceedings affected.

What this means is that the main application that was launched in the court a quo, without the statement of affairs of the debtor and the Master's certificate, as required by law, was void, and, to that extent, a legal nullity.

The leading case on the effect and import of void proceedings is Mcfoy v United Africa Co Ltd [1961] 3 ALL ER 1169…,. In that case, LORD DENNING observed that:

“If an act is void, then, it is, in law, a nullity. It is not only bad but incurably bad. There is no need for an order of court for it to be set aside. It is automatically null and void without more ado, although it is sometimes more convenient to have the court declare it to be so. And every proceeding which is founded on it is also bad. You cannot put something on nothing and expect it to stay there. It will collapse.”…,.

On the basis of the law, as articulated through the cases, once the learned judge had taken the correct view that the main application upon which the counter application was founded was a nullity, he ought to have declared the application a nullity and stop there.

Since the counterclaim was founded on a nullity, it had no independent existence of its own. It would therefore have collapsed together with the main application as it was riding on the back of the main application.

Faced with the same situation in Care International Zimbabwe v ZIMRA & Ors HH373–15…,.; 2015 (1) 567…, MTSHIYA J, sitting in the same court, had this to say:

“I agree with the first respondent, that, there is no valid application before the court, and, accordingly, the rest of the issues raised by the respondents cannot be delved into. The finding estops me from going any further.”

MTSHIYA J was undoubtedly correct that once an application is found to be fatally defective the court cannot go on to determine any other issues based on the defective application.

In light of established precedent, it is plain that the learned judge a quo strayed into the morass of irregularity when he proceeded to determine both the main application and the counter application in circumstances where it was clear to him that the main application was a nullity.

There is, therefore, merit in the applicant's complaint, that, the court a quo could have misdirected itself by failure to strike off the main application, and, by extension, the counter-application.

DISPOSITION

For the foregoing reasons, I find that the applicant has bright prospects of success on appeal. It is accordingly ordered that:

1. The application for condonation of late noting of appeal and extension of time within which to note the appeal be and is hereby granted.

2. The notice of appeal shall be filed and served within five (5) days of this order.

3. There shall be no order as to costs.

HB38-15 : SIBUCO TRADING (PVT) LTD and EDITH KATAMBARARE vs LEADERS (PVT) LTD and MESSENGER OF COURT
Ruled By: MAKONESE J

The respondent filed an application for Directions in terms of Order 23 of the High Court Rules 1971.

On 26 November 2014, I directed that the Urgent Application for Stay of Execution, filed under case number HC2009/14, be set down for argument during the first term of 2015. The matter was set down for argument on 20 February 2015.

This judgment deals with the confirmation or discharge of the Provisional Order granted by this court on 28 August 2014.

Background

The factual background to this matter is as follows:

On 28 August 2014, the respondent (as plaintiff) obtained a judgment in the Magistrates Court for the cancellation of the lease agreement between the parties signed and concluded on 30 July 2012. The Applicant (as defendant) was also ordered to pay arrear rentals in the sum of $2,500 per month with effect from January 2013. The applicants were ejected from Shop Number 2, 79A Jason Moyo, Bulawayo and were ordered to pay collection commission together with interest at the prescribed rate and costs of suit.

Aggrieved by the judgment of the Magistrates Court, the applicants filed a Notice of Appeal and such appeal is pending before this court under case number HCA92/14.

Armed with the Notice of Appeal, the applicants approached this court, under cover of case number HC2009/14 on an urgent basis and obtained a provisional order whose interim provides that:

“Pending the finalization of this matter, execution of the magistrates court judgment under case number 732/13 is stayed.”

The respondents sought to set the matter for hearing, a move resisted by the applicants.

This prompted the filing of the application for directions.

I directed the parties to file their heads of argument and present argument on whether the application for Stay of Execution should be confirmed or discharged.

The first issue I must determine is whether the Notice of Appeal filed by the applicants is valid and complies with the rules.

Rule 29 of the Supreme Court Rules 1964 (which Rule applies to appeals to the High Court), provides that:

“Every civil appeal shall be instituted in the form of a notice of appeal signed by the appellant or his legal representative, which shall state:

(a) The date on which, and the court by which the judgment appealed against was given;

(b) If leave to appeal was granted, the date of such grant;

(c) Whether the whole or part only of the judgment is appealed against;

(d) The grounds of appeal in accordance with the provisions of Rule 3;

(e) The exact nature of the relief sought;

(f) The address of service of the appellant or his legal practitioner.”

In this matter, the Notice of Appeal does not state whether the appeal is against both liability for arrears and ejectment from the rented property.

This is far short from the peremptory requirements for the Rules.

Furthermore, to merely state, that, the appellants pray that their appeal be allowed with costs is grossly inadequate and not in compliance with the rules of the court.

The Notice of Appeal, is, in my view, fatally defective to the extent that it is a nullity.

There has been no attempt to seek to amend the Notice of Appeal in spite of the fact that the issue was raised way back in October 2014.

What this boils down to is whether the applicants can hold on to an Order for Stay of Execution obtained pursuant to a defective Notice of Appeal.

I am of the firm view, that, once it is established that the Notice of Appeal is defective and a nullity, the applicant's order for stay of execution cannot be allowed to stand.

In the case of Jensen v Acavalos 1993 (1) ZLR 216, KORSHA JA…, stated the position as follows:

“The reason is that a notice of appeal which does not comply with the rules is fatally defective and invalid. That is to say, it is a nullity. It is not only bad but incurably bad, and, unless the court is prepared to grant an application for condonation of the defect and allow a proper notice of appeal to be filed, the appeal must be struck off the roll with costs.”

HH391-17 : ANDREW PASCOE vs MINISTRY OF LANDS & RURAL RESETTLEMENT and W. BUNGU and THE ATTORNEY GENERAL N.O.
Ruled By: FOROMA J

It is accepted, that, in terms of Rule 229C(b) of the High Court Rules, the use of the incorrect form of application does not justify, in itself, the dismissal of the application.

HH667-15 : MARICK TRADING (PRIVATE) LIMITED vs OLD MUTUAL LIFE ASSURANCE COMPANY OF ZIMBABWE (PVT) LTD and THE SHERIFF FOR ZIMBABWE
Ruled By: MAFUSIRE J

Legal practitioners should keep abreast with, and heed pronouncements from the courts. It is a duty. The determination of cases on the merits should not be impeded or stalled unnecessarily for failure to follow the Rules.

This was the case in this matter.

From the papers filed by both parties, the merits appeared well set out. But, the case could not proceed. A technical objection taken by the respondent, in limine, blocked it.

I reserved judgment to think through it properly. Now, here is my judgment on the point.

In December 2014, this court granted a provisional order by consent. This followed an urgent chamber application by the applicant. The interim relief was a stay of execution of the applicant's goods, pending the confirmation or discharge of the provisional order. The final relief sought was for the first respondent (“the respondent”) to show cause why its writ in the main action, under HC3268/12, should not be set aside, and why its legal practitioner of record should not pay the costs of the application personally, or, in the alternative, why the respondent should not pay those costs on the higher scale.

The facts were simple.

The parties had once been landlord and tenant; the applicant being the tenant, and the respondent the landlord. There was a dispute over the proper level of rentals to be paid with the advent of the multi-currencying system introduced in this country in 2009. The dispute was taken to arbitration. An award was made in favour of the respondent. The award was registered as an order of this court under HC3268/12.

A writ of execution was issued.

But, the applicant claimed it had since paid all the arrear rentals. It accused the respondent and its legal practitioner of improper conduct by improperly trying to use the rent writ to recover operating costs and interest over which the respondent had no judgment.

Certainly, the respondent had no judgment for the operating costs and the interest on the rentals. It had issued summons under HC8399/14 to claim these.

However, the applicant took a special plea in bar. It pleaded prescription. That case was yet to be determined.

So, basically, the applicant's case was, that, for the respondent to try and use the rent writ to recover disputed operating costs and interest was an extreme form of abuse of the court process. It prayed that its lawyer, allegedly the architect of the abuse, be mulcted in costs.

Of course, the respondent denied any wrongdoing.

So, the case before me was the return day of the provisional order.

The point in limine by the respondent was that there was nothing before me to determine because the applicant's application was neither in Form No.29 nor Form No.29B as required by Rule 241(1) of the Rules of this Court.

Rule 241 of the High Court Rules reads:

“(1) A chamber application shall be made by means of an entry in the chamber book and shall be accompanied by Form 29B duly completed, and, except as is provided in subrule (2), shall be supported by one or more affidavits setting out the facts upon which the applicant relies:

Provided that, where a chamber application is to be served on an interested party, it shall be in Form No.29 with appropriate modifications.”…,.

In casu, the applicant's urgent chamber application was one to be served. Indeed, it was served. So, it had to be in Form No.29. But it was not. It was also not in Form No.29B either.

It read like this:

“TAKE NOTICE that the Applicant hereby makes an Urgent Chamber Application for an order in terms of the draft order annexed to this application and the accompanying affidavits and documents will be used in support of the application.”

I observe, in passing, that, the format of the application used by the applicant seems so popular among legal practitioners in this jurisdiction.

I do not know where it comes from.

But, all that is required of litigants is simply to copy and paste either Form 29B or Form 29, the latter with appropriate modifications if the application is a chamber application that needs to be served on interested parties.

Form 29 is for use in ordinary court applications, or those chamber applications that require to be served.

One of its most important features is that it sets out a plethora of procedural rights. It alerts the respondent to those rights.

For example, in notifying the respondent of the court application, the form also notifies the respondent of his right to oppose the application, and warns him of the consequences of failure to file opposing papers timeously.

On the other hand, Form 29B, for simple chamber applications, requires that the substantive grounds for the application be stated, in summary fashion, on the face of that form.

Nothing can be more elementary.

The courts, both in this jurisdiction and elsewhere, have repeatedly drawn attention to the need to follow the Rules on this.

It is not a “sterile” argument about forms: per HLATSHWAYO J in Zimbabwe Open University v Mazombwe 2009 (1) ZLR 101 (H)…,.

I sample some of the pronouncements by the courts:

(1) In Simross Vintners (Pty) Ltd v Vermeulen VRG Africa (Pty) Ltd v Walters t/a Trend Litho Consolidated Credit Corporation (Pty) Ltd v Van Der Westhuizen 1978 (1) SA 779 (T) COETZEE J said…,:

“…,. [T]he more fundamental difficulty arises, that, the document which purports to be a notice of motion is, as I have indicated above, a nullity, and, I have grave doubt whether the court has power, under this Rule, to repair a nullity; a concept in law which carries within itself all the elements of irreparability….,. In addition, it must be emphasized that Form 2(a) contains a description of the procedural rights of the respondent after service of the notice of motion. These rights are considerable and substantial. How could a Court, even if it were not a nullity, put a blue pencil through all these rights in the absence of the person in whom they reside, and without notice to him that such an order which abrogates his rights might be made? This application is struck off the roll.”

(2) In Jensen v Acavalos 1993 (1) ZLR 216 (S) KORSAH JA, stating the same principle, albeit, in respect of a notice appeal, said…,:

“The reason is that a notice of appeal which does not comply with the Rules is fatally defective and invalid. That is to say, it is a nullity. It is not only bad, but incurably bad, and, unless the court is prepared to grant an application for condonation of the defect and to allow a proper notice to be filed, the appeal must be struck off the roll with costs….,.”

(3) In Zimbabwe Open University v Mazombwe 2009 (1) ZLR 101 (H), HLATSHWAYO J…, said…,:

“In terms of Rule 229C, the use of one form instead of another, of Form 29 instead of Form 29B, does not, in itself, constitute sufficient ground for dismissing the application; it being necessary for a court or a judge to conclude that some interested party has thereby suffered prejudice which cannot be remedied by directions for service on the injured party, with or without an order of costs….,. However, the applicant's error in this instance was not one of using one form instead of another, but of using a completely different format from the authorized ones….,.”…,.

(4) In Zimbabwe Open University v Mazombwe 2009 (1) ZLR 101 (H), there is this seminal statement, at p103C–E:

“Lest an impression be formed, that, this is a sterile dispute about forms, I have deemed it necessary to outline, in a summary way, what each of the two forms contains, on the one hand, and the unique features of the format used by the applicant, on the other.

In Form 29, the applicant gives notice to the respondents that he or she intends to apply to the High Court for an order in terms of an annexed draft and that the accompanying affidavit/s and documents shall be used in support of the application. It goes on to inform the respondent, if he or she so wishes, to file papers in opposition in a specified manner, and within a specified time limit, failing which the respondent is warned that the application would be dealt with as an unopposed application.

In Form 29B, an application is made for an order in terms of an annexed draft, on grounds that are set out in summary, as the basis of the application, and affidavits and documents are tendered in support of the application.”

(5) In Richard Itayi Jambo v Church of the Province of Central Africa & Ors HH329-13 GUVAVA J…, said…,:

“This court has stated in a number of judgments…, that, parties are obliged to comply with the Rules. Where there is a non-compliance, the applicant must apply for condonation and give reasons for such failure to comply with the Rules: see also Jensen v Avacalos 1993 (1) ZLR 216 (SC).

In this case, the applicant's legal practitioner made no effort to comply with this Rule despite the fact that the point was raised in the respondent's opposing affidavit. The request to the court to condone the non-compliance was made cursorily at the hearing as if the grant of such condonation is always there for the asking.

It seems to me, that, legal practitioners must be reminded that there is an obligation to comply with the Rules of this court….,.

Clearly, where a party fails to comply with the Rules there must be a plausible reason why there has been a failure to comply. In this case, the attitude of the applicant was that such non-compliance must be granted by the court even though no explanation has been proffered for such failure. The applicant's counsel merely submitted, that, the defect was not material enough to vitiate the application.

In my view, this is not sufficient, and, on this basis alone, I would dismiss the application.”

(6) In Minister of Higher & Tertiary Education v BMA Fasteners (Private) Limited & Ors HB42-14 MAKONESE J said:

“It is trite law, that, a Chamber Application must comply with the rules governing Chamber Applications. Chamber Applications are provided for by Order 32 Rule 241. Rule 241(2)(sic) states, that, where a Chamber Application is to be served on an interested party it should be in Form No.29 with appropriate modifications. In terms of Rule 232, a Respondent shall be entitled to not less than 10 days to file opposing affidavits. In urgent matters, the court may specify a shorter period than 10 days.”

(7) I have also had occasion to comment on this matter.

In Base Minerals Zimbabwe (Private) Limited & Anor v Chiroswa Minerals (Private) Limited & Ors HH559-14 I said, in relation to non-urgent chamber applications…,:

“The proviso to Rule 241(1) permits the modification of Form 29 where the chamber application has to be served. What would constitute 'appropriate modifications' is not stated. Why, then, does it become important that every time a chamber application has to be served, the applicant should abandon Form 29B and switch over to Form 29?

In my view, once the chamber application becomes one that must be served, then, the respondent is entitled to a period within which to file opposing papers. The 'appropriate modifications' would include, in my view, a fusion of the contents of Form 29 and those of Form 29B. In other words, it becomes a hybrid, containing both '…, the plethora of procedural rights…,” of Form No.29, including the dies induciae, and a summary of the grounds of application of Form No.29B.”

In casu, there is really no aspect of the matter that has not been dealt with, or commented upon before. In particular, the applicant used a format that is foreign to our Rules.

The respondent objected.

The objection was taken as far back as the notice of opposition. It was persisted with in the heads of argument. Finally, it was pressed on with at the hearing.

But, throughout all these stages, the applicant steadfastly refused to acknowledge any wrong doing. It has argued, that, its format substantially complies with the Rules. It has consciously and deliberately, so it seems to me, refrained from applying for condonation.

But, with the weight of authorities against such a stance, what has been the applicant's argument?

The applicant's argument before me was that this was the return day of the provisional order. It argued, that, the respondent had consented to the grant of the provisional order and that the provisional order had been predicated on the very same application now sought to be impeached.

Furthermore, the argument went on, this court had also seen it fit to grant the provisional order on the basis of the same application.

Therefore, the argument concluded, the respondent was now disbarred from raising the challenge.

In my view, the applicant's argument is illusory.

That the respondent consented to the provisional order being granted on the basis of a defective application, or that this court had gone on to grant the provisional order, did not, in my view, disbar the respondent from raising the objection on the return day.

There are a number of reasons for my saying this.

The defective application gave notice of an application for an order in terms of the draft. One goes to the draft order.

It was on the return day, the day when the final order was being sought, that the actual application would be moved and the substantive relief sought. It was on the return day that the respondent would be called upon to show cause why its writ of execution should not be set aside. It was on the return day that the respondent would show cause why its legal practitioner of record should not be ordered to pay the costs of suit personally, or, in the alternative, why it should not itself pay them at the higher scale.

In other words, the actual application would happen on the return day.

Given the somewhat summary fashion with which issues are inevitably dealt with in urgent applications, a respondent might consider it futile to contest the fact that the applicant might have established some prima facie right worthy of interim protection by the court. A respondent might decide that an applicant's fear of an irreparable right be found to be reasonable by the court. It might also decide that the balance of convenience might be found to favour the applicant, and so on.

So, the respondent might decide to reserve its rights to fight the real battle on the return day.

Therefore, I do not read anything into the respondent's consent to the granting of the provisional order, or the fact that this court went on to actually grant it. The respondent was entitled to raise the objection on the return day.

Nothing was decided by the provisional order.

An application, like a summons commencing action, is the founding process by which a matter is brought to court for determination. If the application is incurably defective, as it was in this case, then, there cannot be anything before the court to sit over in judgment.

The purported application is simply a nullity and must be struck off the roll.

Presumably, owing to the attitude that it had taken, namely, that its format was in substantial compliance with the Rules, the applicant probably felt constrained to apply for condonation.

I need not deal with this aspect in any depth.

The respondent railed against the applicant for its failure or reluctance to apply for condonation. What triggers the exercise of discretion by a court or a judge to grant or refuse condonation is the application: see Forestry Commission v Moyo 1997 (1) ZLR 254 (S)…,.

The court does not just do it of its own accord.

In the circumstances, the applicant has made its bed of roses. It must lie on it. There being no application properly before the court, the application should simply be struck off the roll, with the applicant paying the wasted costs.

However, having struck off the application from the roll, it is not the end of the matter.

HH801-22 : EQUITY PROPERTIES (PVT) LTD vs AL SHAMS GLOBAL BVI LIMITED and REGISTRAR OF DEEDS N.O.
Ruled By: MANGOTA J

I set HC6264/21 down for hearing. The hearing was scheduled for 20 June 2022. At the hearing, the applicant, which was the respondent in the case, raised a preliminary point. It did so through counsel.

Its in limine matter was that the first respondent (“the respondent”) which was the applicant in the court a quo did not file its Heads within the dies which TSANGA J issued to the parties on 4 February 2022. It insisted that the respondent was barred and could not, therefore, be heard until it unbarred itself.

The respondent opposed the preliminary point which the applicant raised.

It admitted that it did not file its Heads within the dies. It claimed that it had agreed with the applicant, that, both parties would file their respective Heads outside the order which the court issued to them.

It unsuccessfully applied to uplift the bar.

Following the submissions of the parties, I remained of the view, that, both of them flouted the order of TSANGA J.

I decided that they were both barred and were, therefore, improperly before me. I, accordingly, struck HC6264/21 off the roll and ordered that each party meets its own costs.

The decision which I made constitutes the applicant's cause of action. It filed this application for leave to appeal the same.

It attached to the application its draft notice and grounds of appeal. It remains of the view, that, I should not have made a finding which was/is to the effect that it was barred. It insists, that, it could not file its Heads without the respondent having filed its Heads first. It claims, that, once the respondent was barred, it no longer had any obligation to file Heads or any further pleading other than to apply that default judgment be entered against the respondent.

It, accordingly, moves me to grant leave to it to appeal.

The respondent opposes the application for leave to appeal. It insists, that, the appeal has no merit, and, therefore, has no reasonable prospects of success.

It alleges, that, both the applicant and it were improperly before the court. Both parties, it asserts, were in contempt of court by virtue of not obeying the court order which directed them to file their respective Heads within certain time-frames.

It argued, through counsel, that, Part XVI of the High Court Rules 2021 deals with such applications as the one which the applicant placed before me. It placed reliance on Rule 94(8) as read with sub-rules (1) and (2) of the same Rule of court which subrules it claims are peremptory.

It asserts, that, the application for leave, which, according to it, does not comply with the mandatory rules of court, is fatally defective and must therefore be dismissed with costs.

An application for leave to appeal places the judge before whom it is placed in an invidious position.

The applicant, it would appear, will be inviting the judge to review his own decision.

The judge who takes the position of reviewing his own work falls into an unfortunate situation where, at the hearing, he is tempted to make common cause with the respondent.

He should make every effort not to be tempted to agree with the respondent at the detriment of the applicant. He should, at all times, endeavor to be as objective as he humanly can.

His guiding rod in the determination of such an application as the present one is whether or not the applicant has reasonable prospects of success on appeal: Pichanic N.O. v Paterson 1993 (2) ZLR 163 (H); Afrikaanse Pers Beperk v Oliver 1949 (2) SA 890.

Whether or not the application is defective on the alleged ground, which is to the effect that the applicant did not comply with Rule 94 of the rules of court, will unfold itself upon an analysis of the said Rule as well as on a proper interpretation of the same.

Sub-rule (8) of Rule 94 of the rules of court is relevant.

Its import is, that, where leave to appeal is necessary in respect of a judgment given in a civil court, sub-rules 1–7 of the Rule shall apply to an application for leave to appeal…, as if the words 'Prosecutor-General' there were substituted the word 'respondent'.

Sub-rule (1) of Rule 94 of the High Court Rule stipulates, that, where leave to appeal is sought, the applicant:

(a) May apply, orally, immediately after judgment has been entered against it: and

(b) Should state his grounds for the application.

Sub-rule (2) of Rule 94 is to the effect, that, where the applicant has not made an oral application in terms of sub-rule (1), he may file with the Registrar a written application within twelve days of the date of the judgment. The written application must, according to the proviso which is in the sub-rule, state the reasons why the application was not made in terms of sub-rule (1) of Rule 94 of the rules of court.

It is on the strength of the abovementioned sub-rules of Rule 94 of the High Court Rules 2021 that the respondent argued that the application was/is defective.

It submitted, that, the applicant violated sub-rules (1) and (2) as well as the proviso to sub-rule (2) of Rule 94. It insists, that, both sub-rules are peremptory and should, therefore, have been complied with to the letter and spirit.

The respondent's contention, it has been observed, is that the application for leave is defective.

I disagree.

Whilst it is agreed that Rule 94 of the High Court Rules relates to applications for leave to appeal, the Rule is not peremptory as the respondent would have me believe. It is optional or discretionary. Its use of the word 'may' in each subrule says it all.

It only becomes peremptory in paragraph (b) of sub-rule (1).

It becomes mandatory in the sense, that, once the applicant has taken the option to apply orally for leave to appeal, he is enjoined by the Rule to state, as well as record, his grounds of the application as part of the record. The net effect of paragraph (a) of sub rule (1) of Rule 94 of the High Court Rules is that he is at liberty to apply or not to apply orally for leave to appeal.

Equally of importance to the applicant is the discretion which sub-rule (2) of Rule 94 confers upon him.

He may, or may not, file a written application with the Registrar where he has not exercised his right to apply for leave to appeal under sub-rule (1) of Rule 94 of the rules of court. However, where he chooses to exercise his right in terms of Rule 94(2), the proviso to the Rule imposes upon him certain conditions which he must comply with. He must, for instance, state the reason why he refrained from exercising his option in terms of sub-rule (1) of Rule 94. He must also state the proposed grounds upon which he contends that leave to appeal should be granted to him.

What is evident, from a reading of sub-rules (1) and (2) of Rule 94 of the rules of court is that the applicant has a choice to pursue his options under either of the subrules - but not both. What is also clear is that, the moment he takes the one or the other sub-rule, his performance under his chosen sub-rule becomes peremptory leaving him with no choice but to act in accordance with the route which he has taken.

The Rule remains silent where he does not pursue his rights in terms of either sub-rule (1) or sub-rule (2).

It follows, in my view, that, he can choose not to follow the one or the other of the two sub-rules, as the applicant did in casu, and still be able to apply for leave to appeal under the common law.

The question which begs the answer is: can the application which he filed outside Rule 94 of the rules of court be suggested to be defective?

I think cannot.

The application remains as valid as the one which an applicant files under Rule 94 of the High Court Rules 2021. This application cannot, therefore, be said to be defective. It is within the law, so to speak.

For the applicant to succeed in its application for leave to appeal, it must demonstrate that it has reasonable prospects of success on appeal.

In laying down the test of reasonable prospects of success, the authorities were only stating the obvious. The obvious is, that, it would be a waste of the time of the court, and that of the respondent, if the applicant were to appeal just for the fun of it. An appeal which is filed without the applicant's serious intention to test the correctness or otherwise of the decision of the court a quo is frivolous and vexatious. No court will sanction an application which relates to such an appeal.

The context of this application is relevant.

The context is that, on 4 February 2022, TSANGA J, before whom the parties appeared, set specific time-lines within which they were to file their respective papers in preparation for the hearing of the matter. This was scheduled to take place at 10am of 28 March 2022. The learned judge directed, among other directions, that:

(a)…,.

(b)…,.

(c) The applicant a quo shall file its Heads on 16 February 2022; and

(d) The respondent a quo (applicant in casu) shall file its Heads on 2 March 2022.

That both parties filed their respective Heads outside the above-mentioned timelines requires little, if any, debate.

In deciding as I did, I remained alive to the fact, that, the directions of TSANGA J are, no doubt, an order of court which the parties had no choice but to obey.

I was further persuaded by case authority which discussed the issue which the parties had placed before me.

It is, for instance, trite, that, when a court order provides a time limit within which to do something…, such time limits ought to be followed. Failure to comply with such time limits leads to lapsing of the rights conferred therein: The Sheriff of the High Court of Zimbabwe v Madziro & Ors HH670-15.

It is a plain and unqualified obligation of every person against, or in respect of whom the order is made by the court of competent jurisdiction to obey it, unless and until that order is discharged; and, as is known, two consequences flow from that obligation:

(i) The first one is that anyone who disobeys an order of court is in contempt and may be punished by committal or attachment or otherwise.

(ii) The second is that no application to court by such person will be entertained unless he has purged himself of his contempt: Artiknson v Artkinson (1952) 2 All ER 567 (CA).

By not complying with the order of TSANGA J, both the applicant and the respondent were, no doubt, in contempt of the court order.

None of them could therefore be heard unless it purged itself of the contempt.

I found the applicant's finger-pointing at the respondent to have been made without any serious intention on its part. This was a fortiori the case given that it did not, on its part, make any effort to live within the four corners of the court order which the learned judge issued to the respondent and it.

The applicant premised the preliminary point which it raised on the order of TSANGA J. It did not rest it on the rules of court as it seems to suggest in its Heads. It submitted, that, the respondent did not comply with the order of TSANGA J.

Its reliance on Rule 59(21) of the rules of court is, therefore, misplaced.

Because it referred me to the order of the learned judge, the decision which I made was not premised on the rules of court. It rested on the order of the court.

The specific time-lines which the learned judge dished out to the parties aimed, in my view, at preparing them for the hearing which had been scheduled for 28 March 2022 at 10am. Their belated filing of Heads had an adverse effect on the hearing of the application. It was only fortuitous that it was not heard on the date to which it had been set down.

I found the conduct of the parties, both of whom were/are ably legally represented, to be wanting in the extreme sense of the word.

The applicant's reference to Rule 59(21) of the rules of court imports a new dimension into the equation of the decision which I made in June 2022.

The dimension centers on what parties to a case should comply with between an order which the court, properly constituted, issues to them, and the law as stipulated in the rules of court. Which of the two laws, in other words, must give way to the other.

The dimension raises jurisprudential issues which only the superior court can clarify for the benefit, not only of the court, but also of litigants.

It is on the mentioned score that I remained persuaded to grant leave to the applicant to prosecute its appeal. The prosecution of the same will, no doubt, enhance the development of the law and the court's appreciation of the same.

The application is, in the premise, granted as prayed.

CC02-21 : TEMBA MLISWA vs PARLIAMENT OF THE REPUBLIC OF ZIMBABWE
Ruled By: MALABA CJ, GWAUNZA DCJ, GARWE AJCC, MAKARAU AJCC, GOWORA AJCC, HLATSHWAYO AJCC and PATEL AJCC

BackgroundThe applicant is a duly elected Member of Parliament for the Norton Constituency. On 24 June 2020, during an ordinary sitting of the National Assembly over which the Speaker of Parliament was presiding, he was removed from Parliament and suspended for six consecutive sittings for allegedly behaving in a violent ...

Background

The applicant is a duly elected Member of Parliament for the Norton Constituency. On 24 June 2020, during an ordinary sitting of the National Assembly over which the Speaker of Parliament was presiding, he was removed from Parliament and suspended for six consecutive sittings for allegedly behaving in a violent and grossly disorderly manner.

The expulsion and suspension were ordered by the Speaker of Parliament (“the Speaker”).

Aggrieved by the expulsion and suspension, the applicant filed this application on 20 July 2020. The application, brought specifically in terms of section 167(2(d) of the Constitution, alleged that the respondent had failed to fulfil a constitutional obligation to ensure compliance with its Standing Orders.

In particular, the applicant sought to demonstrate how the expulsion was inconsistent with the procedures and the powers granted to the Speaker by the Standing Orders and in terms of which the Speaker purportedly acted.

The applicant further denied having been disorderly as alleged or at all. He also challenged the propriety and validity of the punishment that was meted out to him on the basis that he was not afforded the right to be heard before he was punished.

The application was opposed with the respondent's opposing affidavit being deposed to by the Speaker.

In addition to opposing the matter on the merits, the respondent raised five preliminary points.

Not necessarily in the same order in which the points were raised in the opposing affidavit, the respondent;

(i) Challenged the jurisdiction of this Court;

(ii) The validity of the application itself, by alleging that it was fatally defective for want of compliance with the rules of the court; and

(iii) The efficacy of the relief sought which it alleged was moot since the applicant had already served the punishment by the time of the filing of the application.

(iv) The respondent also challenged the non-joinder of the Speaker which it alleged was fatal to the application; and

(v) Finally, it requested that this Court withholds its jurisdiction as the matter was pending before the High Court where similar relief had been sought under case no. HC3367/2020.

Regarding the merits of the application, the respondent contended, in the main, that, the applicant had indeed behaved in a disorderly manner and that the punishment meted out to him was appropriate and in accordance with the powers granted to the Speaker by the Standing Orders. The respondent specifically denied, that, the Speaker had exceeded his authority and powers as alleged in the application or at all.

The Issue

As stated above, the respondent raised the issue of the jurisdiction of this Court as one of its preliminary points. This it however did in direct response to the allegation that the applicant had not been afforded the right to be heard before he was punished.

In response to this specific allegation, the respondent contended, that, the applicant ought to have approached the High Court on review, challenging the procedure leading to his punishment. It was thus the position of the respondent, erroneously held in my view, that, since the High Court also enjoyed review jurisdiction in the matter, the jurisdiction of this Court was not triggered.

Whilst nothing turns on this point, I wish to note, in passing, that, this Court enjoys concurrent jurisdiction with other courts in constitutional matters. The coincidence of jurisdiction with the other courts does not oust the jurisdiction of this court.

The position may be contrasted with instances where this court has been granted exclusive jurisdiction. In those instances, naturally, it is the jurisdiction of the other courts that is ousted even if the matter is, technically, a constitutional matter.

Without necessarily accepting as correct the basis upon which the respondent challenged its jurisdiction in the matter, the court, was, on its own accord, concerned with whether its jurisdiction had been triggered at all by the averments made in the application taken in their totality.

It therefore raised the issue for preliminary argument.

The specific question put to both parties for the preliminary address was whether the applicant had chosen the appropriate forum and remedy for the vindication of his alleged injury.

Therefore, the sole issue that fell for determination in this preliminary ruling was whether the conduct complained of by the applicant was conduct signifying failure by the respondent to fulfil a constitutional obligation.

The Submissions

In the main, counsel for the applicant submitted, that, by failing to follow the provisions of its own Standing Orders, the respondent had failed to uphold the rule of law and had acted without due process.

To buttress his submissions in this regard, counsel relied heavily on the principles of constitutional supremacy and accountability and on which he expended the bulk of his time and energy.

Regarding the jurisdiction of this Court, counsel submitted, that, this court had jurisdiction as the respondent had a constitutional obligation which it breached “through its Speaker”.

It was thus his argument, that, the Speaker and the respondent were inseparable and that once he was in the House, the Speaker represented the respondent. On that basis, he invited us to find, as a fact, that, the expulsion and suspension of the applicant was conduct by the respondent “through its Speaker”.

Counsel for the respondent, in turn, submitted, that, the application was not properly before the court as the conduct complained of was not that of the respondent.

It was his argument, that, the Speaker is separate and distinct from the respondent.

In support of this argument, counsel maintained the respondent's position, once again erroneously held in my view, to the effect, that, the Speaker ought to have been cited as a co-respondent in this application as he was the decision maker in the instance and it is his conduct that allegedly violated the provisions of the Standing Orders.

The Law

That the power granted to the courts by the new Constitution, to hold public officers accountable to the Constitution, marks a clear departure from the State power sharing arrangement provided for under the repealed Constitution, and the jurisprudence that emerged under that order is now commonplace.

Our constitutional order has evolved from one where the conduct of those wielding public power was predominantly immune to judicial review, insulated and shielded from such by the strict application of the doctrine of separation of powers, to one where the conduct of all public affairs must measure up to the constitutional imperatives under the watchful eye of the judiciary, which, in turn, is also obliged to always venerate the Constitution.

Commenting on the new constitutional order, PATEL JA, in Judicial Service Commission v Zibani & Others SC68-17 had this to say:

“It is axiomatic that Zimbabwe is a constitutional in contradistinction to a parliamentary democracy: see Biti & Anor v Minister of Justice, Legal and Parliamentary Affairs & Anor 2002 (1) ZLR 177 (S) at 190A-B. This fundamental principle and its concomitant legal ramifications are codified in section 2 of the Constitution as follows:

(1) This Constitution is the supreme law of Zimbabwe, and, any law, practice, custom or conduct inconsistent with it is invalid to the extent of the inconsistency.

(2) The obligations imposed by this Constitution are binding on every person, natural or juristic, including the State and all executive, legislative, and judicial institutions and agencies of government at every level, and must be fulfilled by them.”

Adding a building block onto the now settled jurisprudence on the new Constitutional dispensation, HLATSHWAYO JCC, in Chironga and Another v Minister of Justice, Legal and Parliamentary Affairs and Others CC14-20 opens his judgment by noting that:

“One of the crucial elements of the new constitutional dispensation, ushered in by the 2013 Constitution, is to make a decisive break from turning a blind eye to constitutional obligations. To achieve this goal, the drafters of the Zimbabwean Constitution Amendment No.20 Act 2013 (“the Constitution”) adopted the rule of law and the supremacy of the Constitution as some of the core founding values and principles of our constitutional democracy. For this reason, public office bearers ignore their constitutional obligations at their own peril.”

The above remarks are ample evidence, if any is needed, that, the doctrines of constitutional supremacy and accountability, under the new Constitution, have been fully embraced by this Court and underpin the jurisprudence that is emerging therefrom.

Detailed and spirited submissions by counsel for the applicant on these principles, whilst necessary to establish the baseline from which all other arguments in the matter would be considered, were thus as effective as preaching to the clergy.

Similarly, this Court has also accepted and holds as the correct position at law, that, the respondent has an obligation to protect the Constitution and to promote democratic governance in Zimbabwe.

It accepts, that, the respondent has the obligation to uphold, among others, the rule of law and supremacy of the Constitution - two of the founding values and principles set out in the Constitution.

In Gonese & Anor v Parliament of Zimbabwe & Ors CC04-20, MALABA CJ noted…, that, there are provisions in the Constitution that impose obligations on the respondent as directly enforceable law. In his words:

“There are provisions of the Constitution which impose obligations on Parliament. The Constitutional provisions impose the obligations on Parliament as directly enforceable law.

Section 119 of the Constitution imposes an obligation on Parliament to protect the Constitution and promote democratic governance in Zimbabwe. The obligation imposed on Parliament, by section 328(5) of the Constitution, is that it must not pass a Constitutional Bill at the last reading in the National Assembly and the Senate except by affirmative votes of two-thirds of the membership of each House.”

As stated above, the submissions by counsel for the applicant on the supremacy of the Constitution and the transition from non-accountability to full accountability, under the Constitution, by all wielders of public power, whilst correct, do not go anywhere near addressing the issue that arises in this matter.

The issue that arises is whether the respondent acted at all or omitted to act, and, in so doing, failed to fulfil an obligation imposed upon it by the Constitution as envisioned by section 167(2)(d) of the Constitution.

The power granted to this Court “to determine whether Parliament or the President has failed to fulfil a constitutional obligation” is a specific and deliberate mechanism introduced into the procedures of this Court to ensure that Parliament, and the President, fulfil their respective constitutional obligations.

It is necessarily granted, in clear and unambiguous terms, to constitute the vehicle only through which the supremacy of the Constitution can be fully realised and the provisions of section 2(2) of the Constitution fulfilled in respect of Parliament and the President.

It sets the tone for the exercise of constitutional jurisdiction by the other courts over all other wielders of State power. The mechanism is therefore a deliberate attenuation of the applicability of the doctrine of separation of powers among the organs of State.

For the effective and smooth functioning of the State, the comity that must exist between the judiciary and the other organs of State must, as before, act to restrain this Court from using its special jurisdiction save in strict compliance with the section.

Quite apart from the comity considerations, the ambit of the court's jurisdiction, under section 167(2)(d) of the Constitution, is procedurally limited by the requirements of the cause of action that is created by the section.

These are clear cut. They are:

(i) An identified constitutional obligation; and

(ii) Conduct or an omission by the respondent signifying a failure to fulfil the obligation.

The two requirements are not consecutives but are concomitants, both of which must be alleged and proved.

In Doctors for Life International v Speaker of The National Assembly & Ors 2006 (6) SA 416 (CC), NCOBO J…, observed, that, a claimant who seeks, under the South African Constitution, to vindicate a constitutional right by impugning the conduct of a State functionary must identify the functionary and impugned conduct with reasonable precision.

To plead one's case with precision is a rule of procedure that I believe also applies with equal force to all applications brought under section 167(2)(d) of the Constitution.

I shall revert to this point below.

The special jurisdiction, not being inherent, cannot be invoked over all persons and over all constitutional matters.

In particular, it being a special vehicle to hold the other two organs of State accountable, the exclusive jurisdiction of this Court cannot be invoked to inquire into the conduct of other State agencies who are not Parliament or the President.

For these other actors, common law causes of action abound and the jurisdiction of this Court over such matters is shared with the other courts in the land as stated in passing above.

Put differently, the only permissible respondents under an application in terms of section 167(2)(d) of the Constitution are Parliament or the President.

Therefore, and limiting myself to the facts of this matter, the special jurisdiction cannot be invoked to determine whether the conduct of the Speaker, for instance, was a failure to fulfil a constitutional obligation.

On the basis of the above, I wish to comment, once again, in passing, that, it is impermissible to join another party as respondent to an application brought under section 167(2)(d) of the Constitution as submitted and suggested by counsel for the respondent.

Analysis

The application, as pleaded, seeks to impugn the conduct of the respondent “through its Speaker.”

In my view, such style of pleading, which conflates the Speaker with the respondent, obfuscates the exact conduct that the applicant seeks to impugn. It is not precise enough for the purposes of the section.

It fails to meet the requirements of the law.

The applicant specifically challenges the conduct by the Speaker as exceeding the powers granted to him by the Standing Orders, and, at the same time, imputes such allegedly unlawful conduct to the respondent.

Therein lies the first hurdle that this Court must overcome before its jurisdiction can be triggered: Whose conduct is under its scrutiny?

Being alive to the requirements of the cause of action under section 167(2)(d) of the Constitution, as discussed above, counsel for the applicant argued, that, the respondent expelled and suspended the applicant through its Speaker.

But, did it?

It is appropriate, at this stage, that, I advert briefly to the facts leading to the expulsion and suspension of the applicant, which facts are largely common cause.

On 4 June 2020, the applicant allegedly behaved in a disorderly manner during a sitting of the National Assembly that was presided over by the Deputy Speaker.

On 20 June 2020, the Speaker, now in the Chair, and in his capacity as Speaker, pronounced his ruling on the applicant's previous behaviour. He thereafter ordered the applicant to withdraw his un-Parliamentary language and to apologise to the House - which the applicant duly did.

Later, during the same sitting, the applicant allegedly, again, behaved in a disorderly manner.

The Speaker felt, that, the applicant was not remorseful. He thereafter summarily suspended the applicant for six consecutive sittings after which he ordered that the applicant be removed from the House.

As indicated above, counsel for the applicant did not seek to separate the Speaker from the respondent. In his words, during oral argument, the Speaker and Parliament are inseparable; once the Speaker is in the House, he becomes Parliament.

In this regard, counsel relied on a passage from the authors WOOLMAN and BISHOP, Constitutional Law in South Africa, Vol 1, 2nd Ed…, where they write:

“The NA (National Assembly) is chaired by the Speaker. The Speaker is the representative and spokesperson of the Assembly in its collective capacity. The Speaker may therefore give binding undertakings on behalf of the NA.”

On the basis of the above, counsel invited us to find, that, the conduct of the Speaker, in the circumstances of this matter, binds the respondent and amounts to a failure by the respondent to fulfil its constitutional obligation to uphold the rule of law and full compliance with its Standing Orders.

Whilst there is some undeniable cogency in the submission by the applicant's counsel, we must decline his invitation.

There are instances where the juristic acts of the respondent are performed through the agency of the Speaker - especially where the respondent is transacting with third parties.

Such instances include those referred to by the authors WOOLMAN and BISHOP, Constitutional Law in South Africa, Vol 1, 2nd Ed as cited above.

It stands to reason, that, the respondent, being a body of legislators, can only act through its members, officials and duly appointed agents.

The Speaker, being the head of Parliament, is naturally more often than not the voice and limbs of the respondent. Thus, quite conceivably, the pronouncements and conduct of the Speaker or other functionary can, at law, be regarded as the actions and conduct of the respondent and will bind the respondent.

An example of such an instance is readily afforded by the facts in the matter Gonese & Anor v Parliament of Zimbabwe & Ors CC04-20.

In that case, the certification by the President of the Senate, that a two-thirds majority had been attained on Constitution Amendment Bill No.1 when in fact it had not been so achieved, was found by this Court to amount to a failure on the part of the respondent to fulfil a constitutional obligation concerning the process for amending the Constitution.

However, in this application, the actions of the Speaker cannot be imputed to the respondent for the reasons that follow:

(i) Firstly, the Standing Orders, under which the applicant was punished, grant both the Speaker and the respondent the power to oversee the exercise of power, privileges, and immunities in the House.

The power given to the Speaker is independent of that given to the respondent.

He is granted a discretion on what penalty to impose on a member who breaches Parliamentary privileges. The level of punishment that he can decide upon is however on a lower threshold to that of the respondent.

For more serious breaches of Parliamentary etiquette meriting more severe penalties, the Speaker must refer the matter to the House after naming the member.

This procedure is fully laid out in the respondent's Standing Orders and it is common cause between the parties.

Also common cause between the parties is the fact, that, this procedure was never invoked in this matter.

The matter of the applicant's breach of privileges was never referred to the respondent.

The applicant accepts, that, the Speaker has disciplinary powers over Members of Parliament in terms of which he can order a member to leave the House for a full day.

In a moment of unintended levity, counsel for the applicant submitted, that, this power is used quite often against Honourable Members. Such power is not disputed.

Therefore, the legitimacy of the action by the Speaker, against the applicant, cannot be doubted.

If it is accepted, that, the disciplinary power of the Speaker over Members of Parliament is legitimate, which it must, then, it cannot be wished away into insignificance in his hands.

The Speaker's power cannot be negated by imputing it to the respondent. It remains conduct by the Speaker and must be given its full recognition at law.

It is in itself the wielding of administrative power and must be independently subject to judicial control.

The argument, that, the Speaker's such exercise of power is, at law, conduct by the respondent is therefore untenable.

(ii) Secondly, it stands to reason, that, where disciplinary authority is granted to two functionaries, not concurrently, but, on escalating thresholds, the exercise of the power by one cannot be imputed to the other in the absence of clear provisions to that effect.

My reading of the Standing Orders of the respondent do not show a basis upon which I can infer that the exercise of the power to punish Members of Parliament by the Speaker is to be regarded as conduct by the respondent and not by the Speaker, using his own discretion in the matter.

Counsel did not direct our attention to any provision in the Standing Orders from which such an inference can be drawn.

(iii) Finally, there is no basis, factually or legally, for finding that the respondent had any supervisory role over the Speaker in matters of the discipline of Members of Parliament.

There is thus no procedure by which the respondent could have ensured that the Speaker fully complied with the Standing Orders and limited his powers accordingly. The matter was never referred to the House for resolution.

It is therefore my finding, on the facts of the matter, that, the conduct complained of was that of the Speaker acting independently of the respondent. Put differently, it is my finding, that, the conduct complained of was not the conduct of the respondent and the jurisdiction of this court is accordingly not triggered.

In the hands of the Speaker, the decision to punish a Member of Parliament, under the Standing Orders, hardly qualifies as a constitutional obligation that would attract the attention of this Court.

Quite correctly, counsel did not so argue.

It is therefore idle to discuss whether this Court would still have had jurisdiction in the matter even if the conduct was correctly attributed to the Speaker.

In view of the finding that I make above, it is unnecessary that I proceed to determine whether the exercise of disciplinary power by the respondent, in terms of its Standing Orders, can amount to a constitutional obligation for the purposes of section 167(2)(d) of the Constitution.

This application turns, or rather falls, on the fact that the respondent did not act as alleged or at all.

Disposition

The jurisdiction of this Court not having been triggered, the matter must be struck off the roll.

No justification appears for the court to depart from the general position regarding the award of costs. None was pressed on us by the respondent. Accordingly, in line with the general position, no order as to costs shall be made.

In the result, I make the following order:

1. The matter is struck off the roll.

2. There shall be no order as to costs.

HH11-06 : ZAKEYO MEREKI vs BELL INN (PVT) LTD and MICHAEL BELINSKY and OFFICER COMMANDING MASHONALAND WEST
Ruled By: KAMOCHA J

On 30 November 2005, the first respondent, Bell Inn (Pvt) Limited, was granted a spoliation order by GOWORA J in the following terms:“INTERIM RELIEF GRANTEDPending determination of this matter, applicant is granted the following relief:1. That 1st respondent is directed to remove himself and property and all persons holding through ...

On 30 November 2005, the first respondent, Bell Inn (Pvt) Limited, was granted a spoliation order by GOWORA J in the following terms:

“INTERIM RELIEF GRANTED

Pending determination of this matter, applicant is granted the following relief:

1. That 1st respondent is directed to remove himself and property and all persons holding through him from Arden Estate within 24 hours of the date of service of this order.

2. The Deputy Sheriff is authorised to evict 1st respondent and all persons holding through him from the farm.

3. That 1st respondent is interdicted from interfering with applicant's farming activities.

4. That 2nd respondent is directed to give the necessary instruments to Nyabira police to render all necessary assistance to the Deputy Sheriff in implementing his order should 1st respondent offer any resistance thereto.

TERMS OF FINAL ORDER SOUGHT

1. That 1st respondent be interdicted from returning or visiting Arden Estate.

2. That 1st respondent pay the costs of application on a legal practitioner and client scale.”

In that case, Bell Inn (Pvt) Ltd, the first respondent in the present proceedings, was the applicant while Mr Zakeyo Mereki, the applicant in the present case, was the first respondent, and the Commissioner of Police was the third respondent.

On that same day, id est 30 November 2005, Zakeyo Mereki filed an application to suspend service of Bell Inn's application on himself. His application was heard in chambers on 5 December 2005 and judgment was handed down on 7 December.

The order that the court issued was as follows:

“TERMS OF RELIEF MADE

1. That the 2nd respondent be and is hereby ordered to suspend service of the order annexure “C” on the applicant.

2. That the applicant be and is hereby entitled to remain in occupation of subdivision 1 of Arden Estate in Zvimba District of Mashonaland West Province until the final determination of this matter and to carry on all farming activities which he was engaged in or intended to engage in consequent upon his right to occupation in terms of annexure “A” the letter dated 10th November 2005 from the acquiring authority.

TERMS OF ORDER SOUGHT

1. That the applicant be and is hereby declared to be the rightful occupier of No.1 Arden Estate in Zvimba District of Mashonaland West Province in terms of the offer letter annexure “A” dated 10th of November 2005.

2. That the 1st respondent be and is hereby ordered to cease occupation of the subdivision 1 of Arden Estate in Zvimba District of Mashonaland West Province.

3. That the 1st respondent pay the costs of this application.”

When Bell Inn's application was served on Zakeyo Mereki, on 2 December 2005, he had already filed the above application seeking to prevent the Deputy Sheriff from effecting service on him.

In the same application, Zakeyo Mereki was seeking for a declarator.

As already stated above, the court handed down the judgment on 7 December 2005 wherein it declared Zakeyo Mereki as the correct occupier of the disputed piece of land.

Two days later, Bell Inn filed a notice of appeal against that judgment.

Zakeyo Mereki, who is the respondent in the appeal, contended, that, the appeal was a nullity. Hence the order that he was granted remained operative. It could only have been suspended had the appeal been properly and validly noted against that judgment and order, so his contention went.

The appellant appealed against the granting of an interdict to the respondent.

The respondent argued, that, when an interdict is granted it was not appellable. It was only the refusal of an interdict which is appellable.

Counsel for the respondent argued this point at some length citing some South African authorities.

He concluded, that, the legal position on that point was as stated in the South African authorities and went on to submit, that, the appellant had misread the law.

It turned out, however, that it was him who had misread the law.

There was no need for the respondent to refer to foreign authorities when our statutes have the answer to the question that falls to be decided.

In casu, the answer lies in section 43(2)(d)(ii) of the High Court Act [Chapter 7:06] which recites that –

“(2) No appeal shall lie –

(a)…,.

(b)…,.

(c)…,.

(d) From an interlocutory order or interlocutory judgment made or given by a judge of the High Court, without the leave of a judge, if that has been refused, without the leave of a judge of the Supreme Court, except in the following cases -

(i)…,.

(ii) Where an interdict is granted or refused.”

Quite clearly, there was no need for the appellant to obtain leave of the judge in this matter.

Its appeal was properly and validly noted and it suspended the judgment and order handed down on 7 December 2005.

In this application, Zakeyo Mereki sought confirmation of the provisional order which the noting of an appeal suspended.

That is clearly untenable.

There is another issue in this application which is a cause for concern.

The applicant did not file a draft of the order that he sought. He merely stated what he was seeking at the conclusion of his founding affidavit.

As mentioned above, what he was seeking was the confirmation of the order which had been suspended by the noting of an appeal.

On realising that what he was seeking could not possibly be granted, he, a day after the hearing, then filed a draft order which was different from what he originally sought. This time around his interim relief read -

“TERMS OF RELIEF MADE

A(1) That the writ of execution issued by this Honourable Court, on the 5th of January 2005, be and is hereby set aside pending the confirmation or discharge of the order reflected in “B” below.

(2) That notwithstanding the noting of appeal in case no. HC6286/05 and this case, the Provisional orders be operative with immediate effect.”

This is completely new and was never addressed at the hearing in chambers.

The application was defective because it did not comply with the peremptory provisions of the rules of this court, in particular Rule 227(3), which reads -

“(3) Every written application shall contain a draft of the order sought."

The applicant did not seek condonation from the court for failure to file a draft order with the application.

When attention was drawn to this defect, all that the applicant's legal practitioner could say was that the applicant would have no problems with filing a draft order. He then went on to file a draft order which was totally unrelated to what was argued at the hearing.

The application also fails for failure to provide a draft of the order sought.

In conclusion, I hold that the application fails on two grounds:

(a) That the order in case No. HC6286/05 was suspended by noting of an appeal on 9 December 2005; and

(b) That the application was defective in that it had no draft order for which no condonation was sought for the failure to do so.

In the result, I would dismiss the application with costs.

CC03-21 : PRAYMORE MAKANDA vs MAGISTRATE SANDE N.O. and MAGISTRATE KADYE N.O. and MAGISTRATE NDIRAYA N.O. and THE STATE
Ruled By: GOWORA AJCC, HLATSHWAYO AJCC and PATEL AJCC

This is an application for direct access to the Constitutional Court made in terms of section 167(5)(a) of the Constitution of Zimbabwe. The allegation is that the conduct of the respondents violated the applicant's fundamental rights as enshrined in sections 69(1) and 70(1)(d),(e) and (f) of the Constitution.The BackgroundThe brief ...

The Background

The brief facts of the matter are as follows:

In 2017, the applicant was arraigned before the magistrates court at Harare facing charges of fraud as defined in section 136 of the Criminal Law (Codification and Reform) Act [Chapter 9:23]. Three separate trials were held before the first, second, and third respondents and he was convicted and sentenced to three separate terms of imprisonment.

It is the applicant's allegation, that, during the conduct of the trial proceedings, the first and second respondents violated his right to legal representation because they did not advise him of that right at the commencement of the trial.

This is alleged to be a violation of section 70(1)(d), (e) and (f) of the Constitution.

In the same respect, it is also alleged, that, the first and second respondents “failed to take heed to the laws governing the commencement of criminal trials” and therefore violated section 163A(1) and (2) of the Criminal Procedure and Evidence Act [Chapter 9:07] (the CP&E Act).

It is further alleged, that, such conduct infringed the applicant's right to a fair trial as entrenched in section 69(1) of the Constitution.

As regards the third respondent, it is averred, that, the magistrate did advise the applicant of his right to legal representation in terms of section 191 of the Criminal Procedure and Evidence Act, but, then failed to make an enquiry as to whether or not the applicant had understood those provisions.

This is said to have led to unfair proceedings in violation of sections 69(1) and 70(1)(d),(e) and (f) of the Constitution.

Allegations are also made against the fourth respondent in that it failed to assist the applicant in protecting his fundamental rights as aforementioned.

Consequent to these alleged violations, the applicant has approached this Court for relief.

The application is opposed by the fourth respondent.

It contends, that, the applicant has not demonstrated, that, it is in the interests of justice that he be granted direct access to the court. It is also argued, that, the mere reference to constitutional provisions does not mean that a constitutional matter has been raised.

It is important to note, that, the fourth respondent concedes that the proceedings before the first, second, and third respondents were irregular, but, nevertheless, avers that competent relief could have been granted by the High Court or the Supreme Court thus obviating the need to approach the court directly.

In fact, it is alleged that the applicant has since approached the High Court for relief under Case No. HC7066/20.

It is prayed that the application be dismissed as it is without merit....,.

Whether the matter is properly before the court

In casu, the circumstances of the case demand, that, an analysis of whether the matter is properly before the Court ought to be made before any enquiry into the merits.

In his founding affidavit, the applicant purports to bring the present application before the court in terms of section 167(5)(a) of the Constitution.

This is clearly irregular as such an application cannot be brought before the court in terms of that provision.

Section 167(5)a) of the Constitution provides as follows:

“(5) Rules of the Constitutional Court must allow a person, when it is in the interests of justice and with or without leave of the Constitutional Court —

(a) To bring a constitutional matter directly to the Constitutional Court;”

The above provision clearly makes reference to the Rules of the Constitutional Court in terms of which a litigant must approach the court. Section 167(5)(a) of the Constitution cannot be read as a standalone provision independent of other constitutional provisions and the Rules that it mentions.

As pointed out by GWAUNZA JCC in Prosecutor General, Zimbabwe v Telecel Zimbabwe (Pvt) Ltd 2015 (2) ZLR 422 (CC) at 425H:

“…,. Section 167 does not elaborate as to who, on what conditions, or how a party may approach the court for it to exercise the jurisdiction conferred upon it by that provision.”

The Court went further to explain the true status of the provision, at 426A:

“In order to give full effect to section 167(1), in relation to any constitutional matter sought to be brought before the court, the provision must be read in conjunction with the various provisions that do confer a right to approach the Constitutional Court, directly or indirectly, through another process.”

Whilst the above remarks were made in relation to section 167(1) of the Constitution, they apply with equal force to the circumstances in casu.

Section 167(5)(a) of the Constitution, in terms of which the applicant seeks to approach this Court, must be read together with other provisions of the Constitution and the Rules which were enacted to give effect to that provision.

In that regard, section 85(1) of the Constitution and Rule 21 of the Constitutional Court Rules are pertinent.

Section 85(1) of the Constitution provides as follows:

“85(1) Any of the following persons, namely -

(a) Any person acting in their own interests;

(b) Any person acting on behalf of another person who cannot act for themselves;

(c) Any person acting as a member, or in the interests of a group or class of persons;

(d) Any person acting in the public interest;

(e) Any association acting in the interests of its members;
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.”

Having regard to the above provision, it is apparent that the applicant ought to have approached the Court in terms of section 85(1) of the Constitution, claiming the vindication of his fundamental rights.

Section 167(5)(a) of the Constitution, in se, does not confer upon anyone the right to approach the Constitutional Court directly - even where there is a constitutional matter for determination.

It is also necessary to point out, that, the applicant has not attached a draft of the substantive application which he intends to place before the Constitutional Court should direct access be granted.

This is a requirement in terms of Rule 21(4) of the Constitutional Court Rules which provides as follows:

“(4) The applicant shall attach to the application a draft of the substantive application he or she seeks to file with the court.”

It is trite, that, generally speaking, the use of the word “shall” is indicative of the legislature's intention to make the provision under scrutiny peremptory or imperative rather than merely directory or permissive: see Shumba & Anor v The Zimbabwe Electoral Commission & Anor 2008 (2) ZLR 65 (S)…,.

The consequences of a failure to comply with a mandatory provision are explained by FRANCIS BENNION: Statutory Interpretation…, as follows:

“Where the relevant duty is mandatory, failure to comply with it invalidates the thing done. Where it is merely directory, the thing done will be unaffected (though there may be some sanction for disobedience imposed on the person bound).”

The applicant's failure to attach a draft of the substantive application that he intends to file with the court, should direct access be granted, is a clear violation of Rule 21(4) of the Rules.

In the absence of such a draft application, the court is severely hamstrung as regards the assessment of the merits of this application.

A determination of whether or not it is in the interests of justice to grant direct access is made impossible without the court having sight of that draft application.

Furthermore, and finally, the applicant's founding affidavit, in contravention of the peremptory provisions of Rule 21(3)(c) of the Constitutional Court Rules, does not indicate 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....,.

Disposition

Having considered the totality of the aforementioned circumstances apropos the present application itself, the inescapable conclusion is that it is fraught with fundamental irregularities and is therefore not properly before the court. The gravity of the irregularities marring the application precludes and obviates the need to assess and determine the merits thereof.

It is accordingly ordered, that, the application, being improperly before the court, be and is hereby struck off the roll with no order as to costs.

CC05-21 : RITA MBATHA vs CONFEDERATION OF ZIMBABWE INDUSTRIES and THE SHERIFF OF ZIMBABWE
Ruled By: GARWE AJCC, GOWORA AJCC and PATEL AJCC

This is an application for leave for direct access to the Constitutional Court made in terms of section 167(5) of the Constitution (“the Constitution”), as read with Rule 21(2) and (3) of the Constitutional Court Rules 2016 (“the Rules”).The application is opposed.FACTUAL BACKGROUNDThe applicant and the respondent were involved in ...

FACTUAL BACKGROUND

The applicant and the respondent were involved in a labour dispute which ultimately found its way before the Supreme Court. The Supreme Court found in favour of the applicant and ordered the respondent to pay the applicant an amount of USD41,161=30 as damages for unlawful dismissal.

Pursuant to the order, the applicant caused a writ of execution to be issued out for the attachment of the movable property of the respondent in satisfaction of the judgment. She instructed the second respondent to execute the writ.

Upon service of the writ, on 15 January 2020, the first respondent paid through RTGS the sum of 43,495=37.

Notwithstanding such payment, the applicant caused the seizure of the respondent's movable property which prompted the latter to seek a provisional order to stay the execution of the writ.

The applicant was undeterred.

On 7 July 2020, she caused the issuance of an additional writ, this time against the movable and immovable property of the respondent.

On 28 July 2020, an immovable property of the first respondent was attached in execution pursuant to the second writ. The second respondent was instructed to sell the property. The sale was scheduled to take place on 2 October 2020.

The first respondent reacted.

It filed an urgent court application seeking the setting aside of the second writ of execution and the consequential attachment of the immovable property. The applicant was given five days to respond to the application.

Due to an error, the matter was treated as an urgent chamber application instead of a court application and referred to a judge in chambers.

The applicant had not, at that stage, filed any papers in response.

There was also no proof on record that the first respondent had served the court application on the applicant as required by the rules of court.

At the time, the dies induciae stated on the application had not expired and the matter was removed from the roll for urgent chamber applications.

After correspondence from the first respondent, to the High Court, pointing out the errors, was received, the error was rectified and the parties filed their papers in accordance with the Rules.

The applicant had grievances on how papers of the application were served on her.

She filed several letters in the record raising issues on how the matter was being dealt with by the first respondent and the conduct of the matter by court officials.

The first respondent also requested audience with the judge to whom the matter had been assigned. The learned judge acceded and set a date for the parties to appear before her.

On 28 September 2020, the parties appeared before a judge of the High Court, in chambers, for a case management meeting to prepare a road map for the disposal of the matter.

During the meeting, the first respondent requested that the applicant agree to a postponement of the judicial sale of the immovable property. The applicant would not agree, resulting in the former making an oral application for the suspension of the sale in execution.

Pursuant to that meeting, an order in the following terms, was issued:

“IT IS ORDERED THAT:

1. First respondent to be served with applicant's answering affidavit and heads of argument forthwith.

2. The first respondent shall, if she so wishes, file her heads of argument on or before 5 October 2020.

3. The matter HC4380/20 be set down on 8 October 2020.

4. The writ of execution in SC119/19 be suspended pending the decision of the court in HC4380/20.

5. Costs of the stay in execution incurred by the second respondent pending the decision of the court in HC4380/20 shall be borne by the applicant.”

On 7 October 2020, the applicant filed this application for direct access to the Court.

She attached a copy of the main application she wishes to file under section 85(1) of the Constitution in which she alleges that her rights had been violated by the order granted by the court a quo.

THE LAW

The applicant intends to bring an application to the Court under section 85(1) of the Constitution alleging a violation of her fundamental rights as enshrined in section 56(1) of the Constitution.

She alleges that her right to protection of the law, under section 56(1) of the Constitution, was infringed by a judgment of the High Court issued on 28 September 2020.

Section 167(5) of the Constitution provides, that, rules of the court must allow a person, when it is in the interests of justice, with or without leave, to bring a constitutional matter to the Constitutional Court.

In turn, Rule 21 of the Constitutional Court Rules makes provision for the manner of bringing such application to the court.

Rule 21(2) of the Constitutional Court Rules requires that such application be supported by an affidavit setting out the facts upon which the applicant seeks relief.

The founding affidavit by the applicant, for direct access, does not set out any facts as required by Rule 21(2). Instead, the applicant incorporates her founding affidavit in the main application and the pleadings filed under Case No. HC4380/20.

Direct access is an extraordinary remedy that should only be granted in exceptional cases.

Rule 21(3) of the Constitutional Court Rules provides, in relevant part, 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.

(4) The applicant shall attach to the application a draft of the substantive application.”

As is evident from subrule (3)(c), the applicant should state in the affidavit whether the matter can be dealt with by the court without the need to hear oral evidence, or, if it cannot, how such evidence should be adduced and any conflict of facts resolved.

The applicant has not complied with this additional requirement.

In Zimbabwe Development Party v President of Zimbabwe CC03-18, the court said the following:

“The Rules set out the objective factors a litigant has to state in a chamber application for direct access for consideration by the Court or Judge in the determination of the question whether it is in the interests of justice to grant direct access. There must be filed with the Registrar, and served on all parties with direct or substantial interest in the relief claimed, an application setting out the grounds on which it is claimed it is in the interests of justice that direct access be granted.”

The view I take is, that, notwithstanding the omissions in the affidavit, this is a matter in which the court can reach a determination on the substance.

This is because the papers themselves, including the record from the High Court, clearly map out the events surrounding the order by the court a quo. In addition, the learned judge provided detailed reasons for the order made.

For that reason, it is my view, that, the failure to set out the facts, as required by Rule 21(2) of the Constitutional Court Rules does not disable the court from determining this matter.

CC06-15 : ANNA CHIHAVA and BOAS MAPUVA and ZISHE CHIZANI vs THE PROVINCIAL MAGISTRATE FRANCIS MAPFUMO N.O. and THE PROSECUTOR GENERAL
Ruled By: CHIDYAUSIKU CJ, MALABA DCJ, ZIYAMBI JCC, GWAUNZA JCC, GARWE JCC, GOWORA JCC, HLATSHWAYO JCC, GUVAVA JCC and CHIWESHE AJCC

This is an application in terms of section 85(1)(a) of the Constitution of Zimbabwe.The appellants allege that their constitutional rights, as enshrined in sections 70(1(b), 70(1)(d) and 70(1)(c), have been violated through the manner in which criminal proceedings against them were conducted in the Magistrates Court sitting at Chivhu.They seek ...

This is an application in terms of section 85(1)(a) of the Constitution of Zimbabwe.

The appellants allege that their constitutional rights, as enshrined in sections 70(1(b), 70(1)(d) and 70(1)(c), have been violated through the manner in which criminal proceedings against them were conducted in the Magistrates Court sitting at Chivhu.

They seek an order that the proceedings be quashed and a trial de novo ordered before a different magistrate.

IN LIMINE

The respondents raise a point in limine to the effect, that, the applicants are not properly before this Court.

They contend, that, the applicants should have approached this Court through a referral of the matter to it by the Magistrates Court in terms of section 175(4) of the Constitution. This is in view of the fact that the constitutional issue upon which the application is premised arose during the course of proceedings in the Magistrates Court.

It is not in dispute, that, the applicants took the opportunity availed by a postponement, granted by consent in the Magistrates Court proceedings, to approach this Court directly.

Section 175(4) of the Constitution reads as follows:

“Powers of courts in Constitutional Matters

“175(4) If a constitutional matter arises in any proceedings before a court, the person presiding over that court may, and, if so requested by any party to the proceedings, must, refer the matter to the Constitutional Court unless he or she considers the request merely frivolous or vexatious.”

It is the respondents contention, in light of this provision, that, the applicants failure to approach this Court in terms of section 175(4) of the Constitution was 'fatal' to the application.

Section 85(1) of the Constitution provides as follows:

“85 Enforcement of fundamental human rights and freedoms

(1) Any of the following persons, namely -

(a) Any person acting in their own interest;

(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 word “court” is not defined in section 332 of the Constitution, but, in the context in which it is used, appears to include the Constitutional Court.

It seems to me therefore, that, on a strict, literal reading of section 85(1)(a) of the Constitution, it could be argued, as the appellants briefly do in casu, that, beyond what is expressly stated therein, the wording does not place any restrictions on the type of person who may approach the Constitutional Court directly.

Firstly, the section is not prefixed with the words 'subject to…; or 'save as otherwise provided in terms of…,.'

These phrases are normally used in legislative drafting parlance to indicate that the provision in question does not have unfettered application but is to be applied only to the extent that it does not contradict the specific other provisions mentioned.

This is clearly not the case in casu.

Secondly, the applicants are clearly acting in their own interest, and are alleging a violation of their fundamental rights.

Thirdly, and more specifically, it could be argued, that, section 85(1) of the Constitution does not expressly exclude a direct approach to this Court where the violations alleged were perpetrated in the course of proceedings in a lower court.

This situation is to be contrasted with some provisions of section 24 of Zimbabwe's old Constitution, which effectively are the precursor to some parts of both sections 85 and 175 of the current Constitution.

Section 24 read as follows in relevant parts:

“24. Enforcement of protective provisions

(1) If any person alleges that the Declaration of Rights has been, is being or is likely to be contravened in relation to him (or, in the case of a person who is detained, if any other person alleges such a contravention in relation to the detained person), then, without prejudice to any other action with respect to the same matter which is lawfully available, that person (or that other person) may, subject to the provision of subsection (3), apply to the Supreme Court for redress.

(2) If, in any proceedings in the High Court, or in any court subordinate to the High Court, any question arises as to the contravention of the Declaration of Rights, the person presiding in that court may, and if so requested by any party to the proceedings, shall refer the question to the Supreme Court unless, in his opinion, the raising of the question is merely frivolous or vexatious.

(3) Where in any proceedings such as are mentioned in subsection (2) any such question as is therein mentioned is not referred to the Supreme Court then, without prejudice to the right to raise that question or any appeal from the determination of the court in those proceedings, no application for the determination of that question shall lie to the Supreme Court under subsection (1).”…,.

In interpreting section 24(3) and its effect, a number of authorities ruled, that, it rendered the provisions of section 24(2) mandatory. In other words, any constitutional issue that arose during proceedings in a lower court, had to be referred to the Supreme Court (sitting as a Constitutional Court) in terms of section 24(2).

Section 175(4) of the current Constitution is an exact replica of the old section 24(2).

It was, for instance, held by MALABA JA…, in Tsvangirai v Mugabe and Anor 2006 (1) ZLR 148 (S) as follows;

“It is the duty of the party who wants a question as to the contravention of the Declaration of Rights arising in the proceedings in the High Court, or in a court subordinate to it, referred to the Supreme Court for determination, to ensure compliance with the provisions of section 24(2). The requirement to comply with the procedure prescribed thereunder is made mandatory by the provision of section 24(3).”

In the earlier case of Jesse v Attorney General 1999 (1) ZLR 121 (S), GUBBAY CJ…, had similarly stated as follows;

“Put differently, the question is whether an applicant may, during the course of proceedings in the High Court, as in any court subordinate to it, simply ignore the provisions of section 24(2), and utilise the procedure laid down in section 24(1). I entertain not the slightest doubt that the resort by the applicant to section 24(1) of the Constitution was impermissible.”

GUBBAY CJ went on to dismiss the application before him, for contravening section 24(3) of the Constitution.

It is thus evident, that, the application in casu would have been declared impermissible, and/or been dismissed, had it been brought in terms of the old section 24(1).

It should be noted, however, that, in the case of Martin v A-G & Anor (1993) (1) ZLR 153 (S) it was held, that, an exception to this general rule would arise in the situation where a lower court denied an application for referral in terms of section 24(2) of the old Constitution, for reasons other than those permitted under section 24.

See also Mukoko v Commissioner General of Police & Others 2009 (1) ZLR 21 (S).

In that case, the refusal to refer the matter to the Supreme Court was found to have been premised on a misunderstanding, by the Magistrates Court, of the meaning of the phrase 'frivolous or vexatious'. The court held, that, in such circumstances, the unsuccessful applicant was entitled to approach the Supreme Court directly in terms of section 24(1).

While this is not the situation that the case at hand is concerned with, it is nevertheless pertinent to note, that, an applicant, such as the one in Martin v A-G & Anor (1993) (1) ZLR 153 (S), would have had to initially make his application for referral to a lower court.

The last argument that could conceivably have been raised against a finding that the application in casu should suffer the same fate is that, despite subsection 175(4) repeating word for word, section 24(2) of the old Constitution, the section that followed it, that is section 24(3), was not similarly imported into section 175 of the current Constitution.

This is the subsection that the authorities cited above interpreted as outlawing a direct approach to the Supreme Court. In addition to this, reference to the same subsection, in the old section 24(1) also failed to find its way into the new Constitution.

The sum total of all this, it appears to me, could be interpreted as evincing an intention, by the Legislature, to remove completely any “bar” that an applicant in terms of section 24(1) might have confronted, arising from the fact that the constitutional issue in point arose during proceedings in a lower court.

It could further be interpreted as creating the impression, that, the options for redress that were open to an applicant envisaged in the old sections 24(2) (now section 175(4)) and 24(3) have been widened.

The critical questions that then arise, against this background, are:

1. Has the absence of restrictive provisions in both section 85 and section 175(4) (particularly the former), opened the door very widely, and given unfettered, direct access to the Constitutional Court, to any person who claims an existing, current, or impending violation of their constitutionally guaranteed fundamental rights?; and

2. Was this the intention of the Legistature?

These questions, in my view, can only be answered on a proper consideration of relevant rules governing the interpretation of statutes, generally, and of the Constitution in particular.

In this respect, it is pertinent to note, that, a Constitution is itself a statute of Parliament. Therefore, any rules of interpretation that are regarded as having particular relevance in relation to constitutional interpretation, can only be additional to the general rules governing the interpretation of statutes.

The starting point, in relation to the interpretation of statutes generally would be what is termed 'the golden rule' of statutory interpretation. This rule is authoritatively stated thus in the case of Coopers and Lybrand & Others v Bryant 1995 (3) SA 761 (A)…,.;

“According to the 'golden rule' of interpretation, the language in the document is to be given its grammatical and ordinary meaning, unless this would result in some absurdity or some repugnancy or inconsistency with the rest of the instrument.”…,.

In his book 'Principles of Legal Interpretation - Statutes, Contracts and Wills' 1st Ed. At page 57, E A KELLAWAY echoes this statement as follows:

“The dominating Roman-Dutch law principle is that an interpretation which creates an absurdity is not acceptable (that is 'interpretatio quae parit absurdum non est admittenda): see, among other authorities, Exparte Fourie 1962 (3) SA 614 (O); S v Nyathi 1978 (2) SA 20 (B); and Canca v Mount Free Municipality 1984 (2) SA 870 (TK) 833).”

The learned author, at page 62, further states:

“Even if a (South African) court comes to the conclusion that the language is clear and unambiguous, it is entitled to reject the purely literal meaning if it is apparent from the anomalies which flow therefrom that the literal meaning could not have been intended by the legislature.”…,.

Apposite to the circumstances of this case, the learned author, after considering a number of authorities, makes the following remarks at page 61:

“While it is not permissible to speculate as to the purpose of an enactment, the legislative purpose may be sought from the subject matter of the Act, the enacting clauses in the whole enactment, the state of the law before the enactment was passed, and the surrounding circumstances: see Hunter v R 1907 TS 910; Dadoo Ltd v Krugersdorp Municipal Council 1920 AD 530;”…,.

And, lastly, at page 293, in reference to the maxim 'in pari materia' the learned author states:

“According to Roman-Dutch law, a later enactment not clear as to its meaning, which has analogous provisions with regard to, or clauses corresponding with, an earlier enactment, and particularly where the later enactment deals with the same subject matter, should, where feasible, be so interpreted that both provisions cohere, so that the contents of the earlier one can throw light on the later, unclear provision: see, among other authorities, Brink v Alfred McAlpine & Sons South Coast Regional Rent Board 1971 (1) SA 741 (A); Durban City Council v Shell and BP SA Petroleum Refineries (Pty) Ltd 1971 (4) SA 466.”

The principles set out in the dicta cited above can aptly and instructively be summarized as follows:

(i) The Legislature is presumed not to intend an absurdity, ambiguity, or repugnancy to arise out of the grammatical and ordinary meaning of the words that it uses in an enactment.

(ii) Therefore, in order to ascertain the true purpose and intent of the Legislature, regard is to be had, not only to the literal meaning of the words, but also to their practical effect.

(iii) In this respect -

(a) The words in question must be capable of an interpretation that is 'consistent' with the rest of the instrument in which the words appear;

(b) The state of the law in place before the enactment in question is a useful aid in ascertaining the legislative purpose and intention; and

(c) Where an earlier and later enactment (or provision) deals with the same subject matter, then, in the case of uncertainty, the two should be interpreted in such a way that there is mutual consistency.

Turning now to the additional considerations that are particular to the interpretation of the Constitution, I find the following dictum from the Namibian case of Minister of Defence, Namibia v Mwandinghi 1992 (2) SA 355 (Nm) to be both apposite and instructive;

See also, among others, Rattigan v Chief Immigration Officer & Others 1994 (2) ZLR 54 (S); Capital Radio (Pvt) Ltd v Broadcasting Authority of Zimbabwe 2003 (2) ZLR 236.

“…, The whole tenor of Chapter 111 (of its Constitution) and the influence upon it of international human rights instruments from which many of its provisions were derived, call for a generous, broad, and purposive interpretation that avoids the austerity of tabulated legalism.”…,.

These remarks are echoed in the following summation by the learned author EA KELLAWAY 'Principles of Legal Interpretation - Statutes, Contracts and Wills' 1st Ed…,.;

“The principle of interpretation of a state's Constitution, incorporating a bill of rights, may be stated thus:

An interpreter should follow the submitted triple synthesis of literalism, intentionalism, and purposiveness principle, as is done in the interpretation of any other statute….,.”

Thus, while a Constitution is to be interpreted in accordance with the rules relating to statutes, generally, the authorities suggest, that, a court called upon to interpret such a Constitution should give a generous and purposive construction to its provisions, particularly the entrenched fundamental rights and freedoms.

It appears to me, that, in this process, the purpose of the provision in question is to be given particular attention.

When all this is applied to the circumstances of this case, there is, in my view, no gainsaying the fact, that, a literal and grammatical meaning ascribed to section 85(1) would be inconsistent with section 175(4) of the Constitution.

This is to the extent, that, such meaning would give room to litigants, in proceedings underway in a lower court, to abandon such proceedings midstream, and, without any ceremony, in order to approach the Constitutional Court directly in terms of that section.

Such a meaning would thus introduce an absurdity and possible chaos to a process, that, in terms of the more expansive section 24 of the old Constitution, was free of such anomalies.

It is evident, that, the purpose of the old section 24, and, in particular, subsections (1) (2) and (3), was to inject order and certainty into the process by which constitutional issues arising during proceedings before the lower courts, were referred to the Constitutional Court order in the sense, that, the lower court had the opportunity to call and hear evidence on, and consider, the issue so as to determine whether it is not frivolous or vexatious.

Only then did the court refer the issue to the Constitutional Court.

Through this process, the Constitutional Court was shielded from a situation where frivolous and undeserving cases might have been directly brought to it.

There was certainty in the process in that the lower court, where it referred the matter, was fully informed as to both the reason for, and the effect of, such referral. The effect would be a formal deferment of the proceedings in that court, pending a Constitutional Court determination of the issues referred to it. More importantly, the risk of parallel proceedings being pursued in the Constitutional and the lower courts, on different aspects of the same case, but based on the same facts, was obviated.

It should be noted, that, the case at hand is an example of the absurdity that may arise from a strict, literal construction of section 85(1) of the Constitution.

The proceedings in the Magistrates Court were postponed by consent of the parties. The next thing that happened was a direct application to this Court, in which aspects of those proceedings are being impugned.

There is nothing on the record to suggest that the Magistrates Court was made aware of this development, or, if so, through what procedure and to what effect.

It may therefore be safe to assume, that, the lower court is still in the dark in this regard.

Further to this, it appears from the facts of the case, that, evidence should have been led in the lower court to enable the magistrate to determine whether or not the case merited a referral to the Constitutional Court.

The end result is that the latter court is seized with a matter that might not only have required viva voce evidence to be led, but may, for all intents and purposes, have been ruled frivolous or vexatious by the magistrate.

This Court is not able to call and hear viva voce evidence from the parties, and would thus be handicapped in terms of properly determining the matter.

I therefore entertain no doubt, that, the certainty order referred to above would be completely eroded were the courts to operate on the basis of a literal and grammatical interpretation of section 85(1) of the Constitution.

This circumstance is not only highly undesirable, it would also constitute an affront to the time honoured common law principle, that, a superior court should be slow to intervene in ongoing proceedings in an inferior court - except in exceptional circumstances.

This principle is persuasively articulated as follows in the case of Wahlhaus v Additional Magistrate, Johannesburg 1959 (3) SA 113 (A):

“…,. A superior court would be slow to exercise any power upon the unterminated course of criminal proceedings in a court below, but, would do so in rare cases where grave injustice might otherwise result or where justice might not, by other means, be attained.”

It seems to me, that, the ratio in the cases of Tsvangirai v Mugabe and Anor 2006 (1) ZLR 148 (S) and Jesse v Attorney General 1999 (1) ZLR 121 (S)…, was a re-affirmation of this principle, and that it found fortification in section 24(3) of the old Constitution.

Despite this 'fortification' not having found its way into the new Constitution, I am satisfied that the basic principle remains.

It is, in any case, trite that, a statute should, where possible, be construed in conformity with the common law rather than against it, except where the statute is clearly intended to alter the common law: see Johannesburg Municipality v Cohen's Trustees 1909 TS 811.

I do not find anything in the wording of section 85(1(a) of the Constitution that could be said to evince an intention to oust common law on the issue in point.

Sections 85(1) and 175(4) of the current Constitution and section 24 of the old Constitution, all deal with the same subject matter; that is, the methods by which matters may be brought to the Constitutional Court.

To that extent, I am satisfied no basis exists for interpreting the later provisions in such a way that they do not 'cohere' with the earlier provisions.

In other words, the provisions of the old section 24 should be taken as 'throwing light' on the provisions of section 85(1)(a) and 175(4) of the current Constitution.

I find, when all is told, that, the above expose and analysis of the law and authorities on statutory interpretation clearly favour a finding, in casu, that it was not the intention of the Legislature to oust a procedural regime that ensured order and certainty in the administration of justice in the courts, and to introduce in its place, one that would result in absurdity, disorder, and ambiguity.

Clearly, the anomalies that would flow from a literal meaning of section 85(1)(a) could not have been intended by the Legislature.

Consequently, and, except in circumstances akin to those in Martin v A-G & Anor 1993 (1) ZLR 153 (S), any constitutional issue that arises during proceedings in a lower court ought to and must be brought to this court only upon referral in terms of section 175(4) of the Constitution.

It follows from this, that, the instant application is not properly before this Court.

In the final result, I find that the point in limine raised by the respondents has merit and ought to be upheld.

In the result, it is ordered as follows:

1. The point in limine raised by the respondents be and is hereby upheld.

2. The application is struck off the roll.

3. There shall be no order as to costs.

Appealed
CC07-21 : MARX MUPUNGU vs MINISTER OF JUSTICE, LEGAL AND PARLIAMENTARY AFFAIRS and OTHERS
Ruled By: GWAUNZA ACJ, GARWE JCC, MAKARAU JCC, GOWORA JCC, HLATSHAWAYO JCC, PATEL JCC and GUVAVA AJCC

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 ...

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....,.

Absence of Leave to Sue Respondent Judges

It is common cause, that, before instituting proceedings in the court a quo, the third respondent herein did not seek and obtain leave to sue the second to the eighteenth respondents in that matter, who were, at that time, the Chief Justice, Deputy Chief Justice, Acting Judges of the Constitutional Court, Judges of the Supreme Court and Acting Judges of the Supreme Court.

The court a quo reasoned, that, such leave to sue was unnecessary for a variety of reasons:

(i) The first was that the relevant rule of court only applied to actions instituted by way of summons and not to application proceedings.

(ii) The second was that the applications before the court were made in terms of section 85 of the Constitution and there was no requirement for leave to be granted in an application made in terms of that section.

(iii) Lastly, the court opined, that, the respondents in question were cited in their official capacities and had not filed any opposing papers challenging their citation without leave.

In the event, the court found, that, the failure to obtain the leave of the court to sue the judges in question did not nullify or render the entire proceedings fatally defective.

Rule 18 of the High Court Rules 1971 stipulates as follows:

“No summons or other civil process of the court may be sued out against the President or against any of the judges of the High Court without the leave of the court granted on court application being made for that purpose.”…,.

It is not in dispute that both the Chief Justice and the Deputy Chief Justice are also judges of the High Court by operation of section 170(a) of the Constitution.

In my view, it must also be accepted, that, Rule 18 of the High Court Rules applies as well to judges of the Supreme Court by dint of Rule 73 of the Rules of the Supreme Court 2018.

The latter Rule provides, that, in any matter not dealt with in the Rules of the Supreme Court, the practice and procedure of that court shall follow, as closely as may be, the practice and procedure of the High Court in terms of the High Court Act [Chapter 7:06] and the High Court Rules.

Thus, any suit lodged in the Supreme Court against a judge of that court would be subject to the grant of leave to sue in accordance with Rule 18 of the High Court Rules, as applied, by extension, to the practice and procedure of the Supreme Court.

That being so, it would be highly illogical and irregular if a suit instituted in the High Court, against a judge of the Supreme Court, were to be excluded from the protective ambit of Rule 18 of the High Court Rules.

Having regard to the purpose underlying Rule 18 of the High Court Rules, viz. to shield and safeguard judges against frivolous or vexatious litigation, it seems to me, that, the Rule must perforce be extended and construed so as to embrace and protect all judges of the superior courts, in addition to judges of the High Court, irrespective of the court in which they may be sued.

At the relevant time, the fourth to the eighteenth respondents in the proceedings a quo were substantive judges of either the Supreme Court or the High Court.

It follows that Rule 18 of the High Court Rules would have been applicable to any “summons or other civil process…, sued out against” the second and third respondents as well as the fourth to the eighteenth respondents in the proceedings a quo.

Counsel for the fourth and fifth respondents defends the stance taken by the third respondent, qua applicant a quo, and the position adopted by the court a quo in that regard.

He submits, that, an application made under section 85 of the Constitution does not require leave to sue any judge in terms of Rule 18 of the High Court Rules. He relies for this proposition on the decision in Zimbabwe Lawyers for Human Rights & Anor v President of the Republic of Zimbabwe 2000 (1) ZLR 274 (SC).

Rule 18 of the High Court Rules is designed to avoid frivolous or vexatious suits against sitting judges or the President and this aspect, so he argues, is already catered for in section 85 of the Constitution.

Counsel for the fourth and fifth respondents accepts, that, the court a quo did not address or consider whether the citation of the judges was frivolous or vexatious. However, so he contends, the consideration of that question was not necessary or relevant given the relief that was sought from the High Court.

As against this, Mr Zhuwarara, the amicus curiae, distinguishes the decision in Zimbabwe Lawyers for Human Rights & Anor v President of the Republic of Zimbabwe 2000 (1) ZLR 274 (SC) on the basis, that, the judgment in that case did not relate to section 85 of the Constitution but turned on the absence of any equivalent to Rule 18 of the High Court Rules in the Supreme Court Rules that were in force at that time.

He submits, that, the rationale behind Rule 18 of the High Court Rules is to protect the President and sitting judges against frivolous and vexatious proceedings.

He further relies upon Nicolle v Minister of Lands & Anor 2003 (1) ZLR 280 (H) for the submission, that, the intention behind Rule 18 is that leave to sue must be sought and obtained first before proceedings are filed for substantive relief against a judge.

Before valid proceedings could eventuate in the matter a quo, it was imperative that a separate application be instituted beforehand to obtain leave to sue the judges concerned.

Consequently, the decision of the court a quo was a nullity because the court proceeded without regard to Rule 18 of the High Court Rules, and, therefore, lacked the necessary jurisdiction to deal with the matter.

This renders the proceedings a quo susceptible to summary negation by this Court for want of jurisdiction.

Accordingly, so it is argued, there is no need for this Court to relate to the merits of the present disputation.

As there were no valid proceedings a quo, it follows, that, the constitutional issues therein were improperly determined. Therefore, this Court, employing its supervisory review powers, should set aside the impugned orders a quo and substitute them with an order dismissing the application for want of leave to institute proceedings.

Counsel for the applicant agrees, that, the court a quo misdirected itself in finding that Rule 18 of the High Court Rules does not apply to applications but only to actions by way of summons. This was contrary to the rationale of Rule 18.

Although the court took the view that the judges were sued in their official capacity, the substance of the suit was against the judges in their personal capacity. Consequently, the proceedings a quo were a nullity for want of jurisdiction.

Nevertheless, counsel for the applicant submits, that, the matter should not end there.

This is because the substance of the present proceedings is fundamental to the integrity of the Constitution and the meaning of section 186(4) of the Constitution must be pronounced upon.

Because of the effect of the orders a quo on the application of section 186(4) of the Constitution, there must be a decision by this Court to ensure finality in this matter.

This is so despite the nullity of the proceedings a quo.

As I have explained earlier, the court a quo rejected the objection to its assumption of jurisdiction on three grounds:

(i) That Rule 18 of the High Court Rules did not apply to applications;

(ii) That there was no requirement for leave to sue to be granted in applications under section 85 of the Constitution; and

(iii) That the respondents in question were cited in their official capacities only.

For the reasons set out below, I am of the view, that, the court a quo manifestly misdirected itself in all three respects.

Dealing, firstly, with the last aspect, there can be no doubt that the second to the eighteenth respondents a quo were cited nomine officio, i.e. in their official capacities.

However, it is equally evident that those respondents were cited on the basis, that, they would or might benefit personally, either immediately or in the indeterminate future, from the amendments to section 186 of the Constitution.

In any event, the court a quo nonetheless proceeded to issue two distinct declarators:

(a) The first declared, that, the second respondent, the incumbent Chief Justice, ceased to hold office by operation of law.

(b) The second declared, that, the extension of judicial tenure provided for in section 186 of the Constitution did not apply to the second to the fourteenth and the eighteenth respondents. (The exclusion of the fifteenth, sixteenth and seventeenth respondents from the latter declaratur appears to have been premised on the finding, that, they were High Court judges who were “just acting judges” of the Constitutional Court and/or the Supreme Court).

It is abundantly clear, that, the substantive impact of both declarators had a definitive impact on the rights and interests of the respondents in question.

Accordingly, although they were cited in their official capacities, they were substantively affected by the orders of the court a quo in their personal capacities. This serves to fortify the point, that, leave to sue them should have been obtained before they were cited in the proceedings a quo.

As regards the scope of Rule 18 of the High Court Rules, the court a quo patently mis-interpreted the provisions of that Rule.

There is absolutely nothing in the wording of Rule 18, or any other Rule, to justify the purported distinction between actions by way of summons on the one hand and suits by way of application on the other.

Nor is there anything in Rule 18 of the High Court Rules to support the curtailment of the obvious breadth of the phrase “other civil process” so as to exclude applications from its scope of coverage.

This finding is reinforced by having regard to the rationale behind the Rule, to wit, to shield the Head of State as well as judges from being harassed by frivolous or vexatious claims: see Gluck v The Governor 1947 SR 143…, cited with approval in Zimbabwe Lawyers for Human Rights & Anor v President of the Republic of Zimbabwe 2000 (1) ZLR 274 (SC)…,.

This is an aspect that the court a quo pointedly overlooked in determining the preliminary objection before it.

It thereby failed to properly exercise its discretion in the matter.

If it had applied its mind to the question, it would undoubtedly have found, that, the blanket citation of all the sitting judges of the Constitutional Court and Supreme Court was nothing less than deliberate and gratuitous vexation.

I now turn to examine the proposition which was advanced by the applicants a quo, and endorsed by the court a quo, to the effect, that, there is no requirement for leave to sue to be granted in an application made in terms of section 85 of the Constitution.

The judgment of the full bench of the Supreme Court in Zimbabwe Lawyers for Human Rights & Anor v President of the Republic of Zimbabwe 2000 (1) ZLR 274 (SC) appears to support this position.

In considering the provisions of section 24 of the former Constitution (the precursor to section 85 in the current Constitution), GUBBAY CJ stated as follows…,.:

“The fundamental purpose behind section 24(1) of the Constitution is to afford anyone who has lawful cause for complaint to come directly before the Supreme Court. Yet, the right to do so is subject to certain in-built limitations.

First, where the question as to a contravention of the Declaration of Rights was not referred by the High Court, or a court subordinate to the High Court, in terms of section 24(2), no application for the determination of such question will lie to the Supreme Court under subsection (1).

Second, the Supreme Court, in the exercise of its original jurisdiction, may, by virtue of section 24(4)(a), determine, without a hearing, any such application, which, in its opinion, is merely frivolous or vexatious….,.

This stricture is a sufficient protection against the possibility of harassment being caused to the cited respondent. Where, therefore, the relief claimed is against the office of the President, the aim of Rule 18 is recognised and implemented in subsection (4)(a).

Third, in accordance with the proviso to section 24(4), the Supreme Court may, in the exercise of its discretion, decline to entertain an application under section 24(1), or a referral under section 24(2), if satisfied that adequate means of redress for the contravention alleged are or have been available to the person concerned under other provisions of the Constitution or under any other law….,. This is precisely the same consideration material to an application for leave under Rule 18.”

The first inbuilt limitation referred to above is not directly relevant in casu, but, the second and third limitations are obviously pertinent.

They demonstrate, that, section 24(4) of the former Constitution contained specific safeguards against any direct application that was merely frivolous or vexatious or which could be resolved through the availability of other adequate means of redress. These safeguards rendered it unnecessary to invoke Rule 18 of the High Court Rules or any equivalent provision in any matter involving an application made under section 24(1) of the Constitution.

Turning to section 85 of the current Constitution, one finds, that, it does not incorporate any similar safeguards against applications that are afflicted with frivolity or vexatiousness or which are susceptible to resolution through alternative remedies.

What this means is that the application of Rule 18 of the High Court Rules, or any other equivalent, is not rendered unnecessary or redundant in the context of section 85 of the Constitution.

Therefore, the contention that there is no need for leave to sue in an application in terms of section 85 of the Constitution, because it is already catered for in that provision, is patently erroneous.

It follows, that, the decision in Zimbabwe Lawyers for Human Rights & Anor v President of the Republic of Zimbabwe 2000 (1) ZLR 274 (SC), predicated on a provision which is materially different in certain respects from the present section 85 of the Constitution, is clearly distinguishable and inapplicable in casu.

It also follows, that, the requirement of prior leave to sue, stipulated by Rule 18 of the High Court Rules, remains fully operative and enforceable in relation to any application made in terms of section 85 of the Constitution.

Additionally, it is necessary to underscore the point that access to this Court or any subordinate court under section 85 of the Constitution is subject to regulation by rules of court. This is made explicitly clear by section 85(3) which dictates that the rules of every court must provide for the procedure to be followed in cases where relief is sought under section 85(1). It is also spelt out in section 167(5) of the Constitution vis-a-vis direct access to the Constitutional Court.

One cannot institute an action or application in the High Court, or any other court, without due observance of and compliance with the Rules of that court.

The Rules inform a litigant of what is required of him to access the court concerned. If he fails to observe or comply with those Rules, he will inevitably be non-suited.

To conclude this aspect of the matter, I am satisfied, that, the proceedings a quo were fatally defective and constitute a nullity for failure to comply with Rule 18 of the High Court Rules and consequential lack of jurisdiction by the court a quo.

That, however, does not signal the end of the matter.

The question that remains is whether or not, despite the nullity of those proceedings, this Court should nevertheless proceed to canvass the merits of the application before us.

I am of the considered opinion, that, it is necessary for the Court to address and determine the merits of the application for the following very compelling reasons:

(i) First and foremost, it cannot be disputed, that, the matter is one of paramount public importance.

Whether or not the incumbent Chief Justice should continue in office to perform the functions of that office for a further 5 years is undoubtedly a question of critical public significance. The publicity surrounding that question bears ample testimony to that fact. By the same token, it is equally important that the possible extension of tenure availed to other senior judges by section 186 of the Constitution be resolved in order to obviate future controversy in that regard.

The obvious objection is that the substantive correctness of the judgment a quo is currently pending before the Supreme Court on appeal from the court a quo.

In my view, however, the pendency of that appeal, and the possibility of its being pre-empted should not detract from the over-arching supervisory jurisdiction of this Court, by virtue of section 167(3) of the Constitution, in critical constitutional matters.

Ultimately, it is this Court that makes the final decision as to whether or not any law or conduct of the President or Parliament is constitutional. And, it is this Court that must confirm any order of constitutional invalidity made by another court before that order has any force or effect.

In exercising its jurisdiction under section 175(3) of the Constitution, the Constitutional Court is not confined to purely procedural or preliminary issues that may arise for determination. In confirmation proceedings, the Constitutional Court is duty-bound to adjudicate all the relevant issues. These include not only the procedural propriety of the proceedings a quo, but, also, more importantly, the juridical correctness of the substantive findings of the subordinate court.

Moreover, section 176 of the Constitution endows this Court with the inherent power to protect and regulate its own process, taking into account the interests of justice and the provisions of the Constitution.

In all the circumstances, I am of the firm view, that, this Court should proceed to address and determine the merits of this matter, not only in order to bring it to finality but also in the interests of justice.

CC09-21 : GIFT KONJANA vs DEXTER NDUNA
Ruled By: GARWE AJCC, GOWORA AJCCand HLATSHWAYO AJCC

This is an opposed application for leave to appeal against a decision of the Supreme Court (“the court a quo”) made in terms of section 167(5)(b) of the Constitution as read with Rule 32(2) of the Constitutional Court Rules 2016 (“the Rules”).FACTUAL BACKGROUNDThis application emanates from an election petition lodged ...

FACTUAL BACKGROUND

This application emanates from an election petition lodged with the Electoral Court to nullify the election of the respondent and to declare the applicant as a duly elected Member of Parliament for Chegutu West.

The background to the matter is that in July 2018 the applicant took part in a parliamentary election in Chegutu West in which the respondent was declared the winner by 10,932 votes as opposed to 10,828 votes attributed to the applicant. The applicant lodged a complaint with the Zimbabwe Electoral Commission (ZEC) District Elections Officer challenging the results of that election on the basis that ZEC had made mistakes in collating and verifying the results.

The mistake was apparently admitted by the Zimbabwe Electoral Commission (ZEC).

On 10 August 2018, the applicant filed a petition in the Electoral Court seeking the correction of the erroneous declaration. The Electoral Court held, that, the petition fell foul of the peremptory requirements of Rule 21 of the Electoral (Applications, Appeals and Petitions) Rules 1995 which sets out certain peremptory requirements pertaining to the form and content of an election petition.

The applicant had brought the petition on notice and the court held, that, the form and content of the petition did not comply with Rule 21 of the Electoral (Applications, Appeals and Petitions) Rules 1995, rendering it fatally defective. The court found, that, the applicant had failed to present his case in the proper format required by law and there was therefore no valid petition before the court. The petition was accordingly dismissed.

The applicant noted an appeal to the court a quo:

(i) Firstly, he averred that the petition was not fatally defective for having been brought on notice as section 169 of the Electoral Act [Chapter 2:13] made such notice mandatory.

(ii) Secondly, he contended, that, the Electoral Court could have condoned non-compliance with its rules as section 17(9) of the Electoral Act vests the court with such competence to condone.

(iii) Lastly, he contended, that, the court failed to consider the merits of the petition despite the Zimbabwe Electoral Commission (ZEC) having acknowledged the error that resulted in the undue return complained against.

Before the matter was heard, the respondent gave written notice of a preliminary objection in the proceedings.

He averred, inter alia, that the court a quo was barred from adjudicating the appeal on account of section 182(2) of the Electoral Act which requires an election appeal to be disposed of within 3 months. He contended that once the prescribed period of 3 months expired, the court has no jurisdiction to entertain the matter.

Per contra, the applicant submitted, that, section 182 of the Electoral Act did not operate to bar the court from determining the appeal since the applicant had already filed process and the matter was pending. His argument was to the effect that the provision was not intended to non-suit a litigant who was already before the court.

The court a quo held, that, it is a petitioner who is dominus litis in an election petition and that it is he or she who ought to seek directions as envisaged by section 182 of the Electoral Act and should be especially vigilant in monitoring and managing the progress of their own cases in order to meet the stipulated time limits. It further found, that, the 3 months period stated in section 182 of the Electoral Act was mandatory and could not be exceeded under any circumstances.

As a result, the respondent's point in limine, challenging the continued adjudication of the appeal beyond the time limit prescribed by section 182(2) of the Electoral Act was sustained and the appeal was removed from the roll.

Aggrieved by that finding, the applicant filed the present application on 15 April 2021.

The respondent opposed the application and argued, in limine, that the applicant used the wrong form in that he filed a chamber application when he ought to have lodged an ordinary application according to Rule 32(2) of the Constitutional Court Rules.

He further averred, that, the applicant could not properly appeal against the decision of the court a quo because the decision did not turn on a constitutional issue, and, lastly that the matter has no prospects of success.

APPLICANT'S SUBMISSIONS BEFORE THIS COURT

Counsel for the applicant argued, that, two questions arose for determination and these related to:

(i) Whether the applicant was raising a constitutional matter; and

(ii) Whether section 182(1) of the Electoral Act is directory rather than mandatory.

Counsel submitted, that, there was no doubt that he sought to raise a constitutional issue and that it was in the interests of justice to approach the Constitutional Court because the Supreme Court interpreted section 182(2) of the Electoral Act in a manner which made it constitutionally non-compliant.

His argument was to the effect, that, the judgment a quo raised the constitutional question of whether interpreting section 182(2) of the Electoral Act as a bar to the hearing of an appeal that was filed on time amounts to an unconstitutional limitation of the right to access the courts under section 69(2) and (3), right to vote under section 67(1)(a), (b), 67(3)(a) and (b) and the right to protection and benefit of the law under section 56(1) of the Constitution.

The applicant submitted, that, since the provision in question was capable of two reasonable constructions, it raised a constitutional issue which required interpretation with the construction which is more constitutionally compliant being adopted.

In this light, counsel submitted, that, there were prospects of success in that the meaning which the court a quo had preferred resulted in the unconstitutionality of section 182(2) of the Electoral Act [Chapter 2:13].

Counsel for the applicant further submitted, that, section 182(2) of the Electoral Act is directory rather than mandatory and cannot constitutionally operate as a time bar to the determination of an appeal already properly pending.

It was the applicant's submission, that, the above provision is capable of two reasonable constructions and the one more constitutionally compliant should have been adopted for the reason, that, the ouster of a court's jurisdiction is constitutionally incompetent in the absence of clear and unambiguous language used by the legislature.

It was counsel's case, that, the court a quo erred by interpreting section 182(2) of the Electoral Act as mandatory because it has an effect of placing an unconstitutional limitation on the right of access to the courts under section 69(2) and (3) of the Constitution together with the right to protection of the law under section 56(1) of the Constitution.

He further argued, that, the Zimbabwe Electoral Commission (ZEC) had already admitted to committing the error, and, as such, the decision by the court a quo to throw out the petition had an effect of undermining the integrity of democracy which is demanded by section 46 of the Constitution.

He thus moved the Constitutional Court to grant the applicant leave in the interests of upholding the Constitution.

RESPONDENT'S SUBMISSIONS BEFORE THIS COURT

Counsel for the respondent abandoned his preliminary objection at the hearing, and, in opposing the application, submitted that the application was a disguised appeal against the final judgment of the court a quo.

He contended, that, the proceedings a quo did not turn on a constitutional question, but, rather, turned on the applicant's failure to have his electoral appeal determined within the three-month period set by section 182(2) of the Electoral Act.

He submitted, that, the Supreme Court made no constitutional pronouncement capable of being appealed and determined by this Court, and, as such, the applicant's application was devoid of merit.

Counsel further argued, that, no competent constitutional question could be extracted from the decision of the court a quo, and, as such, this Court has no competence to hear and determine the matter since it does not involve the interpretation or enforcement of the Constitution.

Counsel for the respondent contended, that, it was incumbent upon the applicant, as dominus litis, to effectuate section 182(2) of the Electoral Act and cause the timeous hearing and determination of his appeal before the court a quo.

He further submitted, that, electoral petitions are legal processes that are specifically regulated by statute, and, in this case, the provision in question, section 182(2) of the Electoral Act, clearly dictates that an appeal seeking to impugn the decision of the Electoral Court can only be lodged in terms of section 172(2) of the Electoral Act and such appeal must be determined within 3 months from the date of lodgement of such. In turn, he argued that the 3 months timeline is peremptory and allows for no extension. Accordingly, the adjudication of the appeal a quo, outside the time limit, would have been irregular and aberrant to our law.

In effect, counsel averred that it was not possible for the court a quo to depart from the bounds of statute which would have been unconstitutional and a violation of the rule of law.

He thus moved for the dismissal of the application.

APPLICATION OF THE LAW TO THE FACTS

In terms of section 167(5)(b) of the Constitution, the Constitutional Court Rules must allow a person, when it is in the interests of justice, and with or without leave of the Constitutional Court, to appeal directly to the Constitutional Court from any other court. Rule 32 of the Constitutional Court Rules gives effect to section 167(5)(b) of the Constitution. It provides as follows:

“32. Leave to Appeal

(1)…,.

(2) A litigant who is aggrieved by the decision of a subordinate court on a constitutional matter only, and wishes to appeal against it to the Court, shall, within fifteen days of the decision, file with the Registrar an application for leave to appeal and shall serve a copy of the application on the other parties to the case in question, citing them as respondents.”

Section 167(1)(b) of the Constitution makes it clear that the jurisdiction of the Constitutional Court is limited to deciding only constitutional matters and issues connected with decisions on constitutional matters.

The case of Lytton Investments (Pvt) Ltd v Standard Chartered Bank Zimbabwe Ltd and Anor CC11-18 is instructive with regard to the specialised jurisdiction of the Constitutional Court. At p9 of the cyclostyled judgment the Constitutional Court held thus:

“The Court is a specialised institution, specifically constituted as a constitutional court with the narrow jurisdiction of hearing and determining constitutional matters only. It is the supreme guardian of the Constitution and uses the text of the Constitution as its yardstick to assure its true narrative force. It uses constitutional review predominantly, albeit not exclusively, in the exercise of its jurisdiction.”

In Muza v Saruchera and Ors CC05-19, the Constitutional Court noted that the purpose of the right of appeal granted to a person under Rule 32(2) of the Constitutional Court Rules, the procedure of an application for leave to appeal provided therein, and the contents of the application required under Rule 32(3)(c) of the Constitutional Court Rules, are premised on the existence of a decision by a subordinate court on a constitutional matter only.

It is incumbent to note, that, the purpose of the Constitutional Court Rules is to ensure proper exercise of jurisdiction by the Constitutional Court.

The matter that gives rise to the need for the court to exercise its jurisdiction must be a constitutional matter decided by the subordinate court.

It is the applicant's case, that, the decision of the court a quo violated his right to access the courts under section 69(2) and the right to protection and benefit of the law under section 56(1) of the Constitution when it held that section 182(2) of the Electoral Act ousted its jurisdiction to hear the matter outside the time limits.

With regard to the provision in question, the court a quo held the following:

“In the result, the respondent's point in limine, challenging the continued adjudication of this appeal beyond the time limit prescribed by section 182(2) of the Electoral Act, is sustained and must be upheld. Consequently, the appeal can no longer be heard or determined by this Court for want of jurisdiction.”

Clearly, the applicant's submission is devoid of merit.

The matter before the court a quo was a simple electoral appeal against the finding of the Electoral Court which dismissed the applicant`s electoral petition. In disposing of that appeal, the court a quo applied the case of Sibanda & Anor v Ncube & Ors/Khumalo & Anor v Mudimba & Ors SC158-20 and removed the matter from the roll.

The basis of that decision was that the court could not entertain the appeal because the time within which that appeal ought to have been determined had lapsed, largely due to the applicant's attitude, who, as the dominus litis, sat on his laurels instead of timeously ensuring the prosecution of his appeal as is demanded by section 182(2) of the Electoral Act.

In effect, the court a quo interpreted the provisions of the Electoral Act in coming to its conclusion. It never interpreted, protected, or enforced the Constitution. The clear result is that the court a quo was never seized with a constitutional matter and neither did it decide one.

Du PLESSIS, PENFOLD and BRICKHILL 'Constitutional Litigation' 1ed, Juta & Co. Ltd, Cape Town, 2013…, states:

“The interpretation of legislation is not always a constitutional matter, it is only the case if the Constitution is brought to bear in the interpretive exercise.”

The applicant, in advancing his argument, sought to rely on Chagi and Ors v Special Investigating Unit 2009 (2) SA 1 (CC)…, wherein it was held as follows:

“The correct interpretation and effect of a statutory provision is not ordinarily a constitutional matter. A debate on the construction of a particular provision does, however, raise a constitutional issue or a matter connected with a decision of one if the provision is capable of two reasonable constructions, the one being more constitutionally compliant than the other.”

The applicant submitted, that, the provision in question was capable of two reasonable constructions, and, thus, it raised a constitutional issue and the court a quo failed to interpret the section in a manner that makes it constitutionally compliant.

The court a quo upheld the respondent's preliminary objection on the basis, that, the time limits imposed by section 182 of the Electoral Act were mandatory and were to be strictly complied with.

Thus, the finding by the court a quo involved a straightforward application of law and did not raise constitutional questions about the validity or the proper interpretation or development of that law.

In coming to this conclusion, the court a quo did not decide a constitutional matter because there was no need to interpret, enforce, or protect the Constitution in order to come to the conclusion, that, the applicant was out of time in executing his appeal.

As such, the applicant's argument in this regard ought to fail.

The applicant also argued, that, section 182(2) of the Electoral Act is directory rather than mandatory and cannot constitutionally operate as a time bar to the determination of an appeal already properly pending. In this regard, he contends that the court a quo's interpretation of the provision had the effect of violating his right to access the court and to protection of the law.

Section 182 of the Electoral Act [Chapter 2:13] governs the time within which election petitions and appeals are to be determined and it stipulates as follows:

“(1) Every election petition shall be determined within six months from the date of presentation.

(2) An appeal under section 172(2) shall be determined within three months from the date of the lodging of the appeal.

(3) For the purpose of ensuring that an election petition or an appeal is determined within the time-limit prescribed in subsection (1) or (2), as the case may be —

(a) The Judge President of the High Court or the presiding judge of the Electoral Court, in the case of an election petition; and

(b) The Chief Justice, or the senior presiding judge of the Supreme Court, in the case of an appeal from a decision on an electoral petition; may, notwithstanding any other enactment, give such directions as to the filing of documents and the hearing of evidence and argument as will, in his or her opinion, ensure that the time limit is met, and the parties shall comply with those directions.”

The Electoral Act is clear in its language, that, an electoral appeal ought to be determined
within three months.

The provisions are imperative and therefore mandatory and the time limits stipulated in those provisions cannot be exceeded under any circumstances.

It also follows, that, any adjudicative proceedings that may be conducted beyond those time limits are rendered nugatory and must be regarded as being null and void.

In this light, the court a quo correctly held that the applicant, as the dominus litis, ought to have been vigilant in monitoring and managing the progress of his case in order to meet the stipulated time limits. The applicant could not sit back and wait for the appeal to be prosecuted in the normal run of things as that would certainly entail the determination of the appeal outside the 3-month prescribed time limit.

It is for the above reasons, that, the Constitutional Court is of the view that the interpretation sought to be ascribed to section 182 of the Electoral Act by the applicant is unreasonable. There is only one reasonable interpretation, which was adopted by the court a quo, hence, it found that it did not have the jurisdiction to hear the matter.

The court holds, that, the applicant has failed to demonstrate that a constitutional matter was determined by the court a quo, hence no appeal can lie against it.

The removal from the roll of the appeal by the court a quo remains final. It cannot be appealed against because the Supreme Court is the final court of appeal in Zimbabwe, except in matters over which the Constitutional Court has jurisdiction as stipulated in section 169(1) of the Constitution of Zimbabwe.

As such, the application has no merit and it ought to be dismissed.

However, as far as costs are concerned, nothing has been submitted to persuade the Court to depart from the approach that no order of costs should be awarded in constitutional matters. Clearly, whilst right from the outset, this matter could have been more competently and expeditiously handled by the applicant and his lawyers, there is nothing in this application that suggests an abuse of the court's processes meriting an order of costs.

Equally, it would be improper to expect this Court to bend the rules and seek to rectify the situation in this application as that would set a bad precedent:

As the playwright, William Shakespeare, aptly observed in the play, the Merchant of Venice, Act IV, setting a bad precedent must be avoided at all costs.

Bassanio: Wrest once the law to your authority: To do a great right, do a little wrong and curb this cruel devil of his will.

Portia: It must not be; there is no power in Venice can alter a decree established. It will be recorded for a precedent, and many an error by the same example will rush into the state; it cannot be.

DISPOSITION

In the result, the application be and is hereby dismissed with no order as to costs.

CC11-21 : LIZIWE MUSEREDZA and 385 OTHERS vs MINISTER OF AGRICULTURE, LANDS, WATER AND RURAL RESETTLEMENT and MAPARAHWE PROPERTIES (PVT) LTD and OTHERS
Ruled By: GWAUNZA DCJ, GARWE JCC, MAKARAU JCC, GOWORA JCC, HLATSHWAYO JCC, PATEL JCC and UCHENA AJCC

After hearing argument on the preliminary point whether the applicants required leave of the court to bring their application, the court ruled that leave was necessary.

Having been filed without leave, the matter brought by the applicants was struck off the roll with no order as to costs with the court indicating that its reasons would follow in due course.

I now set these out.

The matter is an application in terms of the then Rule 449 of the High Court Rules 1971, now Rule 29 of the High Court Rules 2021, as read with Rule 45 of the Constitutional Court Rules 2016 (“the Rules”).

Rule 449 of the High Court Rules provided:

“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.”

This rule of the High Court is applicable in this Court by virtue of the provisions of Rule 45 of the Constitutional Court Rules.

There is no equivalent of Rule 449 of the High Court Rules in the Constitutional Court Rules or in the rules of the Supreme Court.

The applicants seek the rescission of an order of this Court dated 18 November 2015 on the basis that the order, handed down with the consent of the parties to that suit, was sought and granted in error and in the absence of the applicants who are adversely affected by it.

They further contend, that, they bring the application in terms of section 167(5)(a) as read with section 176 of the Constitution of Zimbabwe.

Section 167(5)(a) of the Constitution provides for the enactment of rules for this Court to allow litigants, when it is in the interests of justice, with or without leave of the court, to bring matters directly to the Constitutional Court whilst section 176 of the Constitution grants this court inherent powers to protect and regulate its own processes.

I shall advert to these two sections of the Constitution in detail below.

Factual Background

The applicants allegedly reside on a piece of land in the District of Hartley known as Kingsdale of Johannesburg. I note, in passing, that the exact nature of each applicant's tenure on the land in dispute was not described in the founding affidavit.

Fleeting mention is however made in the opposing affidavit that the applicants may be occupying the land as beneficiaries of the land reform programme that was undertaken by the State commencing in the year 2000.

The tenure of each applicant on the land in question was however of no import in the determination of the preliminary point.

Kingsdale of Johannesburg was agricultural land, owned by one Pieter Nicholas Nel (“Nel”), now deceased and represented herein by the fourth respondent, Adam James Hartnack.

In or about 2015, the land was identified for acquisition by the State under the Land Acquisition Act [Chapter 20:10] and processes to acquire the land were put underway.

The acquisition of the land was contested.

At the time the current Constitution became operative in 2013, Kingsdale of Johannesburg, together with other pieces of agricultural land, had been listed in Schedule 7 of the repealed Constitution.

The significance of such listing is to be found in section 72(4)(a) of the Constitution which provides, that, ownership of all agricultural land which was itemized in Schedule 7 to the former Constitution continues to be vested in the State.

Following litigation brought by the second respondent herein, Maparahwe Properties (Private) Limited, Pieter Nicholas Nel and five others over the nature and ownership of the land, which litigation commenced before the Constitution became operative, this Court, with the consent of the parties in case Number CC43-15, issued an order declaring that Kingsdale of Johannesburg is private land.

In consequence thereof, the first respondent herein, the Minister of Agriculture, Lands, Water and Rural Resettlement, was ordered to withdraw his or her acquisition of the land under the Land Acquisition Act and to publish such withdrawal in the Government Gazette and in the Herald Newspaper within 14 days of the order.

It was further declared, that, ownership of the land vested in the second respondent, Maparahwe Properties (Private) Limited, which had purchased the land from Pieter Nicholas Nel during his lifetime.

The order authorized the second respondent herein to proceed with its development of the land into urban residential stands.

I reproduce the order in full:

“1. Kingsdale Housing Cooperative Society Limited be and is hereby joined to these proceedings as the second respondent.

2. It is declared that the applicant's right under section 68(1) of the Constitution of Zimbabwe to fair, just and prompt administrative action has been violated.

3. It is declared that Kingsdale of Johannesburg measuring 161,8238 hectares in the District of Hartley is private land.

4. Consequently, it is ordered that:

4.1. The first respondent be and is hereby ordered to withdraw its acquisition of land aforesaid and shall cause the publication of such withdrawal in the Government Gazette and the Herald Newspaper within fourteen (14) days of this order.

4.2. The land aforesaid vests in the first applicant who shall proceed with urban development of the said land up to the issuance of title surveys in accordance with permits issued or to be issued by the relevant town planning authority.

4.3. Any agreements of sale between first applicant and any other person as of the 26th February 2015 (the date of purported acquisition) remain valid and enforceable.

4.4. All persons, with the exception of the second respondent's registered members as at 12 November 2013, in illegal occupation or possession of any portion of the said land forthwith vacate the land failing which the Sheriff of Zimbabwe or his lawful Deputy be and is hereby authorized to eject them.

4.5 The First applicant hereby donates to the Government of Zimbabwe twenty-one (21) hectares of land in the area covered by Garikai/Hlalani Kuhle Housing Scheme and ZESA Servitudes.

4.6 The first applicant shall develop the land in terms of paragraph 4.2 above and the members of the second respondent, and persons referred to in paragraph 4.3 above, shall compensate the first applicant for the remaining land measuring 140 hectares at US$5 per square metre in accordance with the terms of a Deed of Settlement to be signed by the parties and incorporated in the order of the Administrative Court.

5. Each party to bear its own costs.”

Contending, that, the declaration by this Court, under paragraph 3, and the consequential relief granted under paragraph 4 of its order, are unconstitutional as they violate the provisions of section 72(4)(a) of the Constitution, the applicants approached this Court as detailed above.

To support the contention, it was argued, that, this Court cannot override or ignore the express provisions of the Constitution on what is and is not State land.

By virtue of being itemized under Schedule 7 of the repealed Constitution, it was argued, Kingsdale of Johannesburg remained and is State land. In the circumstances of the matter, the argument proceeded, it was clearly an error for this Court to declare, as it did, that the land is private land.

Strongly believing, and still arguing at the hearing of the application, that such was not necessary, the applicants legal practitioner and counsel did not seek leave of this Court as is provided for in Rule 21(1) of the Constitutional Court Rules.

The non-observance of the provisions of Rule 21(1) of the Constitutional Court Rules gave rise to the preliminary point taken by the respondents as to whether the application was properly before the court.

The precise issue that arose for the determination of the Constitutional Court was whether leave of the Constitutional Court, in accordance with Rule 21(1) of the Constitutional Court Rules is required for an application for the setting aside of an order of this Court under Rule 449 of the High Court Rules 1971 as read with Rule 45 of the Constitutional Court Rules.

As indicated above, the Constitutional Court ruled that such leave is a pre-requisite.

The Arguments

Counsel for the fourth respondent (Executor, Estate of Late Pieter Nicholas Nel) made the simple point, that, the matter before the court, being an application in terms of Rule 449 of the High Court Rules, is not listed in Rule 21 of the Constitutional Court Rules as one that does not require leave of the court before it is instituted.

He invoked the expressio unius est exclusio alterius maxim to buttress his argument in this regard.

By invoking the expressio unius est exclusio alterius maxim, counsel for the fourth respondent (Executor, Estate of Late Pieter Nicholas Nel) was, in essence, arguing that the Constitutional Court Rules are exhaustive, and, consequently, if a matter has been excluded from the list of matters for which leave is not required, then leave is always required.

Correctly understood, the argument by counsel for the fourth respondent represents a narrow view of the inter-play between the exclusive jurisdiction of this Court and the right to access that jurisdiction directly and without leave.

The view point is not fully reflective of and is not borne out by the practice of this Court.

There are matters that are not listed in Rule 21 of the Constitutional Court Rules as not requiring leave and for which leave is not necessary. Examples of such matters are applications for joinder of parties for instance, or for the consolidation of causes already before the court. These primarily are cases that routine and arise incidentally during the determination of causes properly before the court.

I will advert to such matters in detail below.

Submitting that the point in limine was well taken, counsel for the second respondent (Maparahwe Properties (Pvt) Ltd) associated himself fully with the arguments advanced by counsel for the fourth respondent (Executor, Estate of Late Pieter Nicholas Nel) and made no additional submissions.

Counsel for the applicants, on the other hand, strongly argued, that, leave of the court, in the circumstances of this application, was unnecessary. He made three distinct submissions:

(i) Firstly, he argued, that, in matters where this Court has exclusive jurisdiction, leave to trigger that jurisdiction is not required.

Also focusing on Rule 21 of the Constitutional Court Rules, he argued, that, it becomes an illogical interpretation of the rule for leave to be sought where the court is the only court that can determine the matter. In this vein he pointed, and indisputably so, to the fact that this Court is the only court that has jurisdiction in this matter, as only this Court can rescind its own decision as prayed for in the draft order.

(ii) Secondly, and as an offshoot of the first argument, counsel for the applicants argued, that, it is only in instances where this Court enjoys concurrent jurisdiction with other courts that the notion of leave arises and may become necessary.

He argued, that, in such circumstances, for one to avoid or bypass the other equally competent courts and gain direct access to this Court, as a general rule, one can only do so with leave.

Direct access then becomes an indulgence in the discretion of the court.

In contrast, he continued, where this Court is the only available forum, access to that court is not and should not be an indulgence but a right.

(iii) Finally, and to counter the invocation of the maxim expressio unius est exclusio alterius by counsel for the fourth respondent, counsel for the applicants submitted, that, the rules of this Court are not exhaustive and were not drafted to be so or with the intention that they be so.

Correctly understood, the argument by counsel for the applicants advocates very liberal direct access to this Court in matters where it is the only court that can determine the matter. Such direct access must be without leave.

Thus, he argued, that, establishing prospects of success beforehand, a necessary element to be satisfied in an application for leave for direct access, has no place in a matter where the court has exclusive jurisdiction.

Direct access to argue the merits of the matter must not be hindered or obstructed.

In this regard, he relied on the remarks of this Court in Meda v Sibanda and Ors 2016 (2) ZLR 232 (CC) where it was held in respect of a section 85(1) application 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).”

The Law and Analysis

The jurisdiction of a court and access to that jurisdiction are two distinct legal precepts. The two are complementary but are not synonymous. They are not to be conflated. They have their foundations in two different laws.

The jurisdiction of a court is to be found in substantive law while access to that jurisdiction, and the conduct of litigation in that court, are part of the adjectival law.

Broadly stated, particularly in civil matters, substantive law defines the rights, duties, and obligations of the parties and the court that has the competence to define those rights, duties, and obligations and where they lie. On the other hand, adjectival law lays out the practical procedural steps necessary for the injured party to enforce those rights and obtain appropriate remedies or redress.

The law governing direct access to this Court, with or without leave, is adjectival law. It is the law of practice and procedure.

The law governing access to this Court is to be found largely in the Rules of this Court and less in the provisions of the Constitution setting out the jurisdiction of this Court.

The jurisdiction of this Court is provided for in section 167(1) of the Constitution as follows:

“(1) The Constitutional Court –

(a) Is the highest court in all constitutional matters, and its decision on those matters bind all other courts;

(b) Decides only constitutional matters and issues connected with decisions on constitutional matters, in particular, references and applications under section 131(8)(b) and para 9(2) of the Fifth Schedule; and

(c) Makes the final decision whether a matter is a constitutional matter or whether an issue is connected with a decision on a constitutional matter.”

The Constitution then proceeds, in section 167(2), to provide for the four matters where only the Constitutional Court has jurisdiction.

I pause, momentarily, to underscore, that, the Constitution does not provide specifically when one can bring such matters, or any other constitutional matter, directly and without leave, to the Constitutional Court.

It instead provides in section 167(5) of the Constitution that:

“(5) Rules of the Constitutional Court must allow a person, when it is in the interests of justice, and, with or without leave of the Constitutional Court –

(a) To bring a constitutional matter directly to the Constitutional Court;

(b) To appeal directly to the Constitutional Court from any other court;

(c) To appear as a friend of the court.”

Still digressing, I note, that, this is the section that counsel for the applicants relied on to argue that direct access to this Court, without leave, for an application in terms of Rule 449 of the High Court Rules is guaranteed.

I am unable to read his argument in the section.

My reading of the section is that it merely enables the promulgation of Rules of the court to provide for direct access to the court, with or without leave, when it is in the interests of justice to allow such access.

Prior to the promulgation of the Rules of this Court, GWAUNZA JCC…, observed, in Prosecutor-General v Telecel Zimbabwe (Private) Limited CC10-15 that:

“Except for the specific instances stipulated in section 167(1)(b) and section 167(2)(b),(c) and (d), section 167 does not elaborate as to who, on what conditions, or how, a party may approach the Court for it to exercise the jurisdiction conferred upon it by that provision.”

Her Ladyship continued:

“Thus, section 167(1), apart from the paragraphs mentioned, does not confer on anyone the right to approach the Constitutional Court directly, even if they have, or perceive themselves to have a constitutional matter needing the Court's determination.”…,.

I again hasten to mention, that, by design, the matters that GWAUNZA JCC…, specified as requiring no leave before institution have been listed, amongst others, as such in Rule 21 of the Constitutional Court Rules.

Whilst awaiting the promulgation of the Constitutional Court Rules, the Constitutional Court, using its inherent jurisdiction, as granted to it by section 176 of the Constitution, set the practice that such matters required no prior leave.

With the promulgation of the Constitutional Court Rules, the position of the law is that, whilst the Constitution provides for the jurisdiction of the court, in section 167, it leaves the development of the adjectival law regulating direct access to that jurisdiction, with or without leave, to the Constitutional Court Rules.

It is a rule of common law, and an entrenched part of our practice and procedure, that, matters are to be brought before the court in accordance with the rules of that court.

The remarks of PATEL JCC in Marx Mupungu v The Minister of Justice, Legal and Parliamentary Affairs CC07-21 are apt. He wrote:

“One cannot institute an action or application in the High Court, or any other court, without due observance of and compliance with the Rules of that court. The Rules inform a litigant of what is required of him to access the court concerned. If he fails to observe or comply with those Rules, he will inevitably be non-suited.”

Litigation in this Court is no exception.

If anything, constitutional litigation has developed its own practice and procedures, distinct from civil procedure in the other courts of the land, the fine nuances of which litigants and legal practitioners alike must familiarize themselves with.

Rule 21(1) of the Constitutional Court Rules provides that:

“21(1) The following matters shall not require leave of the Court -

(a) Disputes concerning an election to the office of President or Vice President;

(b) Disputes relating to whether or not a person qualified to hold the office of President or Vice President;

(c) Referrals from a court of lesser jurisdiction;

(d) Determinations on whether Parliament or the President has failed to fulfil a constitutional obligation;

(e) Appeals in terms of section 175(3) of the Constitution against an order concerning the constitutional validity or invalidity of any law.

(f) Where the liberty of an individual is at stake;

(g) Challenges to the validity of a declaration of a State of Public Emergency or an extension of a State of Public Emergency.”

But, as correctly argued by counsel for the applicants, the Constitutional Court Rules are not exhaustive.

The Constitution, in section 167, defines the jurisdiction of this Court. This is in respect of the subject matter that can be brought before the court.

In section 176, it grants this Court inherent jurisdiction to protect and regulate its own processes. Matters that will then arise procedurally from the exercise of this inherent jurisdiction to protect and control its processes are naturally in the exclusive jurisdiction of this Court.

I give examples of such matters elsewhere in this judgment.

Whilst the Constitutional Court Rules have provided that matters that are in the exclusive jurisdiction of the Constitutional Court, by virtue of section 167 of the Constitution, among others, do not require leave, they have not similarly provided for procedures that are in the exclusive jurisdiction of the Constitutional Court by virtue of section 176.

Whilst the Constitutional Court Rules have not included procedural matters that may arise during the litigation of a constitutional matter in the list of matters for which no leave is required, it stands to reason, that, no leave of court is required before such matters are raised.

Applications for postponement, for joinder of parties, for amendment of notices and papers filed with the court, for consolidation of matters before the court, and for the recusal of one or more members of the court, among others, fall into this category.

Self-evidently, it would be an illogical reading of Rule 21 of the Constitutional Court Rules to say that leave is required before such applications are made merely because they have not been specifically included in the list of matters for which no leave is required in terms of Rule 21 of the Constitutional Court Rules.

Applied to the matters that are in this category, there is therefore some cogency in counsel for the applicant's argument, that, for matters where the court is the only court that can determine the issue, leave is not required.

But, this rule, if it may be called that, is limited only to instances where the matter to be determined arises in the course of litigation and from the exercise of the power of the court to protect and control its processes.

The issue must be procedural.

Applications for the setting aside of extant orders under Rule 449 of the High Court Rules 1971 do not arise during the course of litigation.

But, that is not all.

Applications for leave for direct access under Rule 21 of the Constitutional Court Rules serve a dual purpose:

(i) Firstly, in matters where this Court enjoys concurrent jurisdiction with other courts, they serve to satisfy the court that it is in the interests of justice that this Court act as a court of first instance. In all other matters, applications for leave to access the court directly serve to satisfy the court that it is in the interests of justice for it to determine the matter at all.

(ii) The second purpose has a gate-keeping function. It acts to sieve matters that this Court must, in the interests of justice, determine and those that it should not - even if it is the only court that has jurisdiction in the matter.

As discussed above, an application to this Court, in terms of Rule 449 of the High Court Rules as read with Rule 45 of the Constitutional Court Rules, is in the exclusive jurisdiction of this Court by operation of the law of practice and procedure. This is so because only this Court can correct or vary its own order sought or given in error and in the absence of a party adversely affected by the order.

Such an application is sui generis in a number of respects.

Whilst it is brought to set aside an extant order of the court, it, in essence, seeks to bring before the court new facts or fresh legal argument for consideration.

This is so because the applicants have perforce to allege that a material fact or law was not brought to the attention of the Constitutional Court and was therefore not considered by it before it made the order that is under challenge.

In casu, evidence of the “new” fact was sought to be led through the founding affidavit in the form of the Government Notice that listed the land in dispute.

The new matter that the applicants wish the court to determine is therefore the effect of this new evidence on the ownership of the land in dispute.

Secondly, the application is not between the same parties who were before the court in the matter that resulted in the extant order. It is brought by applicants who, again, perforce have to allege that they were not before the court when the order was granted. It therefore introduces not only a new matter but new parties.

These two aspects distinguish the application in casu from the application that was before the Constitutional Court in President of the Senate and Another v Gonese and Another CC01-21, a case that counsel for the applicants made reference to.

In that case, leave of the court was not required even if the matter was not listed in Rule 21 of the Constitutional Court Rules as a matter for which no leave is required.

The Constitutional Court, in that matter, held that, the application was a continuation of the cause or application that had been before the court and involved the same parties.

For these reasons, contrary to the submissions by counsel for the applicants, that case is not of any assistance to the applicants whose circumstances are different.

The practice of this Court, therefore, is that, where a litigant wishes to bring a new and fresh cause and the matter is not listed in Rule 21 of the Constitutional Court Rules as one for which leave is not required, then, leave must be sought even if the matter is in the exclusive jurisdiction of the court. The practice is based on and highlights the gate-keeping function of an application for leave.

A reading of the decided cases from this jurisdiction shows, that, the prime concern of the Constitutional Court is that direct accessibility to the Constitutional Court, without leave, should be limited to where it is in the interests of justice.

The concern is thus against opening the floodgates by using applications for leave as a filtering mechanism.

“The filtering mechanism for leave for direct access effectively prevents abuse of the remedy. The rules requiring leave for direct access ensure, that, the power of constitutional review is exercised by the court in reviewable cases only:” per MALABA CJ in Lytton Investments (Private) Limited v Standard Chartered Bank Zimbabwe Limited and Another CC11-18.

Disposition

Regarding costs, the court did not see any justification for departing from its general practice of not making an order of costs in favour of any of the parties. None of the parties prayed for an order of costs.

It is for the above reasons that the matter was struck off the roll with no order as to costs.

CC01-22 : LIZIWE MUSEREDZA and 303 OTHERS (LISTED) vs MINISTER OF AGRICULTURE, LANDS, WATER AND RURAL RESETTLEMENT and MAPARAHWE PROPERTIES (PRIVATE) LIMITED and OTHERS
Ruled By: GOWORA JCC, HLATSHAWYO JCC and PATEL JCC

The roles that the Rules play was explained in Makaruse v Hide Skin Collectors (Pvt) Ltd 1996 (2) ZLR 60 (S)…, as being:“By virtue of the power conferred on this court by Rule 4 to condone any non-compliance with the rules, none of the provisions of the rules ...

CC01-22 : LIZIWE MUSEREDZA and 303 OTHERS (LISTED) vs MINISTER OF AGRICULTURE, LANDS, WATER AND RURAL RESETTLEMENT and MAPARAHWE PROPERTIES (PRIVATE) LIMITED and OTHERS
Ruled By: GOWORA JCC, HLATSHAWYO JCC and PATEL JCC

This is an application for leave for direct access to the Constitutional Court brought in terms of section 167(5)(a) of the Constitution as read with Rule 21 of the Rules of the Constitutional Court 2016.

The applicants are a group of persons residing on a piece of land over which the second respondent claims ownership. They intend to approach the Constitutional Court, under section 24 of the Constitutional Court Act 2021, for the rescission of a judgment of the Constitutional Court issued under CC43-15.

BACKGROUND FACTS

The applicants are residents on a piece of land described as a certain piece of land situated in Hartley District, being Kingsdale of Johannesburg, measuring 161,8238 hectares.

In 2001, the State gazetted the land described above, and, through that process, compulsorily acquired it under the land reform programme. In support, the applicants have attached to their papers an Extraordinary Government Gazette dated 22 June 2001 confirming the acquisition. The applicants contend, that, consequently, title to the land is vested in the Government of Zimbabwe.

Further, the applicants claim, that, they were allocated stands on the piece of land under the programme. However, they have not produced any documents to the Court to sustain their claim.

The applicants claim, that, unbeknown to them, the first to ninth respondents (Minister of Agriculture, Lands, Water and Rural Resettlement, Maparahwe Properties (Pvt) Ltd, Kingsdale Housing Co-operative Society Ltd, Executor, Estate of Late Pieter Nicholas Nel, Hardwork Chiminya, Givemore Dube, Pretty Kurera, Spiwe Matambo and Executor, Estate of Late Sibangani Kokera) obtained an order by consent under CC43-15.

The second respondent (Maparahwe Properties (Pvt) Ltd) was permitted, in terms of that order, to obtain necessary permits have the land surveyed and to sell any Stands to any other party or parties. They allege, that, as a result of this, and contrary to their wishes, they entered into agreements of sale in respect of their individual Stands. Thus, the second respondent erroneously continues to hold itself as the owner of the piece of land to their prejudice.

The parties are agreed that the following facts are common cause.

In 2001, the piece of land described above was gazetted for acquisition under the land reform programme. It is common cause that the Administrative Court set aside the acquisition in 2003.

On 2 October 2013, this Court set aside the acquisition of the piece of land following its further gazetting in 2005. This order was followed by an order obtained by consent under CC43-15, the causa for the application in casu. This order, issued on 18 November 2015, was in the following terms:

“IT IS ORDERED BY CONSENT THAT:

1. Kingsdale Housing Cooperative Society Limited be and is hereby joined to these proceedings as the second respondent.

2. It is declared, that, the applicants right under section 68(1) of the Constitution of Zimbabwe to fair, just, and prompt administrative action has been violated.

3. It is declared, that, Kingsdale of Johannesburg, measuring 161,8238 hectares in the District of Hartley, is private land.

4. Consequently, it is ordered that:

4.1 The first respondent be and is hereby ordered to withdraw its acquisition of land aforesaid and shall cause the publication of such withdrawal in the Government Gazette and the Herald Newspaper within fourteen (14) days of this order.

4.2 The land aforesaid vests in the first applicant who shall proceed with urban development of the said land up to the issuance of title surveys in accordance with permits issued or to be issued by the relevant town planning authority.

4.3 Any agreement of sale between first applicant and any other person, as of 26 February 2015 (the date of purported acquisition), remains valid and enforceable.

4.4 All persons, with the exception of the second respondent's registered members as at 12 November 2013, in illegal occupation or possession of any portion of the said land forthwith vacate the land failing which the Sheriff of Zimbabwe or his lawful Deputy be and is hereby authorised to eject them.

4.5 The first applicant hereby donates to the Government of Zimbabwe twenty–one (21) hectares of land in the area covered by Garikai/Hlalani Kuhle Housing Scheme and ZESA Servitudes.

4.6 The first applicant shall develop the land in terms of para 4.2 above, and the members of the second respondent and persons referred to in para 4.3 above shall compensate the first applicant for the remaining land measuring 140 hectares at US$5 per square metre in accordance with the terms of a Deed of Settlement to be signed by the parties and incorporated into the order of the Administrative Court.

5. Each party to bear its own costs.”

It is common cause, that, the applicants have entered into separate agreements of sale in respect of the individual Stands that each applicant occupies.

The applicants contend, that, the judgment issued under CC43-15 should be set aside.

They place reliance for this contention on section 24 of the Constitutional Court Act [Chapter 7:22] (“the Act”). They allege that the judgment was granted in their absence. They allege that the judgment was granted in error as the land is State land following its acquisition in 2001.

They further allege, that, they were forced, by circumstances, into purchasing from the second respondent the Stands allocated to them under the land reform programme pursuant to the judgment.

They contend that they have been, and continue to be, prejudiced by the erroneous order in CC43-15.

On the premises stated above, the applicants approach the Constitutional Court for leave to have the judgment under CC43-15 rescinded.

Rescission is sought on the basis, that, the judgment was erroneously sought or granted.

The applicants aver, that, the land in question was State land and remains State land under section 72(4)(a) of the Constitution due to its listing in Schedule 7 of the former Constitution in 2005. The parties erred in not bringing this fact to the attention of the Constitutional Court at the hearing.

The applicants contend, that, the judgment is unconstitutional as it is contrary to section 72(4)(a) of the Constitution.

They argue, that, none of them was party to the consent order under CC43-15.

THE REQUIREMENTS FOR LEAVE FOR DIRECT ACCESS

The Constitutional Court is a specialised court with jurisdiction to hear only deserving cases. Direct access to the Court is an extraordinary procedure granted in deserving cases that meet the requirements set out in the rules of the Court.

Rule 21(3) of the Rules of the Constitutional Court 2016 requires that an applicant for leave for direct access to the Constitutional Court must show that it is in the interests of justice for access to be granted by the Court. Thus, Rule 21(3) of the Constitutional Court Rules provides 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.”

Rule 21(8) of the Constitutional Court Rules provides:

“(8) In determining whether or not it is in the interests 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 him or her;

(c) Whether there are disputes of fact in the matter.”

In Zimbabwe Development Party & Anor v The President & Ors 2018 ZLR 485 (CC)…, MALABA CJ commented thus:

“In order for direct access to be granted, the applicants had to show that they had prospects of success in the main matter. In Transvaal Agricultural Union v Minister of Land Affairs and Another 1996 (12) BCLR 1573, 1997 (2) SA 621 (CC) at para [46], the Constitutional Court of South Africa said in part:

'[46] The applicant has failed to establish that this is a case in which the ordinary procedures ought not to have been followed. There are important issues which are within the jurisdiction of the Supreme Court and which need to be resolved by it before this Court is approached for relief. As far as the other issues are concerned, there is neither the urgency nor the prospects of success necessary to justify direct access to this Court. The application for direct access must therefore be dismissed.'”…,.

In Bruce and Another v Fleecytex Johannesburg CC and Others 1998 (2) SA 1143 (CC), 1998 (4) BCLR 415 (CC)…, CHAKALSON P remarked:

“[7] Whilst the prospects of success are clearly relevant to applications for direct access to this Court; there are other considerations which are at least of equal importance. This Court is the highest Court on all constitutional matters.

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.”…,.

It is common cause that the applicants are in occupation of individual Stands on the land, which is the subject of the dispute, under agreements of sale concluded between them and the second respondent. It is also common cause that the contracts of sale have not been cancelled in respect of some of the applicants.

The record shows, that, the second respondent obtained a judgment for the eviction of the first applicant from the Stand.

However, none of the applicants are claiming a right of occupation through the agreements of sale. Rather, their alleged right to occupation is premised on the allegation that they were allocated Stands under the land reform programme.

If granted access, the applicants seek an order in the following terms:

“1. That, it be and is hereby ordered that the judgment by this Court in CC43-15, handed down as an order on 18 November 2015, is rescinded for the reason that it was granted in error.

2. That, for the avoidance of doubt, and arising from the order in para 1, in the exercise of the Court's inherent powers under section 176 of the Constitution as read with section 175(6)(b) of the same Constitution, it is declared that certain piece of land known as Kingsdale of Johannesburg, in the district of Hartley, measuring 161,8238 hectares, is State land under section 72(4) of the Constitution of Zimbabwe.

3. The respondents (if they oppose this order) shall pay the costs of this application jointly and severally, the one paying the others being absolved.”

SUBMISSIONS BEFORE THE COURT

Submissions in relation to the two issues went as follows:

Counsel for the applicants contended, that, the High Court Rules are inapplicable in casu, and that the matter may be brought to the Constitutional Court by way of section 24 of the Constitutional Court Act. To that end, he argued, that, there was no question of delay in bringing the application for rescission as section 24 of the Constitutional Court Act did not make provision for a timeframe for filing the application.

He contended further, that, there were no time limits placed on alleged violation of the Constitution.

In so far it related to the locus standi of the applicants, counsel for the applicants argued, that, the applicants had an interest to protect. He further contended, that, they were absent from the process when the judgment was issued and have, therefore, the requisite locus standi in judicio.

Counsel for the second respondent (Maparahwe Properties (Pvt) Ltd) was of a contrary view.

He argued, that, whilst section 24 of the Constitutional Court Act restates the substantive power of the Constitutional Court, the procedural aspects are provided for in section 26 of the Constitutional Act.

In his view, section 24 of the Constitutional Court Act restates the substantive power of the Court. The procedural aspects of the exercise of that power are set out in section 26 of the Constitutional Court Act where the Chief Justice is empowered to promulgate rules of court to provide for the procedure the Constitutional Court is to follow.

He contended, that, the failure by the applicants to adhere to the rules of the Court was fatal to the application.

He suggested that the application was in fact a nullity.

Coming to the question of locus standi, counsel for the second respondent (Maparahwe Properties (Pvt) Ltd) submitted, that, the applicants had not established, on the papers, that they had locus standi to apply for the rescission of the judgment. They had not established that they had an interest that required protection through the setting aside of the judgement in question. He reiterated that interest, in the context of locus standi, must be personal as relates to the person seeking relief.

Counsel for the fourth respondent (Executor, Estate of Late Pieter Nicholas Nel), on the other hand, made the following submissions:

He argued, that, it was not in the interests of justice for the application to be granted. The applicants had become aware, as early as July 2017, of the existence of the judgment. The application was filed after a period of four years and there was no attempt to explain the delay in bringing it to the Constitutional Court.

He contended, that, Rule 29 of the Rules of the High Court applied in casu, and, on the premises of the rule, the applicants were not entitled to the relief they were seeking.

There were no submissions on the question of locus standi by the fourth respondent (Executor, Estate of Late Pieter Nicholas Nel).

I propose to consider the two issues ad seriatim.

In Liziwe Museredza & 385 Others v Minister of Agriculture, Lands, Water & Rural Resettlement & Ors CC11-21, the applicants approached the Constitutional Court for substantially the same relief as sought in the main application attached to this application. In the matter above, they approached the Constitutional Court under Rule 449 of the High Court Rules 1971 (now repealed). The Court considered the matter in terms of Rule 449 which provided in relevant part:

“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.”

In that matter, the contention of the applicants was to the effect, that, an application under Rule 449 of the High Court Rules did not require leave as provided for in Rule 21 of the Constitutional Court Rules 2016.

Writing for the Constitutional Court, MAKARAU JCC commented as follows…,:

“As discussed above, an application to this Court in terms of Rule 449 of the High Court Rules as read with Rule 45 of the Rules is in the exclusive jurisdiction of this Court by operation of the law of practice and procedure. This is so because only this Court can correct or vary its own order sought or given in error and in the absence of a party adversely affected by the order.

Such an application is sui generis in a number of respects.

Whilst it is brought to set aside an extant order of the Court, it in essence seeks to bring before the court new facts or fresh legal argument for consideration. This is so because the applicants have perforce to allege that a material fact or law was not brought to the attention of the Court and was therefore not considered by it before it made the order that is under challenge.

In casu, evidence of the 'new' fact was sought to be led through the founding affidavit in the form of the Government Notice that listed the land in dispute. The new matter that the applicants wish the Court to determine is therefore the effect of this new evidence on the ownership of the land in dispute.

Secondly, the application is not between the same parties who were before the Court in the matter that resulted in the extant order. It is brought by applicants who, again, perforce have to allege that they were not before the Court when the order was granted.

It therefore introduces not only a new matter but new parties….,.

The practice of this Court, therefore, is that, where a litigant wishes to bring a new and fresh cause and the matter is not listed in Rule 21 as one for which leave is not required, then leave must be sought even if the matter is in the exclusive jurisdiction of the Court. The practice is based on and highlights the gate-keeping function of an application for leave.”

Pursuant to that judgment, the applicants have filed an application for leave for direct access.

Undoubtedly, the applicants require the leave of court to approach the Constitutional Court for relief. The intended application for rescission of judgment does not fall within the applications that are exempted from leave in terms of Rule 21(1) of the rules of the Constitutional Court.

Rule 21(1) of the Constitutional Court Rules provides:

“(1) The following matters shall not require leave of the Court —

(a) Disputes concerning an election to the office of President or Vice-President;

(b) Disputes relating to whether or not a person is qualified to hold the office of President or Vice-President;

(c) Referrals from a court of lesser jurisdiction;

(d) Determinations on whether Parliament or the President has failed to fulfil a constitutional obligation;

(e) Appeals in terms of section 175(3) of the Constitution against an order concerning the constitutional validity or invalidity of any law;

(f) Where the liberty of an individual is at stake;

(g) Challenges to the validity of a declaration of a State of Public Emergency or an extension of a State of Public Emergency.”

The significance of Court Rules in the adjudication process

The law should be and the procedure for applying the law must work efficiently, inexpensively and effectively. This principle of fairness is provided for in the Constitution and the right of access to the Constitutional Court is a fundamental right. The Constitution of Zimbabwe 2013 has provided for access to the Constitutional Court in section 69(2) and (3) for the adjudication of civil rights. It provides:

“69 Right to a Fair Hearing

(2) In the determination of civil rights and obligations, every person has a right to a fair, speedy, and public hearing within a reasonable time before an independent and impartial court, tribunal, or other forum established by law.

(3) Every person has the right of access to the courts, or to some other tribunal or forum established by law for the resolution of any dispute.”

However, the right of access to courts does not give a litigant the licence to unilaterally decide on the procedure for accessing the court. The procedure applicable is as a consequence rooted in fairness and this is concretised by the power of the Court to enact rules that delineate procedural requirements.

This Court has, in a plethora of authorities, emphasised the obligation of litigants to adhere to the law and adopt the process set out in rules.

In Kombayi v Berkout 1988 (1) ZLR 53 (S)…, the court in that matter emphasised the obligation by litigants and their legal practitioners to observe the rules of the respective courts wherein relief is sought.

The court said:

“Although this court is reluctant to visit the errors of a legal practitioner on his client, to whom no blame attaches, so as to deprive him of a re-hearing, error on the part of a legal practitioner is not by itself a sufficient reason for condonation of a delay in all cases. As STEYN CJ observed in Saloojee & Anor NNO v Minister of Community Development 1952 (2) SA 135 (A) at 141C:

'There is a limit beyond which a litigant cannot escape the results of his attorney's lack of diligence or the insufficiency of the explanation tendered. To hold otherwise might have a disastrous effect upon the observance of the rules of the Court. Considerations ad misericordium should not be allowed to become an invitation to laxity.'

A duty is cast upon a legal practitioner, who is instructed to prosecute an appeal, to acquaint himself with the procedure prescribed by the Rules of the Court to which a matter is being taken on appeal. That no effort has been made to comply with the Rules of Court in the instant case is further exemplified by the failure of the applicant's attorney to satisfy the requirement of Rule 31(1) of the Supreme Court Rules: that an application for extension of time within which to appeal 'shall be accompanied by a copy of the judgment against which it is sought to appeal.'

The Notice of Appeal itself is defective, in that it does not comply with the mandatory provisions of Rule 29, sub-rules (a), (c) and (e) which require: (i) that the court by which the judgment appealed against was given be stated; (ii) that there be some indication as to whether the whole or part only of the judgment is appealed against; and (iii) that the exact nature of the relief sought be stipulated. There is almost a total disregard of the Rules.”

It is trite therefore, that, the rules form the backdrop of procedure, and that this serves to buttress the rules of natural justice that there be an equal playing field where every party is afforded a right to be heard in their cause: see Metsole v Chairman, Public Service Commission & Anor 1989 (3) ZLR 147 (S).

The roles that the Rules play was explained in Makaruse v Hide & Skin Collectors (Pvt) Ltd 1996 (2) ZLR 60 (S)…, as being:

“By virtue of the power conferred on this court by Rule 4 to condone any non-compliance with the rules, none of the provisions of the rules are strictly peremptory.

'The rules are, however, there to regulate the practice and procedure of the Court in general terms and strong grounds would have to be advanced, in my view, to persuade a court to act outside the powers provided for specifically in the Rules.' Per BOTHA J (as he then was) in Moulded Components v Coucourakis & Anor 1999 (2) SA 457 (W) at p462-3.

Thus, the inherent power to prevent abuse of the machinery of the court is a power which has to be exercised with great caution, and only in a clear case: Hudson v Hudson supra at 268.

Non-compliance of the rules will only be condoned upon good cause shown by the applicant.

There must be a reasonable and acceptable explanation for the failure to comply with the Rules, and the applicant for condonation must also show reasonable prospects of success: see General Accident Insurance Co. SA Ltd v Zampelli 1988 (4) SA 407 (C) at 411C-D.”

Rules of court are put in place to facilitate the expeditious and fair dispatch of cases.

The courts have an inherent power to regulate and protect their processes. This was reiterated in Mukaddam v Pioneer Foods (Pty) Ltd; Mukaddam v Pioneer Foods (Pty) Ltd 2013 (5) SA 89 (CC)…,

The Court made the following observations:

“[28] …,. Our Constitution guarantees everyone the right of access to courts which are independent of other arms of Government. But, the guarantee in section 34 of the Constitution does not include the choice of procedure or forum in which access to courts is to be exercised. This omission is in line with the recognition that courts have an inherent power to protect and regulate their own process in terms of section 173 of the Constitution, to which I shall turn in a moment.

[31] However, a litigant who wishes to exercise the right of access to courts is required to follow certain defined procedures to enable the court to adjudicate a dispute. In the main, these procedures are contained in the rules of each court. The Uniform Rules regulate form and process of the high courts. The Supreme Court of Appeal, and this court, have their own rules. These rules confer procedural rights on litigants and help in creating certainty in procedures to be followed if relief of a particular kind is sought.

[32] It is important that the rules of courts are used as tools to facilitate access to courts rather than hindering it. Hence, rules are made for courts and not that the courts are established for rules. Therefore, the primary function of the rules of courts is the attainment of justice. But, sometimes, circumstances arise which are not provided for in the rules. The proper course in those circumstances is to approach the court itself for guidance. After all, in terms of section 173, each superior court is the master of its process.

[42]…,. The language of the section suggests that each court is responsible and controls the process through which cases are presented to it for adjudication. The reason for this is that a court before which a case is brought is better placed to regulate and manage the procedure to be followed in each case so as to achieve a just outcome. For a proper adjudication to take place, it is not unusual for the fact of a particular case to require a procedure different from the one normally followed. When this happens, it is the court in which the case is instituted that decides whether a specific procedure should be permitted.”…,.

It goes without saying, that, rules of court serve an important purpose.

They must not, and, cannot be disregarded unless the court has been persuaded, on very strong grounds, to do so.

This is why a litigant who wishes to exercise the right to access the court is required to follow certain and specified procedures. In this context, rules of court not only ensure certainty of the processes of court proceedings, the litigants are also provided with a fair playing ground for the adjudication of disputes.

It is fair to state, that, the rules ensure that the interests of justice are served.

WHETHER THE APPLICATION HAS PROSPECTS OF SUCCESS ON THE MERITS

The Court holds, that, it is not in the interests of justice that the applicants be granted leave for direct access in this matter. The view of the Court is that, upon considering the matter, the applicants have not established that the application has prospects of success on the merits. The reasons for so finding are on two bases:

(i) The first is that the applicants have not made an application for the rescission in terms of the rules that entitle them to apply for rescission of the impugned judgment by the Constitutional Court in the exercise of its powers under the Constitutional Court Act. They have, instead, purported to rely on section 24 of the Constitutional Court Act, which provision does not provide for such an application....,.

The Court will proceed on the basis, that, this application is one in terms of section 24 of the Constitutional Court Act 5/2021 (“the Act”), which provides as follows:

“24 Correction, variation, and rescission of judgments or orders

(1) The Court may, in addition to any other power it may have, on its own initiative 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 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.”

In turn, section 26(1) of the Constitutional Court Act [Chapter 7:22] provides as follows in relevant part:

“26 Rules of Court

(1) Subject to subsections (2) and (3), the Chief Justice, after consultation with a
committee appointed by him or her, may make rules relating to any of the following matters —

(a) The manner and form of procedure before the Court; and

(b)…,.

(c)…,.

(d)…,.

(e)…,.

(f)…,.

(g)…,.

(h)…,.

(i) The time within which any requirement of the rules is to be complied with and the extension of such time; and

(j)…,.

(k)…,.

(l)…,.

(m)…,.

(n)…,.

(o)…,.

(p)…,.

(q)…,.

(r)…,.

(s) Generally, to give effect to the jurisdiction conferred upon the Court by any enactment; and

(t)…,.

(2) Rules shall have not effect until they have been approved by the Minister and published in a statutory instrument.

(3) The Constitutional Court Rules, 2016 published in Statutory Instrument 61 of 2016, shall continue to be in force until they have been repealed or amended.”

In casu, the applicants contend, that, the judgment was not only granted in error; additionally, it adversely affected their right to occupy the Stands as beneficiaries under the land reform programme.

In terms of section 24(1)(a) of the Constitutional Court Act, the Constitutional Court has the power to correct, rescind or vary any judgment that was erroneously granted in the absence of a party affected thereby.

On a proper construction of the provisions set out above, the Court's jurisdiction is invoked 'upon the application of a party affected'.

I do not understand the provisions to mean that a party may apply to court absent reference to a particular rule of court.

Section 24 of the Constitutional Court Act spells out the Court's substantive power once seized with an application. Section 24 of the Constitutional Court Act is not the procedural route one takes to make an application. It gives the Constitutional Court the jurisdiction to entertain such an application.

To enable a court to determine the application, an applicant must place reliance on the Rules of the Court promulgated to regulate access to that court.

The need for the adherence to Rules is a requirement even where the dispute sought to be adjudicated is rooted in Constitutional Law.

In Marx Mupungu v Minister of Justice, Legal & Parliamentary Affairs & Ors CC07-21, the Court observed:

“Additionally, it is necessary to underscore the point, that, access to this Court, or any subordinate court, under section 85 is subject to regulation by rules of court. This is made explicitly clear by section 85(3) which dictates, that, rules of every court must provide for the procedure to be followed in cases where relief is sought under section 85(1). It is also spelt out in section 167(5) of the Constitution vis-a-vis direct access to the Constitutional Court.

One cannot institute an action or application in the High Court, or any other subordinate court, without due observance of and compliance with the Rules of that court. The Rules inform a litigant what is required of him to access the court concerned. If he fails to observe or comply with those Rules, he will inevitably be non-suited.”

Evidently, contrary to the argument by the applicants, the procedural aspects of approaching the Constitutional Court find expression in section 26 of the Constitutional Court Act which provides for the promulgation of rules of Court to regulate the processes of the Constitutional Court.

In subsection (1), provision is made for the manner and form of procedure before the Court as well as the time within which any requirement of the rules is to be complied with and the extension of such time.

It is trite that rules of court provide for the form, manner, and time frame for the bringing of litigation before a court. This is because courts have inherent jurisdiction to control their processes.

Rescission of judgments is one of the procedures that rules of court make specific provision for.

The applicants cannot seek a rescission merely on the premise of the power exercisable by the Court to set aside the judgment in issue. The Court must be requested to exercise its discretion as provided for in the rules.

That has not been done in this case.

It is a trite principle of the law of interpretation, that, statutory provisions in an Act of Parliament must be construed as a whole as opposed to individually. They must be read together. It stands to reason, therefore, that while section 24 of the Constitutional Court Act spells out the Court's power to correct, vary or rescind its judgments or orders, the procedural aspect of the exercise of that power can only be done in compliance with section 26 of the Constitutional Court Act. The rules of the Court have to prescribe the procedure for such exercise.

In terms of Rule 45 of the Rules of the Constitutional Court 2016, in any matter not dealt with in terms of the rules, the practice and procedure of the Court shall follow, as near as may be, the practice and procedure of the Supreme Court, or where the rules of the Supreme Court are silent, the High Court become the default rules.

It is trite, that, the rules of the Supreme Court do not provide for the rescission, correction, or variation of judgments but the High Court Rules so provide.

The High Court Rules, 2021 were promulgated on 23 July 2021.

Rule 29 of the High Court Rules, which provides for the variation and rescission of judgments, reads:

“(1) The court or a judge may, in addition to any other powers it or he or she may have, on its own initiative or upon the application of any affected party, correct, rescind or vary -

(a) An order or judgment erroneously sought or erroneously granted in the absence of any party affected thereby; or

(b) An order or a judgment 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) An order or judgment granted as a result of a mistake common to both parties.

(2) Any party desiring any relief under this rule may make a court application, on notice to all parties whose interests may be affected by any variation sought, within one month after becoming aware of the existence of the order or judgment.”

Whilst the Constitutional Court Act makes provision for the invocation of its jurisdiction, the Rules provide for the procedure under which the Court exercises its jurisdiction.

The applicants have not, however, invoked the rules of court for an order for the rescission of the impugned judgment. They have sought reliance on section 24 of the Constitutional Court Act.

The Rules of the High Court have prescribed the procedure to be followed and are apposite in casu.

The applicants have not made an application in terms of the rules of court.

I am not persuaded that the Constitutional Court Act gives the applicant the right to approach the court for redress. Section 24 of the Constitutional Court Act spells out the power that a court may exercise upon the application of a party. The rules comprise procedural law and must form the premise of a litigant's approach to an appropriate court.

It is trite that courts insist on parties compliance with the rules and that where this has not been done, or is impossible, condonation for failure to adhere to the rules be sought and obtained.

Rule 449, in terms of which relief was sought in Liziwe Museredza & 385 Others v Minister of Agriculture, Lands, Water & Rural Resettlement & Ors CC11-21 is no longer in force.

Reliance should have been placed on Rule 29 of the High Court Rules 2021.

Rule 29(2) of the High Court Rules requires that an application under the rules be brought to Court within a month from the date that the applicant has knowledge of the judgment.

The first applicant, who has assumed a leading role in the litigation surrounding the dispute which is the subject matter of this application, has not stated in categorical terms when she became aware of the judgment. However, there is on record an affidavit deposed to by her on 27 July 2017 in which she makes reference to the judgment sought to be set aside.

This application was only filed on 25 August 2021, a period in excess of four years from when the record reveals the applicants would be taken as having had knowledge of the judgment.

According to Rule 29(2) of the Rules of the High Court 2021, which were promulgated on 23 July 2021, the applicants are out of time.

Even if the matter were to be considered in terms of Rule 449 of the High Court Rules, the applicants would still be out of Court.

It cannot be gainsaid that the applicants have not been vigilant in pursuing relief in casu. The application was not brought expeditiously.

I am fortified in this view by the remarks of GUBBAY CJ in Grantully (Pvt) Ltd & Anor v UDC Ltd 2000 (1) ZLR 361…, to the following effect:

“It was said by the appellants, that, they only became aware that the judgment had been erroneously granted when they received advice of that fact on 25 July 1997, some five years and six months later.

Such length of time, whatever the reason thereof, is unreasonable.

But, what made the appellants wholly undeserving of the Court's indulgence was that after being advised that aggregate interest had been awarded, they allowed a further ten weeks to pass before filing their application. And even when informed by the respondent's legal practitioners, on 27 August 1997, that it was not accepted that the judgment was in any way erroneous, it was five weeks before the necessary relief was sought.

I have, therefore, no hesitation in agreeing with the learned judge that the bringing of the application amounted to an abuse of the process of the Court and was not to be sanctioned.”

I believe that the remarks of the learned jurist are more than apposite in casu.

At the very least, the appellants in Grantully (Pvt) Ltd & Anor v UDC Ltd 2000 (1) ZLR 361 attempted to explain the delay. In the instant case, the applicants have not found it necessary to advise the Court when they became aware of the judgment. This becomes necessary since what was sought is the Court's indulgence.

In the exercise of its discretion, the Court must weigh all the factors that require that an applicant act expeditiously. Unfortunately, the applicants have decided not to be candid with the Court and take it into their confidence.

The delay under Rule 29 of the High Court Rules 2021 or Rule 449 of the repealed rules is inordinate.

The delay, being obvious, condonation for their failure to adhere to the rules ought to have been applied for.

No condonation was sought. They were clearly mistaken in taking that position.

The applicants have failed to adhere to the rules of the Court. They have been unable to bring the application timeously, or, in any event, within the time limits prescribed by Rule 29(2) of the High Court Rules.

In the absence of an order of Court condoning the failure to abide by the rules means, that, the applicants are non-suited.

The court is of the view, that, in the absence of condonation, there is no valid application before the Court. Therefore, there are no prospects of success on the merits due to the failure to adhere to procedural precepts in casu.

CC05-22 : GOVATI MHORA vs EMMACULATA MHORA
Ruled By: PATEL JCC

This is a chamber application for condonation and extension of time within which to file an application for leave to note an appeal against the decision of the Supreme Court under judgment number SC89-20.The instant application was made pursuant to Rule 35 of the Constitutional Court Rules 2016.The applicant craves ...

This is a chamber application for condonation and extension of time within which to file an application for leave to note an appeal against the decision of the Supreme Court under judgment number SC89-20.

The instant application was made pursuant to Rule 35 of the Constitutional Court Rules 2016.

The applicant craves the grant of his application, with no order as to costs.

Background

The two parties involved in this matter are a formerly married couple in terms of the Marriages Act [Chapter 5:11].

Following an irretrievable breakdown in their relationship, the respondent sought a decree of divorce in the High Court. The order sought in the court a quo also regulated the distribution of their perceived matrimonial property.

During the course of those proceedings, the applicant contested the distribution of an immovable property known as House Number 114 Lomagundi Road, Harare. His chief argument was, that, there was no direct contribution towards the purchase of the property by the respondent and hence she was disentitled from any claim to the property as part of their divorce proceeds.

This proposition was countered by the respondent who insisted that she had been the primary caregiver to their family and had remitted the various monies she had earned to the applicant during the subsistence of their marriage.

The applicant's purported former second wife also testified to the same effect on behalf of the respondent. She submitted, that, the respondent had raised various amounts of income that she submitted to the applicant during their marriage.

In the event, the court a quo found in favour of the respondent and granted her a fifty percent share in the property.

Irked by the High Court's determination, the applicant launched a subsequent appeal to the Supreme Court.

From the submitted grounds of appeal, the sole issue that arose for determination was whether the court a quo had erred in awarding the respondent a fifty percent share in the contested immovable property.

It was submitted, on behalf of the applicant, that, the court a quo had adopted a narrow construction of the principle of equality as the respondent had not contributed towards the purchase of the immovable property. It was contended, that, the judgment by the court a quo upset the established jurisprudence regarding the primary considerations for equitable distribution of matrimonial property.

Per contra, the respondent submitted that the court a quo had exercised its wide discretion under section 7 of the Matrimonial Causes Act [Chapter 5:13] (“the Matrimonial Causes Act”). It was contended, that, the High Court, in arriving at its determination, was guided by the Constitution as well as established precedent.

The respondent submitted, that, taking into consideration the circumstances of the case, the court a quo's determination could not be faulted.

Once seized with the matter, the Supreme Court proceeded to first correct the order of the court a quo, that had omitted to grant a decree of divorce before distributing the parties matrimonial property.

On the merits, it re-affirmed the respondent's position, that, section 26(c) and (d) the Constitution, as well as international law, mandated a fair and equitable distribution of matrimonial property. The Supreme Court upheld the court a quo's determination on the basis, that, the court a quo had properly exercised its discretion under the Matrimonial Causes Act.

The Supreme Court also noted, that, the applicant's moral turpitude was a critical factor in the decision of the High Court. The applicant's conduct, in trying to frustrate the equitable distribution of matrimonial property, was held to justify the order granted by the High Court.

Thus, the appeal was held to be meritless and dismissed.

Thereafter, the applicant failed to note an application for leave to appeal against the Supreme Court's decision within the allotted timeframe stipulated by the Constitutional Court Rules, 2016.

Based on the foregoing, the applicant filed the instant application before this Court on 22 March 2022.

The judgment of the Supreme Court was handed down on 29 June 2020 and the Rules of this Court provide fifteen days from the date of judgment to apply for leave to note an appeal against the judgment.

The applicant was evidently barred from noting his application for leave to appeal against the Supreme Court's decision and hence he has filed the present application for condonation.

In his founding papers filed of record, the applicant averred that his application for condonation ought to be granted as the intended application for leave to note an appeal enjoyed prospects of success.

It was contended, that, the applicant enjoyed a right to petition the Constitutional Court under section 69(3) of the Constitution, and, in the present instance, such access hinged on the existence of a constitutional matter in the subordinate court. He averred, that, the Supreme Court over-extended the import of the notion of “equality” when interpreting the provisions of the Matrimonial Causes Act.

It is on the basis of the foregoing, that, the applicant submitted that he had a justiciable right to equality, under section 56 of the Constitution, that ought to be protected by this Court.

He averred, that, section 56(3) of the Constitution, in particular, prohibited every person, including judicial officers, from discriminating against litigants based on their culture.

He asserted, that, the High Court's determination was primarily influenced by his cultural practice of taking another spouse during the subsistence of his marriage to the respondent.

The applicant advanced the position, that, the Supreme Court consequently failed to protect his right to equality. This constituted a flagrant violation of his fundamental right which ought to be redressed by this judicial forum.

Regarding the extensive delay in applying for leave to note an appeal, the applicant pleaded that he had limited financial liquidity to afford legal consultation and was oblivious of the prescribed period to access this Court.

He also averred, that, the Covid-19 pandemic militated against the filing of the present application due to onerous lockdown restrictions.

The applicant conceded, that, the extent of the delay in filing the application was inordinate but countered this concession by reasoning that, at any rate, the respondent was not prejudiced by the delay due to the peculiar circumstances of the matter.

The application was strenuously opposed by the respondent.

She averred, that, the Supreme Court was not seized with a constitutional matter and did not determine any constitutional issues in rendering its verdict. The respondent submitted, that, the draft grounds of appeal filed by the applicant related to general points of law.

It was contended, that, the judgement of the Supreme Court did not stray from the established legal precepts governing the distribution of matrimonial property in determining the rights of the parties.

The application was deemed to be an abuse of court process due to the obvious absence of any constitutional issue in the Supreme Court's judgment.

Submissions by Counsel

Counsel for the applicant, conceded that there was an extensive delay in filing the present application and that such delay was inordinate. She countered her concession by arguing, that, the applicant had been pondering his available remedies due to the complexity of the matter. It was submitted, that, the applicant sought legal advice from counsel, a process that extended the delay in filing the present application.

When it was pointed out that the founding affidavit on record contradicted her submissions, counsel admitted that the applicant had not been candid with the Court.

She then submitted, that, the applicant's precarious financial position had prevented him from engaging legal counsel timeously.

Upon further inquisition by the Court, it was conceded that the applicant's explanation for the delay was unreasonable.

Addressing the Court on the balance of convenience between the parties, counsel for the applicant submitted, that, the respondent would not suffer any financial prejudice if leave to appeal were to be granted.

She insisted, that, the filing of the matter was not predicated on the election of the respondent to exercise her right to liquidate her fifty percent holding in the disputed immovable property. It was advanced that other measures could be employed to alleviate any possible prejudice suffered by the respondent as a result of the petition to this Court.

To buttress her submissions, counsel for the applicant submitted, that, the applicant would provide for the respondent's financial needs whilst this Court dealt with the substance of the parties dispute.

As regards the existence of a constitutional matter, counsel for the applicant submitted, that, the Supreme Court amended the law by awarding the respondent a fifty percent share in the property.

When pressed on the exact constitutional issue determined a quo, counsel conceded that the Supreme Court did not explicitly deal with any constitutional matter. Rather, it was the import of its determination that raised a constitutional issue.

She submitted, that, the court a quo legislated over and above what was provided for in the Matrimonial Causes Act.

In essence, it was argued that the Supreme Court failed to properly apply the principles set out in the Matrimonial Causes Act.

Counsel for the applicant submitted, that, the applicant was punished for conducting his marital affairs in a polygamous manner. She indicated that the judgment reprimanded the applicant for indulging in a potentially polygamous marriage during his union with the respondent.

In any event, counsel for the applicant was unable to pinpoint specific portions of the Supreme Court's judgment that admonished the applicant's polygamous conduct.

In a bid to lend credence to her submission on this aspect, she argued that the issue was addressed in the proceedings before the High Court.

However, the High Court judgment was not made part of the record before this Court.

Nonetheless, counsel for the applicant persisted with her argument, that, the Supreme Court discriminated against the applicant on the grounds of custom and culture and that this raised a constitutional matter.

Per contra, counsel for the respondent submitted, that, the applicant had conceded that the delay in filing the instant application was inordinate and urged the Court to disregard the reasons proffered in explaining the delay.

She referred to correspondence on record between the parties that highlighted their concurrence in implementing the order of the High Court that had been upheld on appeal. It was submitted, that, the applicant initially did not highlight any dissatisfaction or intent to appeal against the Supreme Court's determination.

Thus, counsel for the respondent argued, that, the present proceedings were only prompted by the respondent's election to sell and liquidate her fifty percent share in the disputed property.

As regards the balance of convenience, counsel for the respondent highlighted that the respondent was advanced in age, well beyond 65, and that the protracted legal dispute threatened her already precarious financial position.

She submitted that her client needed the judgment of the High Court to be executed so that she could access the financial proceeds from the sale of the immovable property.

Counsel for the respondent also noted that the applicant had not contested the respondent's submissions through an answering affidavit and that therefore her averments were to be deemed uncontested.

Counsel for the respondent vehemently rebutted the notion that the Supreme Court dealt with a constitutional question in its judgment.

She submitted, that, reference was made to section 26 of the Constitution in its judgment to highlight that the Supreme Court was alive to the application of the principle of equality in determining the rights of the parties in terms of the Matrimonial Causes Act.

It was contended, at any rate, that, the Supreme Court's application of the aforementioned section 26 of the Constitution was not an intended ground of appeal as formulated in the draft notice of appeal. She argued, that, the applicant's objection was against the application of the Matrimonial Causes Act. Thus, the prospective appeal was doomed to fail on the grounds advanced by the applicant.

It was submitted that this Court could not exercise its discretion in a non-constitutional matter.

Counsel for the respondent concluded, that, the application amounted to an abuse of process due to the absence of any prospects of success....,.

Existence of a Constitutional Matter

The Constitutional Court is a specialised court whose jurisdiction is limited to strictly constitutional matters, as outlined in section 167(1)(b) of the Constitution.

This emphasis, on the existence of a constitutional question, is reinforced in the rules that govern access to this Court. The relevant rules in this regard are Rule 35, which governs applications for condonation and extension of time, and Rule 32 which deals with the substance of the prospective application for leave to note an appeal should the Court accede to the request for condonation.

Rule 32(2) of the Constitutional Court Rules provides the following on the right of appeal to this Court:

“(2) A litigant who is aggrieved by the decision of a subordinate court on a constitutional matter only, and wishes to appeal against it to the Court, shall, within fifteen days of the decision, file with the Registrar an application for leave to appeal and shall serve a copy of the application on the other parties to the case in question, citing them as respondents.”…,.

The requirement of the existence of a constitutional matter, as an imperative, is further highlighted by the succeeding Rule 32(3) of the Constitutional Court Rules which mandates that an application for leave to appeal to this Court must contain or have attached to it a statement setting out clearly and concisely the constitutional matter raised in the decision sought to be appealed against.

In addition, the founding affidavit supporting the application must verify the fact, that, the cause of action arises from a decision of the subordinate court premised on a constitutional matter.

Therefore, it is axiomatic, that, where the subordinate court has not determined a constitutional issue, a litigant has no right of appeal to this Court.

Access to the jurisdiction of this Court unavoidably hinges upon the existence of this juridical fact.

It is unarguably the sine qua non of any approach to the specialised forum of the Constitutional Court.

The applicant's counsel pinpointed section 26(c) of the Constitution, which was referred to in the impugned judgment, as establishing a basis for petitioning this Court.

Counsel for the applicant submitted, that, the Supreme Court violated the import of equality in respect of the rights of the parties at the dissolution of their marriage in applying the principles enunciated in the Matrimonial Causes Act.

This position was countered by counsel for the respondent who insisted, that, the Supreme Court disposed of the matter on a non-constitutional basis.

She cited the case of Chiite & Ors v The Trustees of the Leonard Cheshire Homes Zimbabwe Central Trust 2017 (1) ZLR 603 (CC) to support the contention, that, a prospective appeal to this Court ought to be premised on a constitutional question that was determined by the lower court. She pointed to the prospective grounds of appeal as being devoid of any meaningful constitutional challenge.

It is an established position in our jurisprudence, that, mere reference to the Constitution by a subordinate court does not establish a constitutional issue.

In casu, the application for condonation, and the attached draft application for leave, fail to meet the essential requirement of a constitutional matter as obligated by the Constitution and the Rules.

The applicant's founding affidavit does not set out the constitutional matter that was determined by the Supreme Court.

The applicant seems keenly aware of this fact as evidenced by the poverty of his flimsy reference to section 56 of the Constitution in his papers in seeking to establish a basis for invoking the jurisdiction of this Court.

Furthermore, the attempt to latch onto section 26(c) of the Constitution, in the course of submissions by counsel for the applicant, is irreconcilable with the applicant's pleadings.

The founding affidavit and the draft application for leave are patently devoid of any mention of the specific manner in which the Supreme Court is alleged to have violated the rights protected under that constitutional provision.

This Court, in The Cold Chain (Pvt) Ltd t/a Sea Harvest v Makoni 2017 (1) ZLR 14 (CC), clarified the parameters of a constitutional matter as follows:

“The mere reference to the Constitution did not make what was said a constitutional matter. Reference by the Supreme Court to section 176 of the Constitution was an obiter dictum. The Constitution was referred to after the ratio decidendi had been arrived at and declared by the court. The effect of what the Court said in relation to section 176 of the Constitution was that its reasoning was not inconsistent with the provisions of that section. That is different from saying the decision on the issues before the court were based on the interpretation and application of section 176 of the Constitution.

It follows, that, where a subordinate court did not take a view of the case that required it to interpret and apply a constitutional provision to determine the issue raised, the matter does not pass for a constitutional matter.

Application for leave to appeal will be dismissed as the subordinate court will have rested its decision on an independent non-constitutional ground.”…,.

The above position was reiterated in Madyavanhu v Saruchera & Ors 2019 (1) ZLR 434 (CC)…, wherein the following was observed regarding the right of appeal to this Court:

“A person has a right to appeal against a decision of a subordinate court on a constitutional matter only. A decision of a subordinate court on a non-constitutional issue is unappealable because the Court has no jurisdiction to review such a decision. The purpose of the procedure of an application for leave to appeal, provided for in Rule 32(2) of the Rules, is to show that the Court has jurisdiction, as provided for in the Constitution, to hear and determine the appeal. In other words, the purpose of the procedure is to ensure that the applicant has a right of appeal to the Court against the decision of the subordinate court.”

From the above-cited authorities, it is evident that an application for leave to note an appeal against the determination of a lower court in the Constitutional Court hinges upon the existence of a constitutional matter.

The present application for condonation and extension of time cannot be granted as the prospective application for leave to appeal fails to satisfy the threshold for accessing the jurisdiction of this Court. The reference, by the court a quo, to the concept of equality, enshrined in section 26(c) of the Constitution, was purely tangential and not in any way dispositive of the main non-constitutional issues determined by that court.

Thus, the absence of a constitutional matter critically undermines the validity of the instant application....,.

The most pertinent factor in the disposition of this matter is the absence of a constitutional matter.

It is evident that the Supreme Court did not determine any constitutional issue in deciding the questions before it. Consequently, the applicant has no discernible prospects of success on appeal should leave to appeal against the judgment of that court be granted....,.

The application be dismissed with no order as to costs.

CC08-22 : IGNATIUS CHOMBO vs THE NATIONAL PROSECUTING AUTHORITY and THE PROSECUTOR GENERAL and THE ATTORNEY GENERAL
Ruled By: GARWE JCC, MAKARAU JCC and PATEL JCC

This is an application for leave to appeal against a decision of the Supreme Court handed down on 25 November 2021.

Holding that there was no proper appeal before it, the Supreme Court struck from its roll the appeal that the applicant had noted against a judgment of the High Court.

Using its review powers, the Supreme Court proceeded to set aside the proceedings of the High Court. In doing so, it held that the High Court did not have the requisite jurisdiction to determine the matter as it did or at all.

It is this order that the applicant intends to appeal against, with leave.

Background

The applicant was arrested by the police on 23 November 2017. He is facing one count of contravening the Prevention of Corruption Act [Chapter 9.16], and one count each of contravening sections 174(1)(a) and 126 of the Criminal Law (Codification and Reform) Act [Chapter 9.23]. These relate to abuse of office as a public officer and fraud respectively. He is appearing before the Magistrates Court.

Prior to his arrest by the police, the applicant alleges that he was unlawfully arrested by the military police, in particular, seven men in military uniform and armed with assault rifles. He further alleges that these seven men, in military uniforms, armed with assault rifles, blindfolded him and took him to an unknown place where they forcibly held and interrogated him for nine days.

Thereafter, the applicant was formally arrested by the police.

Upon being arraigned before a magistrate, the applicant pleaded with the court not to be placed on remand for the alleged offences as his arrest was unlawful.

In essence, he was seeking, as consequential relief, a permanent stay of his prosecution on the three charges.

In this regard, he contended that his arrest, for the purposes of the law, had commenced when he was arrested by the unknown military personnel, agents of the State and that such arrest was patently unconstitutional as he was not brought before a court within the forty-eight hours stipulated in the law.

The arrest and torture of the applicant by the men in military uniform was not challenged by the first and second respondents before the magistrate or in any proceedings thereafter.

In arguing that the applicant's rights had been duly observed upon his arrest, the first and second respondents confined their submissions to the events that unfolded after the formal arrest of the applicant by the police.

Ruling on the unlawful arrest and torture of the applicant, the trial magistrate found, that, the applicant had failed to prove that the seven men in military uniform, and armed with assault rifles, were agents of the State. After further finding that his subsequent arrest by the police was procedural, the trial magistrate placed the applicant on remand, denied him bail, and remanded him in custody.

The applicant was, in due course, granted bail by the High Court.

In doing so, the High Court expressed its disquiet over the failure by the trial magistrate to properly investigate the alleged infringements of the applicant's rights and freedoms.

The trial of the applicant commenced.

Whilst it was underway, the applicant approached the High Court, under section 85(1) of the Constitution, once again seeking a permanent stay of the criminal proceedings against him on the basis that his rights and freedoms had been infringed as detailed above.

At the hearing of the matter before the High Court, the issue of the jurisdiction of that court to determine the matter during the pendency of the criminal trial before the Magistrates Court arose.

The High Court dismissed the contention that it did not have the requisite jurisdiction to determine the matter.

It nevertheless went on to dismiss the matter on the basis, that, the torture of the applicant was for no apparent reason in that it had not elicited any evidence or confession from the applicant. Being gratuitous, the torture of the applicant by the military was, at law, not a sound basis for permanently staying the criminal proceedings against him, the High Court went on to rule.

Dissatisfied with the dismissal of his application by the High Court, the applicant noted an appeal to the Supreme Court. It is not necessary that I set out the grounds of the appeal. This is so, because, in its decision, the Supreme Court neither determined nor adverted to these grounds.

It is however pertinent to record, that, the finding by the High Court, that it had jurisdiction in the matter, was not appealed or cross-appealed against.

Mero motu, the Supreme Court raised the issue.

It thereafter properly invited the parties to make additional submissions addressing the legal position governing the jurisdiction of the High Court in the matter.

It was the view of the Supreme Court, and correctly so, that, the provisions of section 175(4) of the Constitution were integral to the appeal that was before it, and, in particular, on the issue it had raised with the parties.

This is the provision that details the procedure to be adopted when a constitutional matter arises during any court proceedings.

The Supreme Court was keenly alive to the pending criminal proceedings before the Magistrate's Court, and during which proceedings the constitutional question of the legal redress of the applicant's unlawful arrest and torture had arisen.

Consequently, the Supreme Court found, that, by approaching the High Court during the pendency of the proceedings before the Magistrates Courts, the applicant had contradicted the precepts of certainty of process as articulated by this Court in Chihava & Ors v Principal Magistrate & Anor 2015 (2) ZLR 31 (CC).

I advert to this point in greater detail below.

In the final analysis, the Supreme Court held, that, the ratio decidendi in Chihava & Ors v Principal Magistrate & Anor 2015 (2) ZLR 31 (CC) applied in full force to the facts before it. It also made the following four observations:

1. That, the Magistrates Court had vantage over the High Court in that it had heard evidence on the matter whereas the High Court was relying on an affidavit;

2. That, the Magistrates Court had jurisdiction in the matter;

3. That, the proceedings before the High Court had the potential to disrupt the proceedings in the Magistrates Court; and

4. That, the approach to the High Court was novel and was not supported by an elaborate procedure as the one set out in the rules of the Constitutional Court.

As a result, the decision by the High Court was found, rather euphemistically, to have been made on no sound jurisdictional basis and was accordingly set aside. In short, the Supreme Court held, that, the High Court had no jurisdiction in the matter.

The Intended Appeal

In the event that he is successful in the application for leave, the applicant intends to appeal against the decision of the Supreme Court on the following three grounds:

“1. The court a quo misdirected itself in not finding, that, the fact that the High Court is a 'superior court of record' under section 170 of the Constitution prohibited the Supreme Court from regarding the High Court as one of the 'inferior courts of justice' referred to in section 25 of the Supreme Court Act [Chapter 7.13].

2. The court a quo misdirected itself and erred in law in applying the precepts set out in Chihava & Ors v Principal Magistrate & Anor 2015 (2) ZLR 31 (CC) to take away the jurisdiction of the High Court to determine the appellant's application brought to it under section 85 of the Constitution, notwithstanding the pendency of criminal proceedings in the magistrates court.

3. The court a quo erred and misdirected itself in not finding, that, once the High Court, rightly or wrongly, assumed jurisdiction and determined on the merits, an application under section 85 of the Constitution, the resultant judgment could not be a nullity.”

The broad issue that falls for determination in this application is whether it is in the interests of justice that the applicant be granted leave to appeal to this Court against the order of the Supreme Court.

The narrow and more specific issue is whether the decision of the Supreme Court was on a constitutional issue that was clearly articulated, and, additionally, whether the intended appeal enjoys prospects of success.

I define the issues narrowly in this fashion following the requirements of the law governing the determination of applications for leave to appeal to this Court....,.

The first ground of appeal raises the issue of the review jurisdiction of the Supreme Court over the proceedings and decisions of the High Court.

It is the appellant's contention, that, the High Court is a “superior court of record” under section 170 of the Constitution and that this in turn prohibits the Supreme Court from regarding it as one of the “inferior courts of justice” referred to in section 25 of the Supreme Court Act [Chapter 7.13].

As correctly noted by the applicant, section 170 of the Constitution provides that the High Court is a superior court of record.

The term “superior court of record” is however not defined in the Constitution.

Counsel for the applicant relied on the remarks by the Supreme Court in Chidyausiku v Nyakabambo 1987 (2) ZLR 119 (S) where the court held, that, the High Court was not an inferior court as contemplated by section 25 of the Supreme Court of Zimbabwe Act.

Whilst this decision has not been specifically overruled subsequently, it has been studiously and routinely ignored by the Supreme Court itself.

Quite apart from the fact that the Supreme Court is not bound by its own decisions, this is one decision that is well known in the jurisdiction for the fact that it has been ignored more times than it has been applied.

For the purposes of determining this application, it is not necessary that I debate and determine the stare decisis effect of Chidyausiku v Nyakabambo 1987 (2) ZLR 119 (S) generally or seek to reconcile it with the numerous later decisions of the Supreme Court that have clearly gone against it.

This is so because it is my considered view, that, this application, and the intended appeal, turn and fall by the way side on the basis of the second issue raised by the applicant.

In the second ground of the intended appeal, the applicant contends that “the court a quo misdirected itself and erred in law in applying the precepts set out in Chihava & Ors v Principal Magistrate & Anor…, to take away the jurisdiction of the High Court to determine the appellant's application brought to it under section 85 of the Constitution, notwithstanding the pendency of criminal proceedings in the Magistrates Court.”

I cite in the contention the first ground of the intended appeal in full.

That the decision of the Supreme Court was squarely based on the ratio decidendi in Chihava & Ors v Principal Magistrate & Anor 2015 (2) ZLR 31 (CC) is not in dispute.

The ratio decidendi in Chihava & Ors v Principal Magistrate & Anor 2015 (2) ZLR 31 (CC), correctly understood, has a fairly broad and far-reaching impact on the right of persons to access a court in terms of section 85(1) of the Constitution for the enforcement of fundamental rights and freedoms in circumstances where section 175(4) of the Constitution can also, and should, consequently apply.

I understand the ratio decidendi of the case to lay down the legal proposition, unequivocally and without exception, that, any person who is appearing before any court and intending to raise and rely on any alleged violation of their fundamental rights or freedoms for any relief, must invoke the provisions of section 175(4) of the Constitution or forever lose their right to claim relief for such violations.

Put differently, Chihava & Ors v Principal Magistrate & Anor 2015 (2) ZLR 31 (CC) holds, that, the right of any person to access a court, in terms of section 85(1) of the Constitution, if that person is already a party to proceedings before another court, is completely negated and the constitutional jurisdiction of all other courts is ousted.

I pause to note, that, this negation of the right to access other courts or the complete ouster of the jurisdiction of other courts, other than the court wherein the proceedings are underway, is not a mere rule of practice and procedure which, in the interests of justice, may be departed from.

It is an interpretation of the Constitution by this Court.

It therefore forms part of the body of the Constitutional Law of this jurisdiction on access to the courts to enforce a fundamental right or freedom.

In consequence of the above, the broad position of the law then becomes, that, where a person is already before a court in any proceedings, an approach to any other court, in terms of section 85(1) of the Constitution, for the enforcement of a fundamental right or freedom, outside the provisions of section 175(4) of the Constitution, is legally incompetent.

It begets a nullity for want of jurisdiction.

The other court so approached is stripped of its constitutional jurisdiction under section 85(1) by the availability of the procedure under section 175(4).

The above interpretation of the Constitution, by implication, rightly or wrongly, also supersedes and overrules the common law position that grants the High Court inherent jurisdiction over all persons and all matters.

It would appear that the legal position that I have outlined above, unduly restrictive on the right to access courts for the enforcement of fundamental rights and freedoms as it seems to be, is the position that obtained under the repealed Constitution.

It was the settled position under that Constitution, that, any constitutional issues arising in a lower court, during the course of any proceedings, had to be referred to this Court in terms of section 24(2) and could not be brought, pursuant to section 24(3), as a fresh cause of action under section 24(1): see Jesse v Attorney-General 1999 (1) ZLR 121 (S)…,.

Notwithstanding the adoption of the current Constitution, the position of the law remains unchanged.

Section 175(4) of the Constitution is the equivalent of section 24(2) of the repealed Constitution whilst section 85(1) is the current version of section 24(1), albeit improved.

That, the two provisions are located in different chapters of the Constitution detracts not from their effect and import as interpreted by this Court.

If I have correctly understood its ratio decidendi, then, Chihava & Ors v Principal Magistrate & Anor 2015 (2) ZLR 31 (CC) is authority for the simple proposition, that, where any person is before any court on any non-constitutional matter, but intends to seek redress for the alleged breach of his or her fundamental rights and/or freedoms arising in connection with that matter, he or she must raise the alleged breach before that court and invoke the provisions of section 175(4) of the Constitution if he or she intends to have the matter determined by this Court.

The party may also petition that court directly for any appropriate relief.

The net effect of this position is, that, any purported approach to another court, in terms of section 85(1) of the Constitution, under the circumstances, is not only impermissible but is a nullity as the constitutional jurisdiction of all other courts, the High Court included, is not only arrested but is lost by operation of law.

The import of the decision in Chihava & Ors v Principal Magistrate & Anor 2015 (2) ZLR 31 (CC) is thus not only to render section 175(4) of the Constitution as regulating access to the Constitutional Court on issues arising during proceedings before any court, as argued by counsel for the applicant, but to render section 85(1) of the Constitution redundant and of no force and effect where proceedings involving the applicant are pending before a court.

On the basis of the above, I must reject the argument by counsel for the applicant, that, section 85(1) of the Constitution creates unimpeded access to the High Court.

It does not always do so.

It only does so where there are no pending proceedings before any other court to which the applicant is a party.

In casu, the applicant was appearing before the Magistrates Court where he correctly raised the allegations of the breach of his fundamental rights. By the mere fact that he was appearing before the Magistrate's Court where he was obliged to raise such allegations, the constitutional jurisdiction of all other courts, under section 85(1) of the Constitution, the High Court, and this Court included, was thereby extinguished and lost.

This is the import of the ratio in Chihava & Ors v Principal Magistrate & Anor 2015 (2) ZLR 31 (CC) which the Supreme Court correctly applied.

The ratio of Chihava & Ors v Principal Magistrate & Anor 2015 (2) ZLR 31 (CC), however, does not extinguish the right of the applicant to access this Court under section 85(1) of the Constitution, alleging that a lower court has wrongfully refused a request for a referral made under section 175(4) of the Constitution.

The cause of action in that matter will be the refusal by the lower court to refer the matter to this Court and not the alleged violation of the fundamental rights or freedoms giving rise to the referral.

It is therefore my finding, that, the applicant enjoys no prospects of success on the second ground of the intended appeal. It is most unlikely that this Court will reverse the order of the Supreme Court and find, instead, that, the High Court enjoyed jurisdiction, inherent or otherwise, in the matter.

By parity of reasoning, the third ground of the intended appeal falls by the wayside.

The assumption of jurisdiction by the High Court, in the circumstances of this matter, was erroneous and grievously so. It begot nothing that can be salvaged. Once it is accepted that the High Court did not have any jurisdiction in the matter that concludes the inquiry. Its proceedings fall away automatically by operation of law.

There is thus no possibility, in the circumstances of this matter, that, this court will find, as contended by the applicant, that “the court a quo erred and misdirected itself in not finding that once the High Court, rightly or wrongly, assumed jurisdiction and determined on the merits, an application under section 85 of the Constitution, the resultant judgment could not be a nullity.”

Disposition

The applicant has no prospect of success on its main contention that the High Court had jurisdiction in the matter that was placed before it. Accordingly, his application for leave to appeal cannot succeed.

Regarding costs, I see no justification for making an award of costs in this matter.

In the result, I make the following order:

The application is dismissed with no order as to costs.

CC09-22 : MINISTER OF MINES & MINING DEVELOPMENT and THE PROVINCIAL MINING DIRECTOR FOR MIDLANDS PROVINCE vs FIDELITY PRINTERS & REFINERS (PVT) LTD and JONAH NHEVERA
Ruled By: GOWORA JCC

This is an application for condonation for the late filing of an application for leave to appeal conjoined with the application for leave to appeal.

The applicants have filed this application in terms of Rule 5 as read with Rule 32 of the Constitutional Court Rules 2016 (the Rules). It is a composite chamber application for condonation and for leave to note an appeal against the decision of the Supreme Court in case number SC107-21.

FACTUAL BACKGROUND

The first applicant in this matter is the Minister of Mines and Mining Development, with the second applicant being the Provincial Mining Director for Midlands Province.

In the case before the Supreme Court, they were the first and second respondents respectively.

The first respondent in this application is Fidelity Printers & Refineries (Pvt) Ltd, a company duly incorporated following the laws of Zimbabwe. The first respondent was the appellant in the Supreme Court.

The second respondent is a male Zimbabwean citizen who was cited as the third respondent a quo.

The subject of the dispute is a mine, namely, Mirage 3 (hereinafter referred to as the mine). It is situated in Kwekwe in the Midlands Province.

The first and second respondents were deadlocked in a dispute regarding the ownership of the mine as they both claimed the right to occupy the mine and to exploit gold sand ore contained therein. Both parties claimed ownership rights from their respective certificates of registration in the mine with the Ministry of Mines and Mining Development.

The mine was initially registered in favour of the first respondent under certificate of registration No.8132. In June 2020, the applicant revoked the certificate of registration in favour of the first respondent and declared the mine forfeit. In July 2020, a new certificate was issued and registered in the name of the second respondent under Special Grant No.8202.

Subsequent to these developments, the first respondent wrote to the first and second applicants and requested information about any arrears relating to statutory payments over the claim. In response, the second applicant informed the first respondent, that, he could not issue an inspection invoice for a forfeited mine. The second applicant indicated, that, the mine had been forfeited on 5 June 2020 in terms of section 260 as read with section 272 of the Mines and Minerals Act [Chapter 21:05] (the Act).

The first respondent reacted to the notification and filed an urgent chamber application in the High Court under case number HC85/21. It submitted, that, the forfeiture of its claims, in June 2020, was invalid, palpably arbitrary, and violated every known procedure in the Administrative Justice Act [Chapter 10:28] (the Administrative Justice Act) which ensured fairness.

In the application, the first respondent challenged the forfeiture and relocation as unlawful on the premise that the procedure adopted by the applicants failed to comply with the dictates of the law as prescribed in section 220 of the Mines and Minerals Act.

The first respondent sought the following as interim relief:

(i) Suspension of the operation of the forfeiture order by the Provincial Mining Director;

(ii) The suspension of the operation of the special grant to the second respondent;

(iii) An interdict against the second respondent from entering the mine; and

(iv) The setting aside of the forfeiture of the mine.

The interim relief sought was granted on 17 February 2021.

After the grant of the interdict in HC85/21, the second respondent filed his urgent chamber application in Bulawayo under case number HC55/21.

In his founding affidavit, he averred, that, Fidelity Printers and Refiners (Pvt) Ltd had failed to pay inspection fees and the mine was forfeited to the State in June 2020. In addition, the second respondent averred, that, the first respondent had gone on a looting spree of the gold ore sands and that it was carrying out illegal mining activities by transporting the gold ore sands from the mine to another mine, namely, GMI Red Baron Mine.

The second respondent sought the following orders as interim relief:

(i) An interdict restraining the first respondent from removing the gold ore sands from the mine; and

(ii) That he, the second respondent, be granted the right to put in place security both at the mine and at GMI Red Barons premises to prevent the removal and processing of the gold ore sands.

The protracted dispute between the parties resulted in the consolidation of the matters by the High Court.

The judgment from that consolidation was the subject of appeal in the Supreme Court.

At the hearing of the consolidated application before the High Court, the first respondent argued, that, in terms of section 260 of the Mines and Minerals Act, the mining authorities should have afforded it an opportunity to make representations before a decision to forfeit its mining claim was made.

It further argued, that, the first and second applicants were obliged by law to have sent a notice of forfeiture to the miner before deeming the mine forfeited.

Finally, it argued, that, it did not suffice for the second applicant to place forfeiture notices on a board and that his or her approach violated the right to be heard in terms of section 3 of the Administrative Justice Act.

On the contrary, the applicants and the second respondent submitted, that, the first respondent wished to read unspecified provisions into the Mines and Minerals Act.

They argued, that, no notice of forfeiture was required to be issued in terms of the Mines and Minerals Act and that, although the first respondent was a wholly owned Government entity, its status did not absolve it from paying inspection fees as required by statute.

In its determination, the High Court held, that, the miner had an obligation to motivate the annual inspection of his or her mining location, after which the miner would pay a renewal fee. After that, an inspection certificate would be granted.

It further determined, that, sections 260 and 270 of the Mines and Minerals Act, which formed the crux of the first respondent's argument, were not the beginning and the end of the forfeiture process, but had to be read in conjunction with section 197 to section 199 of the Mines and Minerals Act which provide for the preservation of mineral rights and the processes to be followed by both the miner and the authorities regarding inspection certificates and the forfeiture of mines.

The court further held, that, section 260 of the Mines and Minerals Act was worded in peremptory terms and that a failure to obtain an inspection certificate made the mine liable to forfeiture.

Lastly, it ruled that the right to be heard was embedded in section 271 of the Mines and Minerals Act and that the provision in contention did not grant an individual the right to be given notice, a warning, or a letter of forfeiture. There was, in addition, no provision for the demand of payment of outstanding fees in respect of a mining location.

It was against this decision that the first respondent launched its appeal to the Supreme Court.

The grounds of appeal, and the subsequent relief sought, did not relate to any constitutional issues.

The grounds of appeal were the following:

“1. The court a quo erred in its interpretation and implementation of section 260 of the Mines and Minerals Act [Chapter 21:05]. Such provision does not permit the first and second respondent to act arbitrarily and without due notice to an affected party such as the appellant.

2. Concomitantly, the court a quo also misdirected itself in finding, that, the second respondent had acted lawfully when such respondent had not given proper prior notice before forfeiting the appellant's mining rights in Mirage 3 Kwekwe.

3. Furthermore, the Court a quo also erred in determining the provisions of the Mines and Minerals Act [Chapter 21:05] and excused the first and second respondent from giving credence to the appellant's rights as espoused in the Administrative Justice Act [Chapter 10:28].

4. Additionally, the court a quo grossly misdirected itself in finding, that, in the circumstances, the third respondent had lawfully been issued a Special Grant, which Grant only came into existence because of the unlawful forfeiture of the appellant's mining rights in respect of Mirage 3 Kwekwe.”

In the premises, the first respondent sought the following as relief on appeal:

“1. THAT, the instant appeal succeeds with costs.

2. THAT, the order of the court a quo be set aside and substituted with the following:

2.1 The Provisional Order issued by this Court in HC85/21 on 17 February 2021 is hereby confirmed.

2.2. The forfeiture of the appellant's claim, Mirage 3, Registered under Certificate Number 18132, purportedly done on 5 June 2020, is hereby set aside.

3. For the avoidance of doubt, further to para 2 hereof, any act done by the first and second respondents further to the forfeiture aforesaid, whose effect is to alienate the area under Mirage 3, Registered under Certificate Number 18132, is declared invalid and consequently null and void.

4. The Respondents shall pay the costs of suit.”

From the grounds of appeal, and relief sought a quo, it is apparent that the appeal did not raise constitutional issues for determination by the court a quo.

Thereafter, on 21 October 2021, the court a quo handed down judgment ex tempore in favour of the first respondent.

Consequent to the court's decision, the applicants have filed the present application.

THIS APPLICATION

This application is for condoning the late noting of an application for leave to appeal by the applicants and an application for leave to appeal. Accordingly, the applicants seek the following relief:

“1. The application for condonation for late filing of the application for leave to appeal be and is hereby granted.

2. The application for leave to appeal against the judgment of the Supreme Court in SC107-21 be and is hereby granted.

3. The applicants shall file their notice of appeal within ten (10) days of the date of this order.

4. There shall be no order as to costs.”

The applicants aver, that, they make this application in terms of Rule 5 as read with Rule 32 of this Court's rules.

The applicants seek leave to appeal against the decision of the court a quo.

It is common cause that they failed to note the requisite application for leave to appeal to this Court within the fifteen days stipulated by Rule 32 of this Court's rules.

The first respondent opposed the application.

The second respondent did not oppose the grant of the relief sought and chose to abide by the decision of the Court. Accordingly, he did not attend the virtual hearing.

The first respondent has raised a preliminary point, to the effect that this application is improperly before this Court on the premise that it is filed in defiance of Rule 32(3)(b) of the Constitutional Court Rules in that the decision against which the appeal is brought has not been attached to the application.

The first respondent contends, that, the reasons for the court's judgment are not attached to the application, thus rendering the application fatally defective.

On this issue, counsel for the applicants and counsel for the first respondent made the following submissions:

Counsel for the applicants submitted, that, the applicants case was founded on Rule 5 of the Constitutional Court Rules. He further submitted, that, the Rule justified their course of action of filing a hybrid application for condonation and an application for leave to note an appeal.

The court queried the validity of the application in the absence of the impugned Supreme Court decision from the record of proceedings.

The court asked counsel for the applicants to address whether the application for condonation was not invalid, considering that the applicants had not attached written reasons of the judgment to the application as required by both Rule 35 and Rule 32 of the Constitutional Court Rules.

Counsel for the applicants posited, that, there was a gap in the current rules of the Court as they failed to consider circumstances wherein an applicant would have taken all the reasonable steps to obtain a judgment from the lower court.

In casu, he reasoned that the applicant had sought to obtain a judgment from the Supreme Court to no avail.

Counsel for the applicants intimated, that, the applicants were compelled to launch the application due to the judgment's far-reaching effects. He submitted, that, after the order was issued by the court a quo, the owners of previously forfeited mines were now putting pressure on the mining authorities to set aside the forfeitures in respect of the mines. The mines were now the subjects of disputes as the dispossessed owners sought to retrieve ownership based on the judgment.

The applicants criticized the ex-tempore ruling for imposing an undue burden on them with respect to the forfeiture of mining claims.

Counsel for the applicants was adamant that the application before the Court was valid.

He contended that the applicants had complied with all the requirements necessary despite the lack of assistance from the Supreme Court.

To this end, he submitted that the primary consideration of the interests of justice ought to guide the Court's approach in disposing of the matter regardless of the absence of the written judgment.

Accordingly, he argued that the Court should postpone the matter to enable the applicants to obtain the decision from the Supreme Court.

Per contra, counsel for the first respondent submitted, that, the tenor of Rules 32 and 35 of the Constitutional Court Rules compelled the applicant to furnish the Court with reasons for the order. To buttress his point, he cited the authority of Rushesha v Dera CC24-17.

He insisted that there was no valid application on record and that the Court could not postpone a nullity as was apparent in the present case.

Counsel for the first respondent stated, that, the dicta in Tamanikwa v Zimdef SC73-17 were authority for the principle, that, a court of superior record could not amend nullities. He reasoned that what was not suitable for the Supreme Court to countenance in Tamanikwa v Zimdef SC73-17 could similarly not survive scrutiny in the Constitutional Court.

In addition, counsel for the first respondent submitted, that, Practice Direction 3/2013 militated against the Court's ability to grant the postponement order sought by the applicants. He posited, that, according to paragraph 10 of the Practice Direction, a matter that has been postponed sine die would be deemed abandoned if not set down within three months from the aforesaid date.

Therefore, counsel for the respondent contended, that, a postponement did not aid the applicants case as there was no guarantee that they would obtain the reasons for judgment within three months.

He, therefore, urged the Court to strike the matter off the roll.

On the question of costs, the first respondent sought imposition of costs against the applicants due to their alleged perverse conduct in petitioning the court with full knowledge that their suit did not satisfy the essential elements for condonation or leave to appeal.

In response, counsel for the applicants vehemently opposed the disposal of the matter in the manner prayed for.

He contended that he did not have instructions to make any concessions. However, he conceded that there was no request to condone the absence of the judgment in the applicant's founding affidavit.

Counsel for the applicants concluded his submissions by maintaining that there was a valid application. As such, it could not be regarded as a nullity by the Court. He submitted, that, postponing the matter with directions proffered to the Supreme Court would aid the interests of justice.

WHETHER THE APPLICATION IS PROPERLY BEFORE THE COURT

Before this Court proceeds to determine the merits of the application, an important and crucial issue has exercised the Court's mind, which may be dispositive of this matter.

This issue has arisen due to the applicants reliance on Rule 5 of the Constitutional Court Rules as the enabling law for an approach to the Court to obtain an indulgence to condone their failure to bring the application for leave within the stipulated period.

The issue goes to the validity of the application itself and whether or not it is properly before the Court.

The requirements for an order of condonation are well settled.

The leading authority in Zimbabwe is the case of Bishi v Secretary for Education 1989 (2) ZLR 240 (H), where CHIDYAUSIKU J…, said:

“Rule 259 provides that the court may extend the time for bringing an application for review if good cause is shown. The first issue that falls for decision is, therefore, whether good cause has been shown to justify the court in extending the time or condone the delay in bringing this application. The principles that guide the court in an application for condonation were set out in the case of United Plant Hire (Pty) Ltd v Hills & Ors 1976 (1) SA 717 (A). In that case, Holmes JA had this to say at p720F-G:

'It is well settled, that, in considering applications for condonation, the Court has a discretion, to be exercised judicially upon a consideration of all of the facts; and that, in essence, it is a question of fairness to both sides. In this enquiry, relevant considerations may include the degree of non-compliance with the Rules, the explanation therefor, the prospects of success on appeal, the importance of the case, the respondent's interest in the finality of his judgment, the convenience of the Court, and the avoidance of unnecessary delay in the administration of justice.

The list is not exhaustive.

These factors are not individually decisive but are inter-related and must be weighed one against the other; thus, a slight delay and a good explanation may help to compensate for prospects of success which are not strong.'

In support of the above proposition, the learned judge of appeal cited several authorities.

Holmes JA's approach has been approved and followed in a number of subsequent cases. Among these cases are Hermannsburg Mission & Anor v Sugar Industry Central Board & Anor 1981 (4) SA 278 (N) and Vereniging van Bo-Grondse Mynamptenare van Suid-Afrika v President of the Industrial Court & Ors 1983 (1) SA 1143 (T).

These authorities establish, that, the following are the factors to be taken into account in considering whether good cause has been shown:

(a) The degree of non-compliance with the rules;

(b) The explanation therefor;

(c) The prospects of success on the merits;

(d) The importance of the case;

(e) The convenience of the court;

(f) The avoidance of unnecessary delay in the administration of justice.”

The applicants have brought this application in terms of Rule 5 of the rules of this Court.

The first respondent has submitted, that, the applicants must be non-suited for bringing their application under the wrong Rule.

Given the litigants divergent views, a comparative analysis of the competing Rules becomes inevitable.

Rule 5(1) of the Constitutional Court Rules, upon which the application is premised, provides for departures from rules and directions as to procedure. It states that:

“(1) The Court or a Judge may, in relation to any particular case before it or him or her, as the case may be -

(a) Direct, authorise, or condone a departure from any provision of these rules, including an extension of any period specified therein, where it or he or she, as the case may be, is satisfied that the departure is required in the interest of justice;

(b) Give such directions as to procedure in respect of any matter not expressly provided for in the rules as appear to it, or him, or her, as the case may be, to be just and expedient.”

In their founding affidavit, the applicants, in no uncertain terms, express that the first component of the application, in respect of condonation, is made pursuant to Rule 5 of this Court's rules.

The application is premised on Rule 5 of the Constitutional Court Rules.

In so doing, the applicants are requesting the Court to accept that the application may be granted primarily on the applicants failure to comply with the rules and that such failure must be pardoned as of right.

A party cannot base any application before this Court on Rule 5 of the Constitutional Court Rules as it does not provide for a party to institute proceedings. It is a rule available to the Court where litigants have failed to comply with the rules of court but the Court considers it is in the interests of justice to condone the departure.

The applicants cannot predicate an application for condonation.

Rule 5 of the Constitutional Court Rules is a tool in the hands of the Court. Thus, it is meant for instances where a party has instituted proceedings but fails to comply with any provision of the rules. In that instance, the Court may then direct, authorise, or condone the departure from the rules in the interests of justice.

The Rule under which an application for condonation is provided is Rule 35 of the Constitutional Court Rules, which is the law upon which the applicants should have premised this application.

To put the matter beyond doubt, that Rule 35 and not Rule 5 of the Constitutional Court Rules is the applicable law for this application, it is only proper that I set out the pertinent provisions thereof. It reads as follows in relevant parts:

“35. Application for condonation and extension of time within which to appeal

(1) An application for condonation for the late noting of an appeal or for an extension of time within which to appeal shall be by chamber application and shall be signed by the applicant or his or her legal practitioner and shall be accompanied by a copy of the judgment against which it is sought to appeal.

(2) An application for condonation shall have attached to it —

(a) A draft notice of appeal in accordance with rule 33;

(b) An affidavit setting out the facts upon which the applicant intends to rely.

(3) An application for an extension of time within which to appeal shall —

(a) Have attached to it a notice of appeal in accordance with rule 33(1) and (2); and

(b) An affidavit setting out the reasons why the appeal was not entered in time or leave to appeal was not applied for in time and any relevant facts; and

(c) Where it relates to a matter in which leave to appeal is necessary, comply with the requirements of subrule (2).

(4) (not relevant)

(5) (not relevant)

(6) (not relevant)

(7) A Judge may make such order on the application as he or she thinks fit and shall, if an extension of time is granted, also deal with any question of leave to appeal which may be involved.”

The above Rule sets out the steps an applicant seeking condonation must undertake.

It further informs the applicant of the need to file an affidavit that explains the delay in applying. It makes provision for the necessary documents to be annexed to the application. A draft notice of appeal and the decision appealed against are required to be part of the record.

Its provisions accord with the factors to be considered by a court seized with an application for condonation.

The applicants did not premise their application for condonation on the above-stated Rule, and, from the interchange with counsel, it is apparent that its import and significance were lost on them.

It is unclear why the applicants would institute their application for condonation premised on Rule 5 when Rule 35 of the Constitutional Court Rules is available and is the correct rule for bringing such an application.

On the other hand, a perusal of Rule 5 shows that it is devoid of the procedural requirements set out in Rule 35. Instead, Rule 5 provides for the exercise of discretion on the part of the Court to condone a departure or failure by a litigant to adhere to the procedure.

It is not a Rule allowing the bringing of an application for condonation.

An applicant may refer to the Rule as a basis for the exercise of the Court's discretion in considering the application for condonation.

Basing their application on an incorrect Rule renders their application fatally defective.

The rules of this Court expressly dictate the procedure to be followed in applications of this nature.

The importance of citing the Rule on which an application is based was adequately articulated in Bushu v Grain Marketing Board HH326-17, wherein the court noted that:

“However, in practice, any astute legal practitioner making an application in terms of a statutory provision, including a rule of court, is expected to indicate the rule or provision concerned. The need to cite the relevant provision of the law under which the application is made, where applicable, of course, cannot be over-emphasized. The citation of the correct and relevant provision attunes the court to its jurisdiction and the judge or court as the case may be immediately opens up to the provision, and, if need be, researches on the provision if it is not one that immediately comes to mind.”

It must be emphasised, that, litigants must proceed in terms of the relevant Rule as that is what informs the respondent, and the court, as to the nature of the application and the relief sought. It is the Rule that delineates the processes to be followed by the parties and the time frames demanded for each process.

While Rule 35 is replete with what each party must comply with, including the Registrar, Rule 5 does not have any of those stipulations.

It therefore follows that Rule 5 applies to a matter that is already before the Court.

In hearing that matter, the Court may give directions, for example on further time within which parties may file papers, or condone a departure, for example, failure to file heads of argument within the period stipulated in the rules.

Therefore, the latter Rule cannot, under the circumstances, be the correct rule for an application for condonation for the late filing of an application for leave to appeal and the application for leave itself.

The court's rules regulate access to this or any other court. The need to pay regard to the rules when instituting proceedings was emphasised in Mupungu v Minister of Justice, Legal and Parliamentary Affairs CC07-21, where this court stated that:

“One cannot institute an action or application in the High Court, or any other court, without due observance of and compliance with the Rules of that court. The Rules inform a litigant of what is required of him to access the court concerned. If he fails to observe or comply with those Rules, he will inevitably be non-suited. To conclude this aspect of the matter, I am satisfied that the proceedings a quo were fatally defective and constitute a nullity for failure to comply with Rule 18 of the High Court Rules….,.”

When the draft order annexed to the application is read against the two rules, it becomes evident that the relief sought is more in line with Rule 35 than Rule 5 of the Constitutional Court Rules.

A closer examination of the two rules reveals, that, the relief sought by the applicants is provided under Rule 35(1) and sub-rule (3)(a), (b), and (c).

Therefore, Rule 5 of the Constitutional Court Rules, under which the applicants purport to approach the court for relief, is not the applicable law as it does not make provision for the filing of an application and does not provide for the relief sought.

It is not a Rule to premise an application upon.

Based on this Rule, the applicants cannot be said to have filed a proper application for condonation for the late filing of an application for leave.

The applicants are, therefore, non-suited before this Court.

Since this point is dispositive of the matter, it is unnecessary to consider the other preliminary point. Consequently, this application is a nullity as it stands on nothing.

DISPOSITION

It would be futile for this Court to proceed to determine the preliminary point raised by the first respondent. Before this Court can consider the contents of this application, it must be satisfied that a valid application is before it.

This application is not; it must be therefore struck off the roll.

The first respondent sought costs on the legal practitioner and client scale in its papers. However, it failed to motivate why the applicants should be mulcted by an award of costs on a higher scale.

It is not suggested, that, the applicants are guilty of vexatious conduct or that the application is frivolous.

I see no reason to deviate from the general approach in constitutional matters, that is, that no party should be penalised with an order of costs, save in exceptional circumstances. No such special circumstances as would justify an order of costs, even on the ordinary scale, are evident in this matter.

Accordingly, the following order is made:

The application is struck off the roll with no order as to costs.

CC07-15 : DANIS KONSON vs THE STATE
Ruled By: CHIDYAUSIKU CJ, MALABA DCJ, GWAUNZA JCC, GARWE JCC, GOWORA JCC, HLATSHWAYO JCC, PATEL JCC, GUVAVA JCC and MAVANGIRA AJCC

On 3 February 2014, under Case No HB158/13, the High Court, sitting at Bulawayo, convicted the applicant of murder with actual intent to kill. After finding that there were no extenuating circumstances surrounding the commission of the offence, the court passed a sentence of death.

The background facts surrounding the applicant's conviction and sentence were the following:

The deceased and the applicant had a love relationship which had, at the time of the deceased's demise, lasted a number of years. As a measure of his love, the applicant set the deceased up in business, in the form of a shop in the rural area in which the deceased resided. The deceased was allegedly not happy with the treatment that the applicant was subjecting her to and terminated their relationship. She subsequently entered into a new relationship with another man.

The applicant was not happy with this development.

After unsuccessful attempts to resuscitate the relationship, he proceeded to her residence, accompanied by a friend and a police detail. Thereafter, the parties proceeded to the business premises where the applicant shot the deceased and the policeman after conducting enquiries on the status of the business venture. The deceased died at the scene leading to the arrest of the applicant, and, thereafter, his conviction.

An automatic appeal followed against the conviction and sentence by operation of law.

On 17 November 2014, in his appeal before the Supreme Court, the applicant alleged that the High Court had violated his right to a fair trial and applied that the matter be referred to this Court in terms of section 175(4) of the Constitution of Zimbabwe (“the Constitution”). The relevant subsection reads:

“(4) Powers of courts in constitutional matters

If a constitutional matter arises in any proceedings before a court, the person presiding over that court may, and, if so requested by any party to the proceedings, must refer the matter to the Constitutional Court unless he or she considers the request as merely frivolous or vexatious.”

The Supreme Court agreed that the request was neither frivolous nor vexatious and consequently made the following order:

“IT IS ORDERED THAT:

Two constitutional issues have arisen:

1. The appellant alleges that his right to a fair hearing, guaranteed by section 69(1) of the Constitution of Zimbabwe, was violated by the presiding Judge who descended into the arena.

2. The appellant was given a sentence which was not competent in terms of the law. In particular, he was sentenced at a time where Parliament had not enacted a law providing the circumstances in which a death sentence may be imposed in terms of section 48(2) of the Constitution of Zimbabwe.”

Before us, counsel for the applicant and the respondent are agreed, that, the application is properly before this Court.

I proceed now to consider each of the issues referred to this court for determination.

Whether the applicant's right to a fair hearing was violated

The object of a criminal trial is for the truth surrounding the commission of the offence to be established. The role of the judge is therefore an onerous one as his task is to see that justice is not only done, but that it is seen to be done.

In this exercise, he should conduct himself in such a manner that he is not viewed or perceived to have aligned himself with either the prosecution or the defence. He is not precluded from questioning the witnesses or the accused person, but, such questioning must not be framed in such a manner as to convey an impression that he is conducting a case on behalf of one of the parties. The judge must avoid questions that are clearly biased and show a pre-disposition on the part of the judge. The judge should neither lead nor cross-examine a witness.

The complaint by the applicant is that the trial court descended into the arena of conflict between himself and the State thereby violating his right to a fair trial as guaranteed by section 69(1) of the Constitution. The applicant further contends, that, the record of proceedings shows that the court was not impartial. It is argued further, that, the questioning of the applicant by the trial judge was such that, because of its frequency; length; timing; form; tone; content, it was apparent that the trial judge was hostile to the applicant.

The limits to which a judicial officer may question a witness or an accused person in a criminal trial were aptly set out by TROLLIP AJA in S v Rall 1982 (1) SA 828…, in the following terms:

“While it is difficult and undesirable to attempt to define precisely the limits within which such judicial questioning should be confined, it is possible, I think, to indicate some broad, well-known limitations, relevant here, that should generally be observed: see eg. S v Sigwala 1967 (4) SA 566 (A) at 568F-H.

1. According to the above quoted dictum of CURLEWIS JA, the judge must ensure that 'justice is done'. It is equally important, I think, that he should ensure that justice is seen to be done. After all, that is a fundamental principle of our law and public policy.

He should therefore so conduct the trial that his open-mindedness, his impartiality, and his fairness are manifest to all those who are concerned in the trial and its outcome, especially the accused: see, for example, S v Wood 1964 (3) SA 103 (O) at 105G; Rondalia Versekeringskorporasie Van SA Bpk v Lira 1971 (2) SA 586 (A) at 589G; Solomon and Anor NNO v De Waal 1972 (1) SA 575 (A) at 580H.

The judge should consequently refrain from questioning any witness or the accused in such a way, that, because of its frequency, length, timing, form, tone, contents or otherwise conveys or is likely to convey the opposite impression: cf Greenfield Manufacturers (Temba) (Pty) Ltd v Royton Electrical Engineering (Pty) Ltd 1976 (2) SA 565 (A) at 570E-F; Jones v National Coal Board (1957) 2 All ER 155 (CA) at 159F.

2. A judge should also refrain from indulging in questioning witnesses or the accused in such a way or to such an extent that it may preclude him from detachedly or objectively appreciating and adjudicating upon the issues being fought out before him by the litigants. As LORD GREENE MR observed in Yull v Yull (1945) 1 All ER 183 (CA) at 189B, if he does indulge in such questioning -

'He, so to speak, descends into the arena and is liable to have his vision clouded by the dust of the conflict. Unconsciously, he deprives himself of the advantage of calm and dispassionate observation.'

See, too, the Jones case (supra) at 159C-E: or, as expressed by WESSELS JA in Hamman v Moolman 1968 (4) SA 340 (A) at 344E, the Judge may thereby deny himself -

'The full advantage usually enjoyed by the trial judge, who, as the person holding the scale between the contending parties, is able to determine objectively and dispassionately, from his position of relative detachment, the way the balance tilts.'

The quality of his views on the issues in the case, including those relating to the demeanour or credibility of the witnesses or the accused or the relative probabilities, may, in consequence, be seriously impaired: see eg R v Roopsingh 1956 (4) SA 509 (A) at 514-5: and, if he is sitting with Assessors, that may well adversely influence their deliberations and opinions on those issues.

3. A judge should also refrain from questioning a witness or the accused in such a way that may intimidate or disconcert him or unduly influence the quality or nature of his replies and thus affect his demeanour or impair his credibility. As LORD GREENE MR further observed in Yull's case supra at 189B-C:

'It is further to be remarked, as everyone who has had experience of these matters knows, that the demeanour of a witness is apt to be very different when he is being questioned by the judge to what it is when he is being questioned by counsel, particularly when the judge's examination is, as it was in the present case, prolonged and covers practically the whole of the crucial matters which are in issue.'”

In this case, it was contended, on behalf of the applicant, that, the manner in which the learned judge in the trial conducted himself revealed hostility to the applicant.

In S v Mangezi (1) ZLR 272 (S), DUMBUTSHENA CJ commented as follows:

“It is not only when a judicial officer shows his bias that his leading or cross-examination of a witness may be condemned, it is also the fact of taking over the examination of the prosecution or defence witness that is not permissible.”

Further to the above, the applicant has contended that the intensity of questioning by the judge, whilst he was under cross-examination, was more extensive than that of the prosecutor. Whilst the prosecutor put a total of 144 questions to the applicant during his cross-examination, the questions from the judge, during the same cross examination, was a record 122. When the applicant's counsel sought to re-examine the applicant, the learned trial judge put to the applicant an additional 24 questions bringing the total number to 146.

However, it is not just the number of questions or their longevity that the applicant contests, it is also the content of the questions and the form that they took that is being complained of. Counsel for the applicant drew the attention of the court to the impugned exchanges between the court and the applicant. To illustrate the gravity of the complaint, I set out a few examples of the same.

The learned judge, after an answer to a question by the applicant, was heard to interject:

“No, no, no…, this does not make sense. What was happening to the money, you were making profits and that is why you were running the business, so what was happening to the money?”

Further on in the record, the learned judge, during the cross-examination of the applicant, also commented to an answer by the applicant in the following terms:

“And when she tells you that she was married and you did not believe her and you go there to find out if she is married, and you find the deceased coming out of the husband's house you say that is provocation? You wanted to go and find out whether she was married and you found out she was married and you still say it was provocation?”

As submitted by counsel for the applicant, the inescapable conclusion that emerges from the record is that the judge descended into the arena, and, as a consequence, he deprived himself of the detached impartiality required of a judicial officer. The fairness of the trial was clearly undermined. He had pre-judged the issues of the trial that was before him.

The remarks of HOLMES JA in S v Sigwala 1976 (4) SA 566 (AD) are apposite. At p568F-H, the learned jurist stated:

“The principle is clear. A judicial officer should ever bear in mind that he is holding a balance between the parties, and that fairness to both sides should be his guiding star, and that his impartiality must be seen to exist. There are occasions, particularly where a party is unrepresented, when the judicial officer will properly take some part in the examination of witnesses, but, in the main, and as far as is reasonably possible, he will usually tend to leave the dispute to the contestants, interrupting only when it is necessary to clarify some point in the interests of justice. Thereby, he is better able to form objective appraisals of the witnesses who appear before him, and he also avoids creating wrong impression in the minds of those present.”

Section 69(1) of the Constitution reads:

“Right to a Fair Hearing

(1) Every person accused of an offence has the right to a fair and public trial within a reasonable time before an independent and impartial court.”

One of the fundamental principles of criminal law is that a person charged with a criminal offence is presumed to be innocent until the prosecution proves that he committed the offence with which he is charged. Thus, the State has an onus to establish every element of the offence.

The rules of natural justice require that whoever takes a decision should be impartial, having no personal interest in the outcome of the case and that a decision should not be taken until the person affected by it has had an opportunity to state his case.

A judicial officer has an obligation to ensure that a trial is conducted in a manner that is fair to all parties before him. To that end, the judicial officer is required to leave the dispute to the parties before him as far as is reasonably possible, and should interrupt only when it is necessary to clarify some point in the interests of justice.

In view of the stance assumed by the learned trial judge, the defence proffered on behalf of the applicant was not properly evaluated thus further undermining the trial.

His right to a fair hearing, as guaranteed under section 69(1) of the Constitution, was clearly violated.

In my view, the finding that the trial was not fair determines the application, and it becomes unnecessary to resolve the question relating to the constitutional validity of the sentence of death imposed upon the applicant.

One of the two issues referred to this court by the Supreme Court has been decided in favour of the applicant.

Both counsel are agreed, that, it would be in the interests of justice if the proceedings in the High Court were to be set aside as being inconsistent with section 69(1) the Constitution. Under such circumstances no benefit would ensue from a determination on the question of the constitutional validity of the sentence when the trial proceedings have been set aside.

It is further agreed between counsel that it would be in the interests of justice if the matter were to be remitted for trial de novo before a different judge.

Accordingly, it is declared that:

The applicant's right to a fair hearing, in accordance with section 69(1) of the Constitution, has been violated by the proceedings in Case No. HCB158/13.

Accordingly, the following order will issue:

IT IS ORDERED THAT:

1. The proceedings conducted under Case No. HCB158/13 be and are hereby set aside.

2. The matter be and is hereby remitted to the High Court in Bulawayo for trial de novo before a different judicial officer.

CC08-18 : JOYCE MUJURU vs PRESIDENT OF ZIMBABWE and PARLIAMENT OF ZIMBABWE and MINISTER OF FINANCE AND ECONOMIC DEVELOPMENT and RESERVE BANK OF ZIMBABWE and GOVERNOR OF THE RESERVE BANK and ATTORNEY GENERAL
Ruled By: CHIDYAUSIKU CJ, MALABA DCJ, GWAUNZA JCC, GARWE JCC, HLATSHWAYO JCC, PATEL JCC, GUVAVA JCC, MAVANGIRA JCC and UCHENA JCC

After hearing argument on a point in limine raised by the first and third respondents (President of Zimbabwe and Minister of Finance and Economic Development) this Court issued the following order:“1. The preliminary point raised by the respondents is upheld.2. The matter is struck off the roll with costs.3. The ...

After hearing argument on a point in limine raised by the first and third respondents (President of Zimbabwe and Minister of Finance and Economic Development) this Court issued the following order:

“1. The preliminary point raised by the respondents is upheld.

2. The matter is struck off the roll with costs.

3. The reasons for this order are to follow in due course.”

What follow are the reasons for that order.

FACTUAL BACKGROUND

The Presidential Powers (Temporary Measures) Act [Chapter 10:20] (“the Presidential Powers Act”) provides as follows:

“2 Making of Urgent Regulations

(1) When it appears to the President that -

(a) A situation has arisen or is likely to arise which needs to be dealt with urgently in the interests of defence, public safety, public order, public morality, public health, the economic interests of Zimbabwe or the general public interest; and

(b) The situation cannot adequately be dealt with in terms of any other law; and

(c) Because of the urgency, it is inexpedient to await the passage through Parliament of an Act dealing with the situation; then, subject to the Constitution and this Act, the President may make such regulations as he considers will deal with the situation.

(2) Regulations made in terms of subsection (1) may provide for any matter or thing for which Parliament can make provision in an Act: Provided that such regulations shall not provide for any of the following matters or things -

(a) Authorizing the withdrawal or issue of moneys from the Consolidated Revenue Fund or prescribing the manner in which withdrawals may be made therefrom; or

(b) Condoning unauthorized expenditure from the Consolidated Revenue Fund; or

(c) Providing for any other matter or thing which the Constitution requires to be provided for by, rather than in terms of, an Act; or

(d) Amending, adding to or repealing any of the provisions of the Constitution.

3….,. (not relevant)

4. Regulations to be laid before Parliament

(1) Copies of all regulations made in terms of section two shall be laid before Parliament no later than the eighth day on which Parliament sits next after the regulations were made.

(2) If Parliament resolves that any regulations that have been laid before it, in terms of subsection (1), should be amended or repealed, the President shall forthwith amend or repeal the regulations accordingly.

(3) Where any regulations have been amended or repealed in terms of subsection (2) in accordance with a resolution of Parliament, the President shall not, within a period of six months thereafter, make any further regulations in terms of section two that are identical in substance to the regulations before they were so amended or repealed, as the case may be.

5. Effect of Regulations

Regulations made in terms of section two shall, to the extent of any inconsistency, prevail over any other law to the contrary, apart from regulations that have been made and are in force in terms of the Emergency Powers Act [Chapter 11:04].”

Pursuant to the provisions of section 2 of the Presidential Powers (Temporary Measures) Act, the President of the Republic of Zimbabwe, in a supplement to the Zimbabwe Government Gazette dated 31 October 2016, issued the Presidential Powers (Temporary Measures) (Amendment of Reserve Bank of Zimbabwe Act and Issue of Bond Notes) Regulations, 2016 (“the Bond Notes Regulations”).

Sections 2 and 3 of the Regulations, contained in Statutory Instrument 133/16, S.I.133 of 2016 provide:

“2. (1) The Reserve Bank of Zimbabwe Act [Chapter 22:15] (No.5 of 1999) (“the principal Act”) is amended by the insertion in Part VI ('Banknotes and Coinage') of the following section after section 44A -

“44B Legal Tender of Bond Notes and Coins

(1) The Minister may, by notice in a statutory instrument, prescribe that a tender of payment of bond notes and coins issued by the Bank that are exchangeable at par value with any specified currency other than Zimbabwean currency prescribed as legal tender for the purposes of section 44A shall be legal tender in all transactions in Zimbabwe to the same extent as that prescribed currency.

(2) Section 42 shall apply to bond notes prescribed under subsection (2) as they apply to banknotes.”

APPLICANT'S CASE BEFORE THIS COURT

Following the publication of the above Regulations, the applicant filed a court application which she said was made in terms of section 167(2)(d) of the Constitution of Zimbabwe as read with Rules 15 and 27 of the Constitutional Court Rules 2016. She sought an order in the following terms:

“1. That, the first respondent be and is hereby declared to have failed to fulfil his constitutional obligation to obey section 134(a) of the Constitution of Zimbabwe 2013 by exercising Parliament's primary law-making powers through his making of Statutory Instrument 133 of 2016.

2. As a consequence arising from 1, that it be and is hereby declared that the Presidential Powers (Temporary Measures) (Amendment of Reserve Bank of Zimbabwe Act and Issue of Bond Notes) Regulations 2016 (SI133 of 2016) be and are hereby declared null and void and of no force or effect, having arisen from 1st Respondent failure to fulfil his constitutional obligation within the contemplation of section 167(2) as read with section 2 of the Constitution of Zimbabwe 2013.

3. That the 2nd Respondent be and is hereby declared to have failed to fulfil its constitutional obligation to protect section 134(a) of the Constitution of Zimbabwe 2013 by allowing section 2(2) of the Presidential Powers (Temporary Measures) Act (Chapter 10:20) to remain on the statute books long after the enactment of the Constitution of Zimbabwe 2013.

4. As a consequence arising from 2, that, section 2(2) of the Presidential Powers (Temporary Measures) Act (Chapter 10:20), to the extent to which it permits the making of a statutory instrument that amends an Act of Parliament be and is hereby declared null and void and of no force or effect, having remained on the statute books from 2nd Respondent failure to fulfil its constitutional obligation within the contemplation of section 167(2) as read with section 2 of the Constitution of Zimbabwe 2013 (sic).

5. That, the proposed introduction of bond notes by the Respondents be and is hereby declared unconstitutional and therefore null and void for arising from the failures by the 1st and 2nd Respondents to fulfil their constitutional obligations as aforesaid (sic).

6. That, the Respondents (if they oppose this application) jointly and severally pay the costs of this application the one paying the others to be absolved.”

In her founding affidavit, the applicant avers, that, in terms of section 90 of the Constitution, the first respondent, as President, has a constitutional obligation to uphold, defend, obey and respect the Constitution as the law of the nation.

Paragraph 10 of Schedule 6 to the Constitution provides, that, all existing laws continue in force but must be construed in conformity with the Constitution.

The law therefore imposes a constitutional obligation on the President not to invoke section 2(2) of the Presidential Powers Act which is clearly inconsistent with the Constitution.

He has a constitutional obligation not to resort to section 2(2) of the Presidential Powers Act to the extent that it purports to empower him to amend an existing Act of Parliament. That section fell away the moment section 134(a) of the Constitution became law.

Section 134 of the Constitution provides that Parliament's primary law making function cannot be delegated.

This means a Statutory Instrument cannot purport to amend an Act of Parliament.

The President's constitutional obligation is to ensure that he does not make statutory instruments that amend Acts of Parliament. Instead, he is obligated to initiate legislation to repeal such legislation.

In respect of Parliament, the applicant avers, that, the Bond Notes Regulations have usurped Parliament's primary law making power.

Parliament must not allow the President, or any member of the executive, to usurp legislative powers.

Parliament has therefore failed to fulfil its constitutional obligation in two respects:

(i) First, it ought not to have allowed section 2(2) of the Presidential Powers (Temporary Measures) Act to remain on the statute books for more than three years after the promulgation of the 2013 Constitution. Instead, it should have repealed that section.

(ii) Secondly, it ought to have taken steps, within 24 hours of the gazetting of the Bond Notes Regulations, to direct the President to repeal them.

The applicant made it clear that this was not an application made in terms of section 85(1) of the Constitution, but, rather, one under section 167(2) of the Constitution.

She submitted that it was not necessary, therefore, to allege a breach of any of her fundamental rights.

Having said so, however, and in order to demonstrate how the failure by the President and Parliament, in upholding their constitutional obligations, is affecting her, she listed the rights violated as:

(a) Equal protection and benefit of the law – section 56(1) of the Constitution;

(b) Private property rights – section 71(2) of the Constitution; and

(c) Choosing and carrying on any profession, trade or occupation – section 64 of the Constitution.

OPPOSITION BY FIRST AND THIRD RESPONDENTS

The third respondent (the Minister of Finance and Economic Development) filed opposing papers on behalf of both respondents (the President of Zimbabwe and Minister of Finance and Economic Development). He took a point in limine.

It was this.

The Presidential Powers (Temporary Measures) Act, under which the President acted, is still part of our law and the President is duty bound, in the exercise of his duties, to make use of it.

The opinion by the applicant that the Presidential Powers (Temporary Measures) Act is constitutionally invalid cannot be used to claim that the President has failed to discharge a constitutional obligation.

In fact, by using an existing law, the President is discharging his constitutional obligation, and, in these circumstances, one cannot approach the court in terms of section 167(2) of the Constitution.

If the complaint were on the constitutionality of the Presidential Powers (Temporary Measures) Act, then, the applicant could only have approached this Court in terms of section 85(1) of the Constitution and allege a breach of one or other of her rights.

The third respondent further stated, that, the validity of the Bond Note Regulations is currently before Parliament. That institution has the right to amend or repeal the said Regulations.

Further, in terms of section 9 of the Fifth Schedule to the Constitution, Parliament may also apply to this Court for a declaration of invalidity in respect of the Regulations.

Accordingly, the matter is not ripe for constitutional determination as there exists a process within the law for the determination of the fate of the statutory instrument.

Lastly, he submitted, that, since the applicant is not applying for redress of any breach of her rights in terms of section 85(1) of the Constitution, she does not have the right to directly make an application to this Court but should have made an application to the High Court which could have adequately dealt with the matter.

OPPOSITION BY THE SECOND RESPONDENT

In its opposing papers, Parliament, represented by its Speaker, has submitted that section 117(1)(c), read together with section 134(a) of the Constitution, allows Parliament to confer legislative powers on another body or authority.

The Speaker has denied that Parliament has failed to fulfil its constitutional mandate since the statutory instrument in question is undergoing scrutiny by its Legal Committee.

FOURTH AND FIFTH RESPONDENTS OPPOSITION

In his opposing affidavit, the Governor of the Reserve Bank prays for the dismissal of the application with costs on the higher scale. He has stated as follows:

The Bond Note Regulations were meant to fortify and underpin the existing legal framework for the issuance of bond notes. That instrument was promulgated by the President pursuant to the lawful authority given to him by the Presidential Powers (Temporary Measures) Act, which Act remains part of our law as it has not been repealed by the Constitution.

In any event, paragraph 10 of the Sixth Schedule to the Constitution provides that all existing laws remain in force but must be construed in conformity with the Constitution.

He denies that the President has exercised primary law-making power as envisaged in section 134(a) of the Constitution.

ISSUES FOR DETERMINATION

On the basis of the papers before this Court, the first issue that arises for determination is whether the applicant has properly approached this Court in terms of section 167(2)(d) of the Constitution.

Should that question be answered in the positive, the issue that will follow is whether the President and Parliament have failed to fulfil their constitutional obligations.

I deal first with the preliminary point taken by the first and third respondents.

WHETHER THE APPLICATION IS PROPERLY BEFORE THE COURT

There is a presumption of validity in respect of all subsisting laws. Until such laws are set aside, they have legal effect and must therefore be complied with.

A court cannot, generally speaking, make an order declaring an act illegal, if, at the time the act was performed, it was done in terms of a valid law.

Once an act is done in terms of a valid law, that act is legal.

The only exception to this position is where the legislature, in clear and unambiguous language, or by necessary implication, retrospectively prohibits the doing of something that was legal at the time it was performed, that is to say, where the law expressly states that something that was not prohibited before the promulgation of the retrospective law is illegal – Greatermans Stores (1979) (Pvt) Ltd t/a Thomas Meikles Stores and Anor v The Minister of Public Service, Labour and Social Welfare & Anor CC02-18…,.

This Court has, on several occasions, held that there is a presumption of constitutionality of a law that has not been challenged for alleged unconstitutionality.

The court has further held, that, not only does an unchallenged law compel full obedience but that even a law that is under challenge commands the same level of obedience unless declared invalid.

In this regard, in In Re: Prosecutor General of Zimbabwe on his Constitutional Independence and Protection from Direction and Control CC13-17, this court remarked…,:

“…, it is important to acknowledge the well-known canons that the Constitution is the supreme law and that the rule of law is a founding principle of our nation (section 3(b) of the Constitution).

The quintessence of the rule of law is this, and simply this, that, where there is a law, it must be complied with…,.”

The court further cited with approval the Supreme Court decision in Econet Wireless (Pvt) Ltd v Minister of Public Service, Labour and Social Welfare & Ors 2016 (1) ZLR 268 (S) where…, the court remarked thus:

“It is a basic principle of our law, which needs no authority, that, all subsisting laws are lawful and binding until such time as they have been lawfully abrogated. If, however, any authority is required for this proposition, one need not look further than Black on the Construction and Interpretation of the Laws (1911) page 10 para 41, where the learned author says:

'Every act of the legislature is presumed to be valid and constitutional until the contrary is shown. All doubts are solved in favour of the validity of the Act. If it is fairly and reasonably open to more than one construction, that construction will be adopted which will reconcile the statute with the Constitution and avoid the consequence of unconstitutionality.'

What it means is that all questioned laws and administrative acts enjoy a presumption of validity until declared otherwise by a competent court.

Until the declaration of nullity, they remain lawful and binding, bidding obedience of all subjects of the law.

The doctrine of obedience of the law until its lawful invalidation was graphically put across by Lord Radcliffe in Smith v East Elloe Rural District Council [1956] AC 736 at 769 when he observed that:

'An Order, even if not made in good faith, is still an act capable of legal consequences. It bears no brand of illegality on its forehead. Unless the necessary procedures are taken at law to establish the cause of invalidity and to get it quashed or otherwise upset, it will remain as effective for its ostensible purpose as the most impeccable of orders.'”

The Presidential Powers Act is still part of our law, no court having declared it unconstitutional.

The opinion expressed by the applicant, that it is no longer valid law following the coming into force of the new Constitution, cannot be correct.

The Constitution itself has not said so.

To the contrary, the Constitution provides, in paragraph 10 of Part 4 of the Sixth Schedule, that, all existing laws remain valid, but are to be construed in conformity with the Constitution.

Implicit also in the opinion of the applicant is the suggestion that it is the constitutional obligation of the President to analyse all the laws under which he purports to act in order to ascertain their compliance with the Constitution.

Surely, that cannot be the correct legal position.

In the absence of a specific provision in the Constitution invalidating a law previously enacted, it cannot be the duty of a sitting President to embark upon such an inquiry. That is a role for the courts.

Section 134 of the Constitution does not impose such an obligation on the President.

What is sought before this Court is a declaration, in terms of section 167(3) of the Constitution, that the President and Parliament have both failed to fulfil obligations imposed on them by the Constitution.

The relief sought is predicated upon conduct of the President acting in terms of an Act of Parliament which allows him to make Regulations to deal with urgent situations and which Regulations have supremacy over any other law to the contrary.

It is clear that the applicant should have sought, but did not do so, a declaration that the Presidential Powers Act is unconstitutional.

However, having come under section 167(2)(d) of the Constitution, that is not the issue before the court.

Further, having proceeded in terms of section 167(2)(d), the question whether section 2 of the Presidential Powers Act amounts to unlawful delegation of Parliament's primary law-making function is not an issue before the court.

I agree with learned counsel for the first and third respondents, that, since, as it appears, the gravamen of the complaint by the applicant is on the constitutional validity of section 2 of the Presidential Powers Act, the applicant should have, in these circumstances, approached this Court in terms of section 85(1)(a) of the Constitution, alleging a violation of one or more of her constitutional rights.

In Berry (Nee Ncube) & Anor v Chief Immigration Officer & Anor 2016 (1) ZLR 38 (CC), the first applicant in that case approached the court, both in her own interest and that of her husband, seeking an order to the effect that her fundamental right to freedom of movement and residence, under section 66 of the Constitution, had been violated because the respondents, acting in terms of section 17 of the Immigration Act [Chapter 4:02] had refused to grant her husband entry into and residence in Zimbabwe.

It was common cause that the applicants had not sought to challenge the constitutional validity of section 17 of the Immigration Act.

At page 45G-H, this Court (per GWAUNZA JCC…,.) remarked:

“The applicants, therefore, take issue with the mere fact of the respondents doing their job, in other words, the respondents actions in properly applying an unchallenged law that falls under their direct responsibility.”

And, at p46C-D the court concluded:

“…, one cannot impugn, on a constitutional basis 'conduct' that constitutes a proper, lawful application of the law, without challenging the constitutional validity of the same law, or actions premised on a misinterpretation of it.”

The conclusion is therefore inescapable, that, the application is not properly before this Court and that it stands to be struck off the roll.

CC10-23 : LAW SOCIETY OF ZIMBABWE vs PARLIAMENT OF ZIMBABWE and PRESIDENT OF THE SENATE and SPEAKER OF THE NATIONAL ASSEMBLY and PRESIDENT OF ZIMBABWE and MINISTER OF JUSTICE, LEGAL AND PARLIAMENTARY AFFAIRS and ATTORNEY-GENERAL N.O.
Ruled By: GARWE JCC, MAKARAU JCC, GOWORA JCC, HLATSHWAYO JCC, PATEL JCC, UCHENA AJCC and MAKONI AJCC

The Court may not condone the lack of locus standi, even if the parties agree between them to litigate with one another. If locus standi is absent, the proceedings are invalid.

CC14-20 : HILTON CHIRONGA and RASHID MAHIYA vs MINISTER OF JUSTICE, LEGAL & PARLIAMENTARY AFFAIRS and MINISTER OF HOME AFFAIRS and MINISTER OF DEFENCE and GOVERNMENT OF ZIMBABWE
Ruled By: MALABA DCJ, ZIYAMBI JCC, GWAUNZA JCC, GARWE JCC, GOWORA JCC, HLATHSWAYO JCC, PATEL JCC, BHUNU JCC and UCHENA JCC

One of the crucial elements of the new constitutional dispension ushered in by the 2013 Constitution is to make a decisive break from turning a blind eye to constitutional obligations. To achieve this goal, the drafters of the Zimbabwean Constitution Amendment (No.20) Act 2013 (“the Constitution”) adopted the rule of law and supremacy of the Constitution as some of the core founding values and principles of our constitutional democracy.

For this reason, public office bearers ignore their constitutional obligations at their own peril. Left unchecked, those clothed with State authority, or public power, may quite often find the temptation to abuse such powers irresistible, as Lord Acton famously remarked:

“Power tends to corrupt, and absolute power corrupts absolutely!”

John Emerich Dalberg-Acton, 1st Baron Acton, coined the proverbial saying in 1857 using similar ideas expressed by several of his contemporaries. The fuller expression reads:

“Power tends to corrupt and absolute power corrupts absolutely. Great men are almost always bad men, even when they exercise influence and not authority; still more when you super-add the tendency of the certainty of corruption by authority.”

Mechanisms to oversee how public power and State authority is exercised by those so entrusted must be tightened and strengthened. More importantly, if such mechanisms are by command of the supreme law of the land, the Constitution, they must be put in place within a reasonable time to actualise the Constitution as a living document.

To this end, the State, its organs, and functionaries cannot, without consequence, be allowed to adopt a lackadaisical attitude, at the expense of the public interest, in bringing into operation institutions and mechanisms commanded by the supreme law: see the case of Mashongwa v Passenger Rail Agency of South Africa 2016 (3) SA 528 (CC)…,.

However, this case also illustrates the need, on the part of the litigants, to move away from old fashioned Private Law habits when it comes to Constitutional Law litigation. While constitutional litigation may entail the vindication of a private right, it differs from Private Law litigation in that over and above that it seeks to entrench legality and the deepening of the constitutional order for the benefit of the broader public.

This is why it has been said that:

“Where a matter concerns the constitutionality of a law…, the need for certainty may require the court to decide the matter irrespective of whether or not the party advancing the challenge had standing:” MAX du PLESSIS et al 'Constitutional Litigation' Juta, 2013 quoting the South African cases of Lawyers for Human Rights v Minister of Home Affairs 2004 (4) SA 125 (CC)…, and South African Liquor Traders Association v Chairperson, Gauteng Liquor Board 2006 (8) BCLR 901 (CC)…,.

This application seeks to enforce the enactment of the law envisioned in section 210 of the Constitution to provide for “an effective and independent mechanism for receiving and investigating complaints from members of the public about misconduct on the part of members of the security services, and for remedying any harm caused by such misconduct.”

It also seeks a declarator that the respondents have breached the Constitution by failing to enact such a law timeously after the coming into operation of the new Constitution and a mandamus for the respondents to gazette the Bill envisioned in section 210 of the Constitution thereof within forty-five days.

At the time of hearing of the application, a period of two years and four, five months had lapsed from the time of coming into operation of the rest of the Constitution, on 22 August 2013, when the President-elect, under the Constitution, assumed office. That delay, of less than two and a half years, might not have been sufficient to satisfy a finding of violation of the Constitution and the application might have failed on that score, with a period of, say, three being deemed to be the sufficient one.

However, post-hearing, intimations or overtures that the matter might be settled by consent of the parties were made necessitating the holding of three Court-presided meetings of the parties over time on the basis that both sides were agreed that the envisaged legislation had to be enacted; and, indeed, both sides agreed that the application was essentially not opposed, but differed slightly on the appropriate timelines for the enactment of the law.

Herein lies the nub of this matter.

Had the constitutional legality principle been put above all else, the application could have been granted immediately with immense public benefit. However, the Private Law litigation habit of “winner takes all” of wanting the other side to be declared a violator of the Constitution stood in the way as did the attitude on the other side of not wanting to make any move unless so ordered.

Had the Court appreciated, then, how deeply entrenched these arcane positions were, relics of Private Law litigation habits, a different approach could have been adopted of immediately issuing the order, with reasons to follow.

It is regretted that this approach was not followed.

FACTUAL BACKGROUND

The applicants are citizens of Zimbabwe who have taken it upon themselves to see to it that the respondents adhere to the constitutionally-created obligations imposed on them by section 210 of the Constitution.

The applicants submit, that, the respondents have done nothing to fulfil their constitutional obligations clearly outlined in the supreme law.

Section 210 of the Constitution requires the enactment of a law to provide for an effective and independent mechanism for receiving and investigating complaints from members of the public about misconduct on the part of members of the security services, and for remedying any harm caused by such misconduct.

The applicants aver, that, it has been over two years since the inception of the Constitution and the Act required, in terms of section 210 of the Constitution, has not been put in place.

It is further the applicant's contention, that, the failure by the respondents to enact the law, in terms of section 210 of the Constitution, is a breach of the Constitution. The right to equal protection of the law, under section 56(1) of the Constitution, is under threat, according to the applicants, due to failure or delay in enacting the law directed by section 210 of the Constitution.

The application is opposed.

The respondents submit, that, the law-making process cannot be carried out overnight. The respondents further submitted, that, they are working on making sure that the Act is in place and filed of record a working document they are allegedly focused on as a roadmap towards the eventual enactment of the law in question.

The timeline within which the Act envisaged by section 210 of the Constitution should be enacted sits at the heart of this application.

The applicants, in their final submission to this Court, are seeking the following relief:

1. The respondents failure, to enact the law provided for in terms of section 210 of the Constitution of Zimbabwe, is in breach of the Constitution of Zimbabwe.

2. The failure by the respondents, to enact the law to bring into effect section 210 of the Constitution of Zimbabwe, is a violation of the applicant's right to equal protection and benefit of the law as defined by section 56(1) of the Constitution.

3. The respondents must gazette the Bill envisaged by section 210 of the Constitution of Zimbabwe within 45 days from the date of this order.

4. The respondents, jointly and severally, each paying the other to be absolved pay costs of suit.

ISSUES

The first question this Court is seized with is whether or not the applicants have locus standi to bring this matter before this Court. This question shall be disposed of first before delving into questions arising from the merits of the application.

On the merits of the application, three questions arise and they are the following:

(1) Whether or not the respondent's delay in enacting the law, provided for in terms of section 210 of the Constitution of Zimbabwe, constitutes an unreasonable delay in fulfilling constitutional obligations in terms the Constitution of Zimbabwe.

(2) Whether or not the requirements for a mandamus have been satisfied to order the respondents to gazette the Bill envisaged by section 210 of the Constitution of Zimbabwe within forty five days from the date of this order.

The aforementioned questions, on merit, will be disposed of separately hereunder after addressing preliminary and standing issues.

PRELIMINARY ISSUES

Before proceeding to deal with the merits, there are a number of preliminary issues that call for the Court's attention, although not raised by the parties, but being questions of law.

Their determination is paramount in clarifying what really is before this Court as opposed to what is purportedly so.

THE APPLICANTS FOUNDING AFFIDAVIT IS DEFECTIVE

The founding affidavit in this application is replete with anomalies which render it defective. It is deposed to by the first applicant. He is the one who, under oath, swears to and undertakes to depose to the founding statement forming the basis of the suit. Thereafter, the very same affidavit identifies the second applicant, by naming him, and states, that, the second applicant brings the application 'in his own right.'

It is pertinent to note, that, the second applicant does not, at any point, take the oath or undertake to depose to the founding affidavit.

Neither does he sign the affidavit which is signed by the first applicant.

It does not end there.

The founding affidavit of the first applicant then purports to tell the story of both the applicants.

This it does in the most unusual way. The first applicant appears to be the author of the first to fifth paragraphs of the founding affidavit. He refers to himself in the first person where he states thus: “I am the Applicant herein:” and refers to the second applicant in the second person were he states: “The Second Applicant is Rashid Stuart Mahiya.”

It is not clear at what stage the second applicant takes over the reins of authorship to the first applicant's founding affidavit, but, it appears to be possibly at about the sixth paragraph of the founding affidavit. At paragraph 6.2, the first applicant is referred to in the second person where it says:

“In my line of work, I have witnessed the agonies of the violence perpetrated against our citizens in unmitigated proportions, in particular, the first applicant, by the State and its agents.”

It appears from the above remarks, that, it is the second applicant who now puts forth his own story through the first applicant's founding affidavit.

From the above, it is clear, that, apart from being mentioned by the first applicant, there is no affidavit before the court that can be attributed to the second applicant.

Therefore, the founding affidavit before the court is that of the first applicant.

The second applicant, in a strange and unusual manner 'infuses' his own averments in an affidavit sworn to and signed by the first applicant.

Thus, effectively, there is no affidavit placed before this Court by the second applicant.

The founding affidavit also only identifies two respondents, the first and second respondents. The third and fourth respondents are not identified as respondents save for their citation on the face of the application.

Further to that, at paragraph 8.1 of the founding affidavit, the authorship appears to have reverted back to the first applicant were it is stated that:

“The Applicant and I are ordinary citizens of Zimbabwe and Human rights activists.”

Such back and forth approach is unacceptable. It leaves the facts muddled, not being clear which averments are to be attributed to which applicant. Such breadth-taking bundling is unacceptable, embarrassing, and an unworthy handiwork of one who is a senior legal practitioner.

Further to that, and more seriously, the applicant's affidavit also makes serious allegations against persons who are not cited as parties to the application. Neither were they served with the application to enable them to answer to the allegations made therein.

The founding affidavit, at paragraphs 8.4 to 8.12 (inclusive) alleges that certain individuals believed to be members of the security sector terrorised the first applicant and his family. It alleges vicious assaults and intimidation which resulted in the death of some of the first applicant's family members.

It is now well established at law, that, in the face of such serious allegations, the persons whose conduct is impugned ought be cited and afforded a chance to put across their own case.

In view of the fact that this has not been done, the allegations should be struck out, and, paragraphs 8.4 to 8.12 (inclusive) are accordingly struck off the record.

The second applicant then purports to affirm the first applicant's affidavit through a supporting affidavit that merely states, that, the second applicant confirms the first applicant's averments and makes them his own. In addition, the second applicant deposes to an answering affidavit in circumstances where he has not deposed to a proper affidavit.

That cannot be.

This Court ought not to consider it, the answering affidavit of the second applicant, as it stands on nothing.

It is trite that an application stands or falls on the averments made in the founding affidavit: see HERBSTEIN & Van WINSEN, the Civil Practice of the Superior Courts in South Africa, 3rd ed (hereinafter 'Herbstein & Van Winsen or the Authors')…, where the authors stated that:

“The general rule, however, which has been laid down repeatedly is that an applicant must stand or fall by his founding affidavit and the facts alleged therein; and, that, although sometimes it is permissible to supplement the allegations contained in that affidavit, still, the main foundation of the application is the allegation of facts stated therein, because, these are the facts which the respondent is called upon either to affirm or deny. If the applicant merely sets out a skeleton case in his supporting affidavits, any fortifying paragraphs in his replying affidavits will be struck out.”

From the above remarks, it is clear that the second applicant's replying affidavit ought to be struck out as well.

It is pertinent to note, that, the second applicant's answering affidavit, of five pages, purports to answer to a number of issues, that include locus standi, and, a substantial portion of it relates to section 210 of the Constitution.

Therefore, if struck out, in addition to other anomalies identified, this Court is left with very little on which the application is premised and from which this Court ought to be informed.

However, because the application raises the issue of legality, the court would want to be slow in dismissing such an application offhand, even in the face of these glaringly gross technical glitches, notwithstanding the invidious position which the few remaining valid threadbare averments place the court in.

The application seeks to enforce the constitutional obligations as set out in section 210 of the Constitution, and this Court, as the apex court on constitutional matters, is equally obligated to see to it that constitutional obligations are fulfilled.

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HH264-21 : MUSA KIKA vs MINISTER OF JUSTICE LEGAL & PARLIAMENTARY AFFAIRS and THE CHIEF JUSTICE HONOURABLE LUKE MALABA N.O. and OTHERS
Ruled By: ZHOU J, CHAREWA J and MUSHORE J

IntroductionThis judgment is in respect of two matters, HC2128/21 and HC2166/21. The two matters were heard together because the substance of their complaints is the same.Both matters were brought by way of application. HC2128/21 was instituted as an urgent court application while HC2166/21 was brought as an urgent chamber application.Both ...

Introduction

This judgment is in respect of two matters, HC2128/21 and HC2166/21. The two matters were heard together because the substance of their complaints is the same.

Both matters were brought by way of application. HC2128/21 was instituted as an urgent court application while HC2166/21 was brought as an urgent chamber application.

Both applications are opposed by some of the respondents.

Opposing papers, answering affidavits, and heads of argument were filed following a case management meeting with the parties representatives at which the dates for filing the papers were set by consent.

In case no. HC2128/21 the applicant, a legal practitioner and director of the Zimbabwe Human Rights NGO Forum, cited the Minister of Justice, Legal and Parliamentary Affairs, and all the judges of the Constitutional Court and Supreme Court as well as some of the judges of the High Court, on the basis that they are acting judges of the Supreme Court or have been called upon to act as such.

The judges were cited in official capacities.

The Judicial Service Commission (JSC) was joined in the proceedings, at its instance, at the case management conference.

In HC2166/21 the respondents cited are the Judicial Service Commission (JSC), the Chief Justice of Zimbabwe, Honourable Luke Malaba N.O. and the Attorney General N.O. The applicants in that case are Young Lawyers Association of Zimbabwe and Frederick Charles Moses Mutanda, a liberation war veteran.

Background

On 7 May 2021, the Constitution of Zimbabwe Amendment (No.2) Act 2021 became law after being assented to by the President. The contentious aspects of the Amendment Act which are the subject of the instant applications are found in its section 13.

That section repealed section 186 of the Constitution 2013 and substituted it with a new section 186.

Upon gathering that section 186 of the Constitution, introduced by the Amendment, would apply to the second to eighteenth respondents (Luke Malaba, Elizabeth Gwaunza, Paddington Garwe, Rita Makarau, Anne-Mary Gowora, Ben Hlatshwayo, Bharat Patel, Antonia Guvava, Susan Mavangira, Chinembiri Energy Bhunu, Tendai Uchena, Nicholas Mathonsi, Charles Hungwe, Felistus Chatukuta, Alfas Chitakunye, Samuel Kudya and Lavender Makoni) the applicants instituted the two applications. The applicant in Case No. HC2128/21 seeks the following relief:

“IT IS DECLARED THAT:

1. In accordance with provisions of sections 186(1)(a) and 186(2) (of the Constitution of Zimbabwe 2013) in their original form and notwithstanding provisions of Constitutional Amendment Number 2, second to eighteenth respondents hold office they reach the age of seventy years, whereupon they must, by operation of law, retire.

2.The attempt to subvert the position encapsulated in the "original" section 186(1)(a) and 186(2) of the Constitution of Zimbabwe 2013 is contrary to law and therefore in breach of applicant's right to the protection of the law as set out in section 56(1) of the Constitution of Zimbabwe 2013.

IT IS CONSEQUENTLY ORDERED THAT:

3. LUKE MALABA, must or did, at midnight on 15 May 2021, cease to hold the office of CHIEF JUSTICE OF ZIMBABWE.

4. Any action, conduct, or deed of LUKE MALABA post the 15th of May 2021, purportedly as CHIEF JUSTICE OF ZIMBABWE, is null and void and of no effect.

5. ln accordance with the provisions of section 181 of the Constitution 2013, with effect from midnight on the 15th of May 2021, ELIZABETH GWAUNZA became/becomes the ACTING CHIEF JUSTICE OF ZIMBABWE until such a time as a substantive CHIEF JUSTICE OF ZIMBABWE is appointed.

6. In accordance with the provisions of section 181 of the Constitution 2013, with effect from midnight on the 15th of May 2021, PADDINGTON GARWE became/becomes the ACTING DEPUTY CHIEF JUSTICE OF ZIMBABWE until such a time as a substantive DEPUTY CHIEF JUSTICE OF ZIMBABWE is appointed.

7.There shall be no order as to costs."

During argument, counsel for the applicant abandoned the relief sought in paragraph 6 of the draft order and moved that the draft be amended accordingly.

We point out, that, notwithstanding the statement suggesting that what is being sought in paragraphs 3-7 of the draft order is consequential relief, the relief is clearly in the form of a declaration.

The second to eighteenth respondents did not file opposing papers.

They will therefore be taken not to have opposed the application: see Prosser & 35 Others v Ziscosteel Company Ltd HH201-93 and Panganai and 20 Others v Kadir & Sons (Pvt) Ltd HH26-95.

We do not accept the submission by their counsel that they oppose the application without filing opposing papers. This is because the directions issued on 12 May 2021 required the respondents to file opposing papers if they were opposing the application. Their grounds of opposition would have to be contained in the opposing affidavits.

ln Case No. HC2166/21 the applicant sought declaratory relief as follows:

“IT IS DECLARED THAT:

1. The first respondent (Judicial Service Commission) in failing to activate the provisions of section 180 of the Constitution of Zimbabwe Amendment (No.20) Act 2013 and/or the provisions of section 180 of the Constitution of Zimbabwe as amended by Constitution of Zimbabwe Amendment (No.2) Act 2021 (No.2 of 2021) diligently and without delay violated section 324 of the Constitution of Zimbabwe as amended.

2. The second respondent (Chief Justice Luke Malaba) cannot, by virtue of section 328(7) of the Constitution of Zimbabwe, as amended, benefit from the term limit extension as introduced by an amendment of section 186 by the Constitution of Zimbabwe Amendment (No.2) Act 2021.

3. As a consequence of 2 above, the second respondent shall vacate office as the Chief Justice of Zimbabwe on (sic) midnight of 15 May 2021.

4. Any action, conduct, act, or deed of second respondent post the 15th of May 2021, purportedly as Chief Justice of Zimbabwe, is null and void and of no force or effect.

5. Any attempt to continue in office by second Respondent as Chief Justice of Zimbabwe and/or any continuation in office by second respondent, purportedly as Chief Justice of Zimbabwe, violates applicants right of access to a court of law established by law and applicants right to protection of the law in accordance with section 69(4) and section 56(1) of the Constitution 2013 as amended.

6. The second respondent, in any event, can no longer be a judge of the Constitutional Court for more than 15 years in violation of section 186(1) of the Constitution 2013 as amended.

7. ln the alternative, section 14 of the Constitution of Zimbabwe Amendment (No.2) Act 2021 (No.2 of 2021) is invalid for violating section 56(3) of the Constitution 2013 and is accordingly struck down.

8. There shall be no order as to costs."

The relief set out in the first paragraph was not persisted with as it was predicated upon a misreading of the Constitutional provisions pertaining to the appointment of a Chief Justice in Zimbabwe.

The applicants were under the mistaken belief that the first respondent, the Judicial Service Commission (JSC) had the mandate to call for candidates to participate in an interview.

Section 180 of the Constitution provides that the Chief Justice is appointed by the President after consultation with the Judicial Service Commission (JSC).

The relief sought in paragraphs 2, 3, 4 and 5 is the same one being sought by the applicant in HC2128/21 save for the reference to section 69(4) of the Constitution.

The relief sought in paragraph 6 of the draft order was abandoned during argument. Also, the applicant did not make any submissions in support of the alternative relief being sought in paragraph 7 of the draft order.

We take it that this relief, seeking the declaration of invalidity in respect of section 13 (which was incorrectly referred to as section 14) of the Constitution of Zimbabwe Amendment (No.2) Act 2021, is not being persisted with.

Preliminarv Issues and Obiections

The parties raised preliminary issues and objections:...,.

The Form Used in the Court Application

The respondents objection is that the court application filed on behalf of the applicant is not in Form 29, as is required by Rule 230 of the High Court Rules 1971. The respondents point out, that, the form filed does not alert the respondents to their procedural rights, such as the consequences of any failure to oppose the application.

The only missing portion of Form 29 is the one that warns the respondents, that, if they fail to file their opposing papers within the dies induciae, then, the matter would be dealt with as an unopposed application. In all the other respects, the Form complies with the requirements of Form 29. The dies induciae are not contained in the Form 29 itself but are stated in Rule 232.

The failure to state the period of ten days cannot, therefore, be a failure to comply with Form 29.

The other requirements of Form 29, like the need to file a notice of opposition and opposing affidavit; the need to serve opposing papers; and the entitlement to attach annexures to the opposing affidavits, are stated.

Given that this application was filed under a certificate of urgency, and with truncated periods for filing papers, and would be subject to the directions to be issued by the judges who would be seized with the case, we do not believe that it would have been up to the applicant to warn the respondents of the consequences of a failure to file opposing papers within the proposed dies induciae which were, after all, proposed by the applicants.

These would be subject to whatever directions that the court would give.

These directions were given with the consent of all the parties. No prejudice was occasioned by the failure to state the consequences of a failure to file the opposing affidavit within the period proposed. Those who intended to oppose the applications did file their opposing papers in accordance with the directions issued.

We take note of, and draw attention to, the provisions of section 85(3)(c) of the Constitution 2013, which state that:

“The court, while observing the rules of natural justice, is not unreasonably restricted by procedural technicalities."

Given that all the parties had the opportunity, by consent, to file the opposing and answering affidavits and heads of argument, the objection pertaining to the form used cannot be sustained having regard to the important constitutional questions which arise from the papers.

For these reasons, we dismiss the objection.

SC70-19 : ADRIAN READ vs JOHN GARDINER and SAFARI HUNTERS (PRIVATE) LIMITED
Ruled By: HLATSHWAYO JA, PATEL JA and MAVANGIRA JA

This is an appeal against the judgment of the High Court dismissing, with costs on a legal practitioner and client scale, an application for condonation of the failure to apply for the rescission of a default judgment granted in Case No. HC2424/17 within the time stipulated by the High Court Rules 1971.

The appellant had simultaneously filed an application for the rescission of the default judgment. However, this part of the application was abandoned following strenuous opposition by the respondents and with the concurrence of the court a quo.

Background

The respondents issued summons against the appellant on 21 March 2017, in Case No. HC2424/17, for the payment of $98,979=, together with interest, in respect of sums allegedly misappropriated by the appellant from the second respondent.

The appellant disputed the claim and denied owing any monies as alleged.

A pre-trial conference was set down for 9 October 2017 and was postponed to 26 October 2017. The appellant failed to appear at the pretrial conference because he was unaware that he was required to be present. His legal practitioner also did not appear himself but was represented by his colleague who was unable to explain the appellant's absence.

A default judgement in favour of the respondents was entered against the appellant who consequently filed the dual application for condonation and rescission referred to above through a different firm of legal practitioners.

As was noted by the court a quo, none of the appellant's erstwhile lawyers had filed any supporting affidavits explaining their conduct and the appellant's absence from the pre-trial conference. Furthermore, there was no supporting affidavit from the employee in that firm of lawyers who was said by the appellant to have called him belatedly on the day of the pretrial conference.

In his founding papers, the appellant lamented the “gross negligence” on the part of his erstwhile lawyers and the “great disservice” occasioned to him by their conduct.

Judgment Appealed Against

The court a quo found, that, in view of the above evidentiary deficiencies, the appellant's averments remained unsubstantiated.

In the court's view, this was a typical case where the dereliction of professional duty, imputed by the appellant to his legal practitioners of choice, should be held against him personally.

The court observed that the pre-trial conference was postponed and that the appellant must have been aware of the postponement. There was therefore no reason why he did not attend the pretrial conference since any diligent litigant would attend unless excused from so doing.

Additionally, the fact that the appellant had accepted the wrong legal advice from his lawyers, in noting an appeal against the default judgement, did not justify his subsequent attempt to follow the correct procedure because, if he were allowed to do so, there would be no finality to litigation.

As regards the appellant's prospects of success, the learned judge a quo found, that, the appellant had not shown that the intended application for rescission had any merit. This was due to the fact that his defence to the claim instituted by the respondents was not articulated in his application.

As for costs, the learned judge took the view, that, the appellant had persisted with the application even though he knew that it had no merit. Consequently, the respondents had been unnecessarily put out of pocket for the costs of attendance by an advocate on two different days when the matter could have been argued in less than an hour.

In the event, the application for condonation of the failure to timeously apply for rescission of the default judgment was dismissed with costs on a punitive scale.

Grounds of Appeal

The grounds of appeal in this matter, as grammatically corrected, are as follows:

(1) The court a quo erred at law in finding, that, the appellant did not articulate his defence to the claim despite such defence being addressed in the application for condonation and the heads of argument. The failure to properly deal with prospects of success amounts to a failure to determine the matter according to law.

(2) The court a quo erred in not making a cumulative assessment on whether all the requirements had been satisfied as required by law. A court is bound, at law, to consider and evaluate all the requirements in conjunction with each other and not to place too much emphasis on the requirements individually.

(3) The court a quo grossly misdirected itself in extending the sins of the appellant's erstwhile legal practitioners to the appellant. The peculiar circumstances of the matter were that the appellant could not make an independent assessment or give a considered instruction on the remedies adopted, and, therefore, non-compliance should not have been extended to him.

(4) The court grossly erred at law in failing to find that the appellant had high prospects of success and in failing to exercise its discretion to grant condonation in the interests of justice.

Criteria for Condonation of Non-compliance

The factors to be considered in an application for the condonation of any failure to comply with the rules of court are well-established. They are amply expounded in several decisions of this Court in which the salient criteria are identified. They include the following:

(a) The extent of the delay involved or non-compliance in question.

(b) The reasonableness of the explanation for the delay or non-compliance.

(c) The prospects of success should the application be granted.

(d) The possible prejudice to the other party.

(e) The need for finality in litigation.

(f) The importance of the case.

(g) The convenience of the court.

(h) The avoidance of unnecessary delays in the administration of justice.

See Forestry Commission v Moyo 1997 (1) ZLR 254 (S); Maheya v Independent African Church SC58-07; Paul Gary Friendship v Cargo Carriers Limited & Anor SC01-13.

As was observed in the latter case, the factors listed above are not exhaustive.

Whether Defence to Claim was Articulated

In its judgment, the court a quo found that “the applicant has not shown that the intended application for rescission has merits [because] the applicant's defence to the claim is not articulated in this application.”

Having regard to the contents of the applicant's founding affidavit a quo, the above finding is patently erroneous.

In that affidavit, the appellant not only attacks the order sought to be rescinded but also categorically articulates his defence to the main claim, to wit, that the alleged payments of salary were not made by the second respondent but by a different company run by the first respondent and that, therefore, the respondents had no cause of action against him.

In their opposing papers, the respondents did not challenge the appellant's averments as to his defence.

What this shows is that there was a dispute between the parties which required a determination on the merits.

The court a quo did not find that the appellant's defence was spurious or unsustainable. It simply declared that there was no defence whatsoever.

It is relatively clear, therefore, that, the court a quo failed to take into account the appellant's averments, and, consequently, made findings that were entirely inconsistent with the affidavits filed by the parties.

In this regard, it obviously erred and misdirected itself in the exercise of its discretion on the facts that were placed before it, by not dealing properly with the appellant's defence and his prospects of success.

Which Prospects of Success

An interesting point of law that arose in the course of submissions by counsel relates to the following question: which prospects of success must a court assess in considering an application for condonation of the failure to apply timeously for the rescission of a default judgment?

Is it the prospects of success in the application for rescission or the prospects of success in the main matter in which the default judgment was granted?

Counsel for the respondents insists, that, it is the former only, while counsel for the appellant contends that it is either the latter or both, the former and the latter.

In this context, the cases relied upon by both counsel do not afford any definitive answer to the question raised.

In Maheya v Independent African Church SC58-07, the Court was seized with an application for the reinstatement of an appeal. MALABA JA…, held…, that, the appellant could not escape the consequences of the lack of diligence on the part of her legal practitioners and that this, coupled with the absence of prospects of success on appeal, justified the dismissal of the application for reinstatement of the appeal.

In Chomurema & Anor v Telone SC86-14, the applicants sought leave to file a belated appeal against their dismissal from employment.

GWAUNZA JA…, noted…, that, there was nothing to prevent the Labour Court, in the interests of finality to litigation, from hearing a composite application for condonation of the late filing of an application for leave to appeal together with an application for leave to appeal to the Supreme Court.

Finally, the case of Hove v Zimphos Ltd & Ors SC08-18 concerned an application for condonation of the late noting of an application for the rescission of a default judgment.

ZIYAMBI AJA…, found that the applicant had to establish that the intended application for rescission enjoyed prospects of success. The learned judge then proceeded to find that it had not been shown that there were prospects of success on appeal on the grounds of appeal raised or that there was any impropriety in the manner in which the Labour Court exercised its discretion to dismiss the application for condonation. For these combined reasons, the instant application for condonation was dismissed with costs.

As I have already intimated, these decisions, rendered in chamber applications, do not decisively answer the question posed.

My tentative and obiter view is that it is the merits of the main matter and the prospects of success therein that the court is enjoined to consider in an application for the condonation of the late noting of an application for the rescission of a default judgement.

I take this view on the basis, that, it is necessary for the court seized with either application to grapple with the merits of the main matter in order to properly address the gravamen of the real dispute between the parties involved. Any other approach would tend to militate against the need for finality in litigation as well as the interests of justice.

In any event, my view on this question is rendered somewhat superfluous by the fact that the court a quo did not address any prospects of success whatsoever in disposing of the application before it.

Whether Criteria for Condonation Properly Assessed

The appellant does not dispute that his erstwhile legal practitioners displayed a flagrant disregard for the Rules in the manner in which they conducted themselves in the main matter. Nevertheless, he avers that he has a viable and bona fide defence to the respondents claim in that matter.

In this respect, counsel for the respondents submits, that, condonation for non-compliance may be refused even if the applicant concerned has demonstrated good prospects of success.

This submission is clearly correct as is illustrated by the case of Kodzwa v Secretary for Health and Child Welfare & Anor SC50-99…, where SANDURA JA remarked:

“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.”

While this approach is unassailable, it does not, whether expressly or impliedly, discount the need to consider, cumulatively, all of the factors to be taken into account, and to weigh them in a measured balancing exercise, before deciding whether or not condonation should be granted in any given case: see Maheya v Independent African Church SC58-07 …,.

This position is also aptly captured in Chiweza & Anor v Mangwana & Ors HH186-17 per DUBE J…, as follows:

“The court is required to consider the requirements for an application for condonation cumulatively and weigh them against each other.

The application for condonation is not decided on one exclusive factor.

The existence of strong prospects of success may compensate for any inadequate explanation given for the delay. Where the applicant proffers a good explanation for the delay this may serve to compensate for weak prospects of success in the main matter.

Good prospects of success and a short delay, albeit with an unsatisfactory explanation, may lead to granting of the application.

The court dealing with the application has a wide discretion which it must exercise judicially after considering all the circumstances of the case. The factors are not to be individually considered, but cumulatively considered with the strong making up for the weak. The court should endeavor [sic] to be fair to all the parties involved.”

In the instant case, it is evident that the court a quo focused solely on the reasons for non-compliance, i.e. the gross lack of diligence on the part of the appellant's erstwhile legal practitioners and the vicarious attribution of their incompetence to the appellant himself.

The court failed to assess all the other relevant aspects of the test for condonation.

In particular, it totally failed to evaluate the appellant's prospects of success, whether in respect of the intended application for rescission or in respect of the main matter. The court only considered the reasonableness of the explanation proffered by the appellant for the delay in applying for rescission of the default judgment.

Having found that the appellant's explanation was not reasonable, the court proceeded, without further ado, to dismiss his application for condonation.

However, it was imperative for the court to have assessed all the other salient factors to be considered, in a cumulative fashion, and then to have weighed them against each other, before declining to grant the application before it.

In failing to do so, it proceeded upon the wrong principle and consequently gravely misdirected itself.

Disposition

Given my findings in respect of the first and second grounds of appeal in favour of the appellant, I do not deem it necessary to consider the merits of the third and fourth grounds which are essentially tangential to and dependent upon the first two grounds.

A determination of those grounds is also rendered otiose in light of the amended relief sought by the appellant at the hearing of this appeal, viz. that the matter be remitted to the High Court, before a different judge, to deal with the matter de novo.

The decision of the court a quo was based on the exercise of its discretion on whether or not to grant the application for condonation.

It is trite that an Appellate Court will not readily interfere with the exercise of discretion by a subordinate court. It should only do so, having regard to the oft-quoted test enunciated in Barros & Anor v Chimponda 1999 (1) ZLR 58 (S)…, per GUBBAY CJ:

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

In casu, I have earlier adverted to the errors made by the learned judge a quo in the exercise of his discretion:

(i) Firstly, he mistakenly found that the appellant had not articulated his defence to the main claim and thereby failed to take into account the relevant considerations underlying the appellant's prospects of success.

(ii) Secondly, he confined his attention to the reasonableness or otherwise of the explanation advanced by the appellant for the delay in applying for rescission of the default judgment.

By not having regard to all the salient factors to be considered in an application for condonation, in particular, the appellant's prospects of success in either the intended application for rescission or in the main matter, and by not balancing those factors against each other, the learned judge proceeded on the wrong principle and thereby incurably misdirected himself.

Consequently, the foregoing errors and misdirections, in the injudicious exercise of his discretion, operated to vitiate his decision to dismiss the application for condonation before him. It follows that the decision cannot be allowed to stand and must be set aside.

As regards the relief to be granted in casu, the most appropriate remedy would be to remit the matter to the High Court to enable a different judge to address and determine the application for condonation on a proper basis.

Furthermore, it also seems expedient, in order to expedite the finalisation of the matter, that the application for rescission be adjudicated at the same time as the application for condonation.

In my view, there is nothing, in principle, to preclude the composite adjudication of the two applications together, especially as the considerations to be applied in the determination of both applications are virtually identical.

As regards the costs of this appeal, there is no compelling reason why they should not follow the cause.

It is accordingly ordered that:

1. The appeal be and is hereby allowed with costs.

2. The judgment of the court a quo be and is hereby set aside.

3. The matter is remitted to the High Court, before a different judge:

(a) To determine the application in Case No. HC1067/18 for condonation of the late filing of the application for rescission of the default judgment granted in Case No. HC2424/17 on 26 October 2017; and

(b) Thereafter, in the event that the aforesaid application for condonation is granted, to determine the aforesaid application for rescission of the default judgment.

Appealed
SC75-17 : EDWARD MADYAVANHU vs REGGIE SARUCHERA and GRANT THORNTON CAMELSA CHARTERED ACCOUNTANTS (ZIMBABWE) and CAIRNS FOODS LTD
Ruled By: GWAUNZA JA, GUVAVA JA and ZIYAMBI AJA

On 21 July 2016, the High Court dismissed the appellant's chamber application for the reinstatement of his claim on the third respondent's creditors list. Aggrieved, the appellant filed this appeal, which we dismissed with costs on 6 July 2017.

The appellant wrote to the Registrar requesting the reasons for the order. These are they.

The facts of this case are as follows:

The appellant was formerly employed by the third respondent. Sometime in 2004, he obtained judgment in the Labour Court awarding him damages for unlawful termination of employment. The quantum of damages that he was granted came to ZW$26,076,252= after quantification by the Labour Court.

However, before the third respondent could make any payment, it was placed under judicial management.

The first respondent, who works for the second respondent, was appointed the Judicial Manager. The appellant then filed, with the Master of the High Court, a claim for his debt to be placed on the list of the third respondent's other creditors.

The claim was provisionally accepted but later revoked at the instance of the first respondent.

This was because, while the appellant's debt was denominated in Zimbabwean dollars, he had lodged his claim in United States dollars amounting to USD3,057,199= without an order of court converting his Zimbabwean dollar claim to United States dollars.

He had, it seemed, done the conversion of the amount himself.

The appellant then approached the court a quo seeking to be reinstated on the list of creditors. The specific order that he sought read as follows:

It is ordered that:

“1. Applicant's claim be and is hereby reinstated to the creditors of third respondent.

2. Within 48 hours of the issuance of this order, fourth respondent avails to applicant the payment schedule for third respondent's judicial management creditors.

3. On a jointly and severally basis (sic) and within 21 days of the issuance of this order, first, second, and third respondents pay applicant:

(a) The full amount of his claim in accordance with the schedule of payment of creditors of the same class.

(b) Interest at the prescribed rate on all overdue payments.

(c) First, second, and third respondent pay costs of suit.”

A point in limine was raised by the first respondent, on behalf of the second respondent, to the effect, that, there was no legal basis for the appellant to sue the latter as this was done solely for the reason that the first respondent worked for the second respondent.

The court a quo upheld the point in limine and also dismissed the whole application on the merits for the following reasons;

(a) At the time the appellant filed the application before the court a quo, the third respondent was no longer under judicial management, therefore, the relief he sought could no longer bind the first respondent because he ceased to be the third respondent's judicial manager the moment it was removed under judicial management; and

(b) The claim lodged by the appellant, before the Master of the High Court, was an amount which had not been properly converted at law, therefore, the court could not direct the Master to reinstate the claim.

Aggrieved by the court a quo's decision, the appellant approached this Court, on appeal, seeking the following relief;

“It is prayed that;

1. The High Court judgment be set aside.

2. Leave be granted for registration with the High Court in Harare, for purposes of enforcement, my claim of USD3,057,199 against third respondent which was proved and admitted in the creditors meeting held on 13 February 2013 pursuant to the company's judicial management and has never been set aside or varied.

3. Interest at the prescribed rate be paid on the claim amount from 3 November 2015, the day following the date of cancellation of the final judicial management order, to the date of final settlement.

4. The respondents pay the whole litigation cost for this matter.”

In their heads of argument, the respondents raised three points in limine with regards to the relief sought:

(i) Firstly, they contended, that, the appellant failed to pray for the success of his appeal in this court hence the relief sought was incompetent.

(ii) Secondly, they argued that the relief which the appellant was seeking on appeal, before this Court, was different from that which he sought in the court a quo.

(iii) Thirdly, the respondents argued, that, the relief sought was 'fatally defective' in that the appellant sought an order for costs against all the respondents but did not seek any substantive relief against the first and second respondents.

In response to these points in limine, the appellant, in his heads of argument, argued, that, there is no provision in the Rules which requires a party to expressly state whether or not the appeal should succeed as the judges can themselves simply state that the appeal succeeds or not.

He explained that the intention that the appeal succeeds is apparent from the very act of appealing itself.

With regards to the allegation that he now seeks what he did not seek in the court a quo, the appellant's position was that only the method of enforcement had changed but he still sought the same relief.

On the point that he was not seeking any substantive relief against the first two respondents except for costs, the appellant argued, that, it is clear from his papers that the first two respondents were liable to him under delict for the third respondent's failure to pay his debt.

The Court found there was merit in the respondents points in limine, in particular, that, the appellant's Notice of Appeal did not satisfy the provisions of Rule 29 of the Supreme Court Rules. This Rule provides that;

“29 Entry of Appeal

(1) Every civil appeal shall be instituted in the form of a notice of appeal signed by the appellant or his legal representative, which shall state —

(a) The date on which, and the court by which, the judgment appealed against was given;

(b) If leave to appeal was granted, the date of such grant;

(c) Whether the whole or part only of the judgment is appealed against;

(d) The grounds of appeal in accordance with the provisions of Rule 32;

(e) The exact nature of the relief which is sought;

(f) The address for service of the appellant or his attorney;”

The wording of the provision shows that the Rule is mandatory in nature, meaning, that, any document labelled 'Notice of Appeal' must comply with it in order to be a valid notice of appeal.

The information required in terms of this provision must be clearly set out even where it may be obvious or deducible from the given text of the grounds of appeal.

The purported Notice of Appeal in casu, in the court's view, did not meet the requirements set out in the mandatory provision cited. It also fell short in other respects as indicated below.

The respondents are correct in the submission, that, the appellant's failure to pray for the success of the appeal in this court, before the judgment a quo could be set aside and substituted, constitutes a serious defect in the Notice of Appeal.

Rule 29(1)(e) of the Supreme Court Rules is specific in its language and requires that the relief sought be exact and competent so that the court is left in no doubt as to what exactly the appellant seeks.

In Ndlovu v Ndlovu and Another SC133-02, MALABA JA…, dealing with a similarly defective Notice of Appeal, held that;

“The exact nature of the relief sought was not stated. What was prayed for in the notice of appeal was that the judgment of the court a quo be dismissed with costs. It is the appeal which is dismissed or allowed. If the appeal is allowed, the judgment or decision appealed against is then set aside and a new order substituted in its place. In this case, it was not known what order the appellants wanted this Court to make in the event the appeal succeeded.”

These words are fully applicable to the circumstances of this case.

The respondents point in limine in this respect is accordingly upheld.

The second point in limine raised by the respondents, concerning new relief being sought on appeal by the appellant, also has merit.

As correctly observed, the appellant approached the court a quo seeking to reinstate his claim on the third respondent's list of creditors in the office of the Master of the High Court.

The application a quo having failed, the appellant, on appeal, now sought an order granting him leave to register his claim for payment of USD3,057,199= by the third respondent, for purposes of enforcement.

This request pre-supposes, quite erroneously, that the High Court made an order reinstating his claim on the creditors list. This not having happened, the relief now sought is not one that is open to this Court to grant.

An Appeal Court, by nature, is one that considers and assesses the correctness or otherwise of the decision of a lower court on any particular issue. Where no such issue is considered by an inferior court, it follows, generally, that, there is nothing for the Appeal Court to determine.

It is in the appellant's interest to fully appreciate this point, which was aptly captured in Dynamos Football Club (Pvt) Ltd & Anor v ZIFA & Ors 2006 (1) ZLR 346 (S) 355.

MALABA JA…, in that case, held, that, generally a party cannot seek, on appeal, relief that they did not seek in the lower court: see also Goto v Goto 2001 (2) ZLR 519 (S) where the court held that it was not open to the appellant in that case, in the absence of an amendment to her declaration, to claim on appeal something which she did not claim in the court a quo.

The exception to this rule was outlined in Dynamos Football Club (Pvt) Ltd & Anor v ZIFA & Ors 2006 (1) ZLR 346 (S) 355 where it was held as follows;

“There are, however, other decisions to the effect, that, the Appellate Court has a discretion, in appropriate cases, to grant relief claimed for the first time on appeal if it is satisfied that all the facts on which the court of first instance would have decided the matter had it been raised with it were available for its consideration and such facts as are essential to the decision are common cause or well-nigh incontrovertible: see Workmen's Compensation Commissioner v Crawford and Anor 1987 (1) SA 290 at 307G; Donelly v Barclays National Bank Ltd 1990 (1) SA 375 at 380I-381A.”

When this is applied to the facts of this matter, it is evident that the requirements listed, which would have entitled the appellant to seek the relief in question for the first time on appeal, have not been met.

Related to this issue, this Court finds, as did the court a quo, that, the amount claimed by the appellant was not converted into US dollars by a court of competent jurisdiction.

It was not enough for the appellant to attempt a conversion on his own, using a rate that was not known and coming up with a figure which no court had endorsed. Consequently, the appellant (a quo) failed to establish a proper basis for the inclusion of the US dollar amount that he sought, on the third respondent's list of creditors.

The judgment of the court a quo cannot, in this respect, be faulted.

Finally, and as correctly observed by the respondents, the appellant's claim for costs against parties from whom no substantive relief was sought was incompetent and therefore not to be sustained.

In this respect, the court notes, that, the appellant, in his draft order, did not seek the setting aside and substitution of the High Court's decision upholding the point in limine concerning the misjoinder to the proceedings of the second respondent.

That part of the court a quo's decision therefore stands unchallenged, with the result, that, the second respondent was, in reality, wrongly cited in this appeal.

It follows, that, the order of costs sought against it is incompetent.

In any case, the court finds no merit in the appellant's submission, that, the second and third respondents were liable to him 'in delict' and are therefore properly sued for costs.

The proceedings a quo were clearly not delictual in nature and the appellant's claim for costs cannot, by that token, be founded on them.

It is noted, that, a number of matters have been struck off the roll by this Court on the ground that the relief sought was not exact in nature, and that, as a result, the related Notice of Appeal was incurably defective: see Ndlovu v Ndlovu and Another SC133-02.

However, in this case, the court found, that, the appeal was not only incurably defective but wrong and bad in law. The appeal could therefore not properly be struck off the roll because the appellant had no avenue, legally or procedurally, to follow in case he was inclined to bring the same appeal before this Court.

It is emphasized, in this respect, that, the appellant could not have secured the relief that he sought in the court below from the first respondent, for the simple reason, that, he had ceased to be the Judicial Manager of the third respondent, which, in its turn, had ceased to be a company under judicial management.

There was, therefore, no longer a list on which the appellant's claim could be included.

In addition to this, the second respondent was improperly sued from the beginning because it was not an interested party in the dispute, it being the first respondent's employer.

Given that the appellant's Notice of Appeal was, for the reasons stated, fatally defective, that he sought relief that was incompetent, and that he sought to sue parties that not only had no interest in the suit, but, in the case of the first and third respondents, had ceased to possess the status indicated, the court's unanimous view was that the appeal ought to be dismissed, not struck off the roll.

Appealed
SC179-20 : MFUNDO MLILO vs THE PRESIDENT OF THE REPUBLIC OF ZIMBABWE
Ruled By: GARWE JA, MAKARAU JA and MAKONI JA

This is an appeal against the judgment of the High Court handed down on 4 May 2018.

The appellant had, before that court, sought a declarator that the Presidential Powers (Temporary Measures) (Amendment of Electoral Act) Regulations 2016 published as Statutory Instrument 117/2017 were null and void and of no force or effect.

The appellant had also sought an order declaring the enabling Act, the Presidential Powers (Temporary Measures) Act [Chapter 10:20] to be inconsistent with the Constitution of Zimbabwe, and, as a consequence, the striking down of that Act.

In the alternative, the appellant sought a declaratur that section 2(2) of the Presidential Powers (Temporary Measures) Act [Chapter 10:20] is inconsistent with the Constitution and that the same be struck down.

After hearing argument from both parties, the High Court dismissed the application with costs. It is against that order that the appellant has now appealed to this Court.

BACKGROUND FACTS

The Presidential Powers (Temporary Measures) Act [Chapter 10:20] (“the Act”) provides as follows in section 2 thereof:

“2. Making of Urgent Regulations

(1) When it appears to the President that:

(a) A situation has arisen, or is likely to arise, which needs to be dealt with urgently in the interest of defence, public safety, public order, public morality, public health, the economic interests of Zimbabwe or the general public interest; and

(b) The situation cannot adequately be dealt with in terms of any other law; and

(c) Because of the urgency, it is inexpedient to await the passage through Parliament of an Act dealing with the situation; then, subject to the Constitution and this Act, the President may make such regulations as he considers will deal with the situation.

(2) Regulations made in terms of subsection (1) may provide for any matter or thing for which Parliament can make provision in an Act:

Provided that…,. (not relevant).”…,.

Section 5 of the Presidential Powers (Temporary Measures) Act provides:

“Regulations made in terms of section two shall, to the extent of any inconsistency, prevail over any other law to the contrary, apart from regulations that have been made and are in force in terms of the Emergency Powers Act [Chapter 11:04].”

Acting in accordance with the above provisions of the Presidential Powers (Temporary Measures) Act, the President of the Republic of Zimbabwe, who is the respondent in this matter, published, on 15 September 2017, in the Government Gazette Extraordinary, the Presidential Powers (Temporary Measures) (Amendment of Electoral Act) Regulations, SI117 of 2017 (“the Regulations”). The Regulations sought to amend certain sections of, and the Schedule to, the Electoral Act [Chapter 2:13].

On 20 October 2017, the applicant filed a court application seeking the declarators referred to and an order setting aside both the Presidential Powers (Temporary Measures) Act [Chapter 10:20] and the Presidential Powers (Temporary Measures) (Amendment of Electoral Act) Regulations, S.I.117 of 2017.

THE APPELLANT'S CASE A QUO

In his founding affidavit in the court a quo, the appellant, as applicant, stated as follows:

The Presidential Powers (Temporary Measures) Act is unconstitutional because it gives the President of the Republic of Zimbabwe the power to enact Regulations which override existing Acts of Parliament. Nowhere in the Constitution is the President given the power to make law as provided for in the Presidential Powers (Temporary Measures) Act.

Although section 116 of the Constitution states that the Legislature of Zimbabwe consists of Parliament and the President, it is clear that the President is involved only to the extent stipulated in Chapter 6 as read with the Fifth Schedule to the Constitution.

Section 134 of the Constitution makes it clear that Parliament may, in an Act of Parliament, delegate the power to make statutory instruments within the scope of and for purposes laid out in the Presidential Powers (Temporary Measures) Act but in no uncertain terms prohibits the delegation of Parliament's primary law making function.

It was never the intention that delegated legislation could have the effect of altering an existing Act of Parliament.

In terms of section 5 of the Presidential Powers (Temporary Measures) Act, the President has sweeping powers to make laws that transcend existing Acts of Parliament.

For that reason, the applicant sought an order striking down both the Presidential Powers (Temporary Measures) Act [Chapter 10:20] and the Presidential Powers (Temporary Measures) (Amendment of Electoral Act) Regulations, SI117/2017.

THE RESPONDENT'S CASE A QUO

In his opposing affidavit, the respondent stated as follows:

The provisions of the Electoral Act amended by the Presidential Powers (Temporary Measures) (Amendment of Electoral Act) Regulations, S.I.117/2017 had not envisaged the use of the biometric voter registration system which requires voters to have fingerprints and photographs taken in addition to filling in forms.

The President accepted, that, in terms of section 2 of the Presidential Powers (Temporary Measures) Act, he can enact laws, but, submitted that any Regulations he makes are subject to scrutiny by Parliament which can resolve either to have them amended or repealed.

Further, and in any event, section 110 of the Constitution gives him the power conferred by the Constitution, an Act of Parliament, or other law, to enable him to exercise his functions as Head of State.

The reference to “other law” includes provisions of the common law, customary law, and international law in force in Zimbabwe.

Under the common law, the President has always enjoyed prerogative powers which entitle him to promulgate temporary legislation in urgent situations. Those prerogative powers have not been abolished under the Constitution and consequently remain at his disposal.

DETERMINATION OF THE COURT A QUO

In its determination, the court a quo found, that, in invoking his powers under the Presidential Powers (Temporary Measures) Act, the respondent was not abusing the law-making function conferred upon him by the Act.

The new voters roll could not properly be covered by a law which Parliament would have introduced, debated, and passed into law without interfering with the requisite time lines of the 2018 harmonised elections.

The court a quo accepted, that, the question whether or not the Presidential Powers (Temporary Measures) Act is legal depends on the interpretation of the Constitution.

It found, that, the President's “necessary and unavoidable intrusion into the function of Parliament” is evident from a reading of section 86 of the Constitution.

It further found that “it is only the President who has the power to limit, through the Act, the people of Zimbabwe's fundamental rights and freedoms which are contained in the Constitution”.

The court also found that “because the President's law making power exists in the Act, the drafters of the Constitution did not include it in section 134 of the Constitution” and that “because his powers, as stated in section 86(2)(b) of the Constitution, relate to the limitation of the people of Zimbabwe's fundamental rights and freedoms in certain unforeseen circumstances, he could not effectively exercise the same under section 134 of the Constitution.”

The court consequently dismissed the application with costs.

PROCEEDINGS BEFORE THIS COURT

Unhappy with the dismissal of his application by the court a quo, the appellant noted an appeal to this Court. His grounds of appeal are that:

“1.1 The court a quo erred as a question of law, in upholding the validity of the Presidential Powers (Temporary Measures) Amendment of Electoral Act Regulations 2016 published in Statutory Instrument 117/2017.

1.2 A fortiori, the court a quo erred in holding that the President could make law.

1.3 In addition, the court a quo erred in failing to hold that the Presidential Powers (Temporary Measures) Act [Chapter 10:20] was an unlawful delegation of legislative power and was therefore ultra vires the Constitution of Zimbabwe.

1.4 In the alternative, the court a quo failed to uphold that section 2(2) of the Presidential Powers (Temporary Measures) Act [Chapter 10:20] was null and void and of no force and effect to the fact that it permitted the making of laws overlooking Parliament.”…,.

In his prayer, he seeks an order setting aside the order of the court a quo, and, in its place, an order granting the relief he had sought before the court a quo.

APPELLANT'S SUBMISSIONS BEFORE THIS COURT

In his submissions, the appellant states as follows:

Section 86 of the Constitution is just a limitation clause and does not allow the President to limit rights or to be the person who curtails the rights of persons. Section 86 of the Constitution only relates to a law of general application made and passed by Parliament and not by an individual.

The Presidential Powers (Temporary Measures) Act [Chapter 10:20], that is the subject of this appeal, amounts to Parliament outsourcing its original law-making powers.

The function of the President, under section 110 of the Constitution, is not to make law, but, merely to assent to a Bill, and, if he does not agree, to refer the Bill to the Constitutional Court for an opinion on its constitutionality.

He further argues, that, there is a difference between delegating authority to make subordinate legislation within the framework of a statute under which the delegation is made, and assigning primary law making power to another body.

In this case “the President is even higher than Parliament because he can amend what Parliament has done.”

On the remedy, the appellant submits, that, an order should be issued nullifying the Presidential Powers (Temporary Measures) Act [Chapter 10:20].

However, since the retrospective declaration of invalidity might produce significant disruption in the voter registration exercise, the court should make an order that limits the retrospective effect of any such declaration.

He makes it clear, that, he has no difficulty with the substance of the amendments and that the gravamen of his displeasure is the manner in which they were effected.

RESPONDENT'S SUBMISSIONS BEFORE THIS COURT

In his heads of argument, the President states, that, whilst he does not entirely agree with the reasoning of the court a quo, he agrees with the order made.

He submits, as he did before the court a quo, that, the Presidential prerogative is a power that attaches to the President by virtue of his office, and that, under the common law, he has always enjoyed prerogative powers which entitle him to promulgate temporary legislation in urgent situations. Those prerogative powers were never abolished but are now codified under the Presidential Powers (Temporary Measures) Act.

The reference to “other law” in section 110(1) of the Constitution includes, by necessity, the provisions of the common law in force in this country.

Lastly, he maintains, that, as the Presidential Powers (Temporary Measures) (Amendment of Electoral Act) Regulations, S.I.117/2017 have to be laid before Parliament for approval, this shows that Parliament, essentially, still retains its primary lawmaking power.

In the course of considering the possible disposition of this matter, a question of law arose, namely, whether the appellant could properly appeal to this Court against a determination of constitutional validity by the court a quo.

Being an important issue that could be dispositive of this matter, and in light of the fact that neither party had hitherto addressed the court on it, this Court asked both parties to file supplementary submissions within a given time frame.

This the parties proceeded to do.

APPELLANT'S SUPPLEMENTARY SUBMISSIONS

In his supplementary heads of argument, the appellant has submitted, that, where the High Court, as in this case, issues an order of constitutional validity, that determination is subject to an ordinary appeal to this Court. Where, however, the same court issues an order of constitutional invalidity, then, that order must be referred to the Constitutional Court in terms of section 175 of the Constitution.

In other words, in the former case, there is no obligation that the order of constitutional validity be referred to the Constitutional Court for confirmation.

The appellant further submitted, that, in terms of section 43 of the High Court Act [Chapter 7:06], the Supreme Court has an obligation to hear and determine all appeals from the High Court of Zimbabwe, whether in the exercise of its original or appellate jurisdiction.

Further, in terms of section 21 of the Supreme Court Act, the Supreme Court has 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.

In terms of section 22 of the Supreme Court Act, the Supreme Court shall have the power to confirm, vary, amend or set aside the judgment appealed against or give such judgment as the case may require.

There is, therefore, nothing in the High Court Act or Supreme Court Act, so the appellant argues, that takes away the power of the Supreme Court to entertain an appeal from the High Court. The only limitation is in respect of an order of Constitutional invalidity which must be confirmed by the Constitutional Court before it has any effect.

The appellant has further submitted, that, in light of the wording of section 175(3) of the Constitution, any interested person has a right to appeal or apply directly to the Constitutional Court to confirm or vary the order of constitutional validity.

Subsection (3) of section 175 of the Constitution refers to a court order made in terms of subsection (1) of that section, which subsection provides for an order of constitutional invalidity. The reference, in subsection (3), to an order concerning constitutional validity in terms of subsection (1) restricts the meaning of subsection (3) to orders of constitutional invalidity only.

In other words, the right to appeal to the Constitutional Court is restricted by the fact that such a right only applies to an order of constitutional invalidity provided for in subsection (1).

Further, Rule 31 of the Constitutional Court Rules refers to an order of constitutional invalidity and not an order of constitutional validity. The express mention of orders of constitutional invalidity excludes orders of constitutional validity.

In the event that the Supreme Court declares a law to be invalid, then, that order has to be confirmed by the Constitutional Court.

RESPONDENT'S SUPPLEMENTARY SUBMISSIONS

The respondent does not accept the appellant's submissions in this regard and submits that the Supreme Court has no jurisdiction to hear and determine such an appeal, because, in terms of section 175(1) of the Constitution only the Constitutional Court is empowered to confirm or vary an order concerning constitutional validity by any court.

Subsection (3) of section 175 of the Constitution refers to an order concerning constitutional validity by a court in terms of subsection (1). If subsection (1) and (3) of section 175 are read together, it becomes apparent that section 175 of the Constitution refers not only to orders of constitutional invalidity but also orders of constitutional validity.

Only the Constitutional Court is empowered to confirm or vary an order of Constitutional invalidity.

The Supreme Court would be unable to sufficiently deal with the issue of constitutional validity or invalidity of any law and is not in a position to vary or confirm any order concerning constitutional validity of any law. Although the Supreme Court is the final court in non-constitutional matters, it cannot usurp the powers of the Constitutional Court in this regard.

ISSUE(S) ARISING FOR DETERMINATION

From the foregoing, it seems to me that two broad issues arise for determination before this Court:

(i) The first is whether an order of constitutional validity by the High Court can be appealed against to the Supreme Court rather than directly to the Constitutional Court.

(ii) The second is whether the Presidential Powers (Temporary Measures) Act is consistent with the Constitution of Zimbabwe.

I proceed to deal with these two issues in turn.

The question whether an order of constitutional validity is appealable to the Supreme Court is one of interpretation. To determine the question there is need to look at the provisions of the Constitution that have a bearing on this issue.

One must, I think, start with section 167(3) of the Constitution which states as follows:

“(3) The Constitutional Court makes the final decision whether an Act of Parliament or conduct of the President or Parliament is constitutional and must confirm any order of constitutional invalidity made by another court before that order has any force.”

Section 169(1) of the Constitution, in turn, provides:

“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.”

This is then followed by section 175 of the Constitution which provides, in relevant part, as follows:

“175 POWERS OF COURTS IN CONSTITUTIONAL MATTERS

(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)…,. (Not relevant)

(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 subsection (1).

(4)…,. (Not relevant)

(5) An Act of Parliament or rules of court must provide for the reference to the Constitutional Court of an order concerning constitutional invalidity made in terms of subsection (1) by a court other than the Constitutional Court.”

CONSTITUTIONAL INTERPRETATION

In Mawarire v Mugabe & Ors 2013 (1) ZLR 469, the Constitutional Court of Zimbabwe remarked as follows…,:

“In general, the principles governing the interpretation of a Constitution are basically the same as those governing the interpretation of statutes.

One must look to the words actually used and deduce what they mean within the context in which they appear: see Hewlett v Minister of Finance 1981 ZLR 571 (S) at 580.

If the words used are precise and unambiguous, then, no more is necessary than to expound them in their natural and ordinary sense: see The Sussex Peerage (1843-1845) 65 RR 11 at 55.

In essence, it is necessary to have regard to the words used and not to depart from their literal and grammatical meaning unless this leads to such an absurdity that the Legislature could not have contemplated it.”

Constitutional interpretation, however, often requires more than simply according words their literal or ordinary grammatical meaning. Various decided cases have also stressed the need for a generous and purposive interpretation to give expression to the underlying values of the Constitution.

In S v Makwanyane 1995 6 BCLR 665 (CC) the Constitutional Court of South Africa also stated, that, the provisions of the Constitution should not be construed in isolation but in their context.

It is permissible to have regard to the purpose and background of the legislation.

The court cited with approval remarks in Jaga v Donges N.O. and Another 1950 (4) SA 653 A…, that:

“Certainly no less important than the oft repeated statement that the words and expressions used in a statute must be interpreted according to their ordinary meaning is the statement that they must be interpreted in the light of their context.

But, it may be useful to stress two points in relation to the application of this principle.

The first is that 'the context' as here used is not limited to the language of the rest of the statute regarded as throwing light of a dictionary kind on the part to be interpreted. Often of more importance is the matter of the statute, its apparent scope and purpose, and, within limits, its background.”

A further consideration in the interpretation of a statute is that the legislature is presumed not to intend an absurdity, ambiguity, or repugnancy to arise out of the grammatical and ordinary meaning of the words it uses in an enactment.

Therefore, in order to ascertain the true purpose and intent of the legislature, regard is to be had, not only to the literal meaning of the words, but, also to their practical effect.

In this respect, the words in question must be capable of an interpretation that is consistent with the rest of the instrument in which the words appear.

In interpreting the provisions of the Constitution, it is, as stated, necessary to adopt a broad and generous approach and also to ensure that all the relevant provisions on the subject are considered.

As stated in Attorney-General v Dow (1992) BLR 119 (CA)…,:

“…, the very nature of a Constitution requires that a broad and generous approach be adopted in the interpretation of its provisions; that all the relevant provisions bearing on the subject for interpretation be considered together as a whole in order to effect the objective of the Constitution.”

Indeed, section 46 of our Constitution, which deals with the interpretation of Chapter 4, makes it clear, that, such interpretation must pay due regard to all the provisions of the Constitution, and, in particular, the principles and objectives set out in Chapter 2.

Section 331 of the Constitution, in turn, provides that section 46 of the Constitution applies, with any necessary changes, to the interpretation of the rest of the Constitution.

APPEAL AGAINST AN ORDER OF CONSTITUTIONAL VALIDITY – TO WHICH COURT DOES IT LIE

The Constitutional Court Rules 2016, in Rule 21, make provision for the matters that do not require the leave of the court. These include “appeals in terms of section 175(3) of the Constitution, against an order concerning the constitutional validity or invalidity of any law.”

It is apparent that the framers of the Rules considered that even an order of constitutional validity could be the subject of an appeal directly to the Constitutional Court and that leave to appeal was not necessary in such a case.

One must, I think, accept that the ordinary literal and grammatical interpretation of section 175(1) of the Constitution is that an order concerning the Constitutional invalidity of any law has no force or effect unless confirmed by the Constitutional Court. In my view, such an interpretation is in accord with section 169(3) of the Constitution which makes it clear that the Constitutional Court must confirm any order of constitutional invalidity made by another court before that order has any force.

The real question, as already noted, is: which court should hear and determine an appeal against an order of constitutional validity?

The Constitution has not, itself, stated to which court such an appeal shall lie.

It should also be accepted, that, in general, appeals from the High Court lie with the Supreme Court.

Section 169(3) of the Constitution, however, makes it abundantly clear, that, the Constitutional Court makes the final decision whether an Act of Parliament is constitutional.

It does not state that the Constitutional Court only makes the final decision on whether an Act of Parliament is invalid.

The clear intention that comes out from a careful reading of that section is that it is the Constitutional Court that makes the final decision on whether an Act of Parliament is constitutional or not. That means the Constitutional Court makes the final decision whether an Act of Parliament is valid or not.

In the event that an order of constitutional invalidity is made by a lower court, such an order has no effect until the Constitutional Court has confirmed such invalidity.

Section 175(3) of the Constitution provides, that, an interested person may appeal or apply directly to the Constitutional Court to confirm or vary an order concerning constitutional validity by a court in terms of subsection (1).

Whilst the subsection refers to subsection (1), it also refers to “an order concerning constitutional validity” – and not only constitutional invalidity.

An order concerning constitutional validity is exactly that. It is not limited to orders concerning constitutional invalidity only.

Taken together, therefore, sections 169(3) and 175(3) of the Constitution simply mean that an order of constitutional validity or invalidity may be appealed against directly to the Constitutional Court.

Bearing in mind that only the Constitutional Court makes the final decision on the validity of an Act of Parliament, it could not have been the intention of the legislature that an order concerning constitutional validity be the subject of an appeal to the Supreme Court in the normal way for the reason that the Supreme Court does not make the final decision on whether or not an Act of Parliament is valid.

Only the Constitutional Court has that jurisdiction.

In any event, the submission that an appeal against an order of constitutional validity should lie to the Supreme Court and not the Constitutional Court would result in a patent absurdity.

The Supreme Court is an Appellate Court and does not, itself, deal with matters at first instance. It does not itself declare, at first instance, an Act of Parliament to be valid or invalid.

Its powers, in terms of section 22 of the Supreme Court Act, are to confirm, vary, amend, or substitute the order appealed against. If it amends the order of the lower court, that amended order becomes the order of the lower court. Similarly, where it substitutes an order, that order becomes the order of the lower court.

In this case, the High court made an order that the impugned Act, the Presidential Powers (Temporary Measures) Act, was valid and constitutional.

The appellant wants this order set aside and replaced with an order declaring the Presidential Powers (Temporary Measures) Act unconstitutional.

Assuming, arguendo, that the Supreme Court were to agree with the appellant and grant the order substituting the order of the court a quo with one of constitutional invalidity, the Supreme Court would not itself have the power to refer the order to the Constitutional Court for confirmation. The order substituting the judgment of the High Court with one of invalidity would become a judgment of the High Court itself, to be actioned by that court.

The record would have to be returned to the High Court.

The High Court would, thereafter, refer the order of constitutional invalidity to the Constitutional Court for confirmation.

Such a process would be convoluted and unnecessary. An appeal from an order of constitutional validity directly to the Constitutional Court would resolve the issue of validity or invalidity once and for all.

Subsection (3) of section 175 of the Constitution could have been more elegantly worded to obviate possible confusion as to its interpretation.

It is garbled. Its gibberish.

Taking into account their ordinary signification, the words used in the subsection create uncertainty as to the real intention of the Legislature as regards appeals against orders concerning constitutional validity, which, no doubt, would include both orders of constitutional validity and invalidity.

One can understand a situation where a person with sufficient interest applies directly to the Constitutional Court to confirm an order of constitutional invalidity so that the order has force. It is, however, difficult to imagine an interested person appealing directly to the Constitutional Court to confirm an order, presumably made in its favour.

An interested person would, surely, appeal directly to the Constitutional Court to have an order either of constitutional validity or invalidity set aside and substituted with one to the contrary.

In the final analysis, however, it seems to me that the intention of the legislature was that appeals against both constitutional validity and invalidity be determined by the Constitutional Court, which has the jurisdiction to make the final decision in this regard.

Consequently, the appeal noted to this Court is invalid, and, for that reason, the matter ought to be struck off the roll.

For the sake of clarity, it must be stressed, that, it is the order of constitutional validity or invalidity which may be appealed directly to the Constitutional Court for that court “to confirm or vary” the order.

The right to appeal directly to the Constitutional Court does not apply to orders made in respect of other constitutional matters in which the Constitutional Court exercises concurrent jurisdiction with the other courts established under the Constitution.

In view of the above conclusion, it becomes unnecessary to consider the issue whether or not the Presidential Powers (Temporary Measures) Act is constitutional or not.

COSTS

The question whether an appeal lies to the Supreme Court from an order of constitutional validity is one that has hitherto not come before this Court. It is a question that was, at worst, moot.

In the circumstances, an order that each party bears its own costs would appear to me to be the most appropriate.

DISPOSITION

The order of constitutional validity should have been the subject of an appeal directly to the Constitutional Court and not to this Court. The appeal filed with this Court is, therefore, irregular and a nullity. The matter ought therefore to be struck off the roll.

In the result, the following order is made:

The matter is struck off the roll with each party paying its own costs.

SC86-14 : W. CHOMUREMA and E. MUZOKOMBA vs TELONE
Ruled By: GWAUNZA JA

In chambers in terms of Rule 5 of the Rules of the Supreme Court 1964.

The applicants are appearing before a judge of this Court for the third time, their earlier applications having been dismissed on procedural grounds.

Essentially, in this, and the previous two applications, the applicants are requesting this Court to give to them leave, which they perceive to have been denied by the Labour Court, to file a belated appeal against their dismissal from employment with the respondent.

In this quest, the two have made tracks back and forth between the Labour Court and this Court, with the result that the matter is now hopelessly entangled in procedural niceties.

It became evident to me that this 'tangle' had to be unravelled first before a way forward could be ascertained. This is particularly so given that the legally unrepresented, but determined, applicants are pressing to have their day in court, albeit, they complicated matters further by filing lengthy and repetitive submissions with each application they brought before both the courts.

Accordingly, after hearing the parties, and, in order to enable me to properly determine the matter, I directed them to re-construct the record and arrange all the applications, and other papers, in the order they had been filed. I indicated I would then peruse the record and give any directions that may be necessary to unlock the process and have the matter move forward.

This would, at the same time, point the applicants to any options that may be open to them in terms of the way forward.

Chronicled below, in conveniently numbered paragraphs, are the relevant facts of the matter, as well as the sequence of events, in so far as I have been able to make them out. I have interspersed the narration/analysis with relevant observations or findings of my own;

1. The applicants are former employees of the respondent; they were dismissed on misconduct charges of theft and fraud in 2009.

2. Having unsuccessfully pursued all internal remedies for redress, they appealed to the Labour Court, on the 30th of October 2009 against their dismissal. In a detailed judgment, the Labour Court dismissed the appeal having found that the two had been properly charged, convicted, and dismissed.

3. The two resolved to appeal to this court but failed to apply to the Labour Court for leave to appeal within the 30-day period which is stipulated in that court's rules.

This, in my view, is where their problems started.3. The two resolved to appeal to this court but failed to apply to the Labour Court for leave to appeal within the 30-day period which is stipulated in that court's rules.

This, in my view, is where their problems started.

4. On the 16th of March 2010, some sixty-six days beyond the stipulated time limits, the applicants filed an application in the Labour Court titled “APPLICATION FOR LEAVE TO APPEAL TO THE SUPREME COURT.”

The relief sought, according to their draft order, mirrored the same title.

A look at the founding affidavit shows that the applicants appreciated the fact that their application would be filed out of time, and that, therefore, they would need to secure condonation of the late filing of the application.

This is evidenced by paragraph (viii) of the founding affidavit, which reads as follows;

“I humbly urge this Honourable Court to condone the delay in this application for leave to appeal to the Supreme Court on the basis that:

(i) I travelled to my rural home ending up in too much delay of noting an appeal (sic).

(ii) As a self-actor, I took too long to find the Labour Court Rules that I can prepare my application.” (sic)

The request for condonation, apart from not being reflected in the title of the application, was, in addition, not incorporated into the draft order.

As indicated later in this judgment, the Judge a quo took the view, that, no application for condonation was before the court.

5. Nevertheless, the Judge issued the following order on the 23rd of June 2010;

“The application for leave to appeal to the Supreme Court be and is hereby denied on the basis that it was out of time and the reason for the delay was not a reasonable one.”…,.

I find this order to be incomprehensible in a number of respects;

(a) Having taken the view that there was no proper application for condonation of the late application for leave to appeal to the Supreme Court, it is not clear why or how the court could have proceeded to 'dismiss' the application for leave to appeal to the Supreme Court.

(b) The reasons given for the 'dismissal' of the application for leave to appeal to the Supreme Court are reasons properly associated with an application for condonation of failure to comply with the rules of the court;

(c) While the reasons might have suggested that the Labour Court had in fact entertained an application for condonation of the late filing of the application for leave to appeal, the court dispelled this notion by specifically stating in its order, that, it had dismissed the application for leave to appeal to the Supreme Court; and

(d) Even were it to be taken that the court entertained the application for condonation, the absence of an order specifically granting such condonation establishes otherwise.

6. What is evident, though, is that the Labour Court did not consider the merits of the application for leave to appeal to the Supreme Court. Indeed, it could not have properly done so without first condoning the late filing of such an application. The applicants were barred, and, at that point in time, out of court.

The applicants should have filed a composite application;

(a) For condonation of the late filing of the application for leave to appeal; and

(b) For leave to appeal to the Supreme Court.

Because they did not do so, the application for leave to appeal to the Supreme Court was not properly before the Labour Court.

7. I am of the firm view, that, instead of dismissing the application for leave to appeal to the Supreme Court for the reasons it gave, the Labour Court should have properly struck the application off the roll.

It is also my opinion, that, since a court cannot dismiss what is not before it, the Labour Court's order of 23 June 2010, was incompetent.

8. Had the Labour Court struck the matter of the roll, the applicants would most likely have been alerted to the need to file a proper application with the same court, for condonation, together with one for leave to appeal to the Supreme Court.

9. As this did not happen, the applicants, who felt aggrieved by the decision 'dismissing' their application for leave to appeal, and had no reason to believe the order to be incompetent, mistakenly, but understandably (being legally unrepresented), filed a chamber application before this court on the 19th of July 2010, under case number SC175/10.

They sought the leave of a Judge to appeal to it (purportedly) in terms of section 92F(3) of the Labour Court Act (“the Act”).

10. The application was dismissed in chambers by GARWE JA on the 14th of December 2010, without considering the merits thereof. This was on the basis, that, this Court could not consider the application for leave to appeal to it before:

(i) Condonation for the late filing of that application in the Labour Court had been obtained; and

(ii) The leave of the Labour Court had been properly sought and denied.

11. After the dismissal of their application by a Judge of this Court, significantly, not on the merits, as indicated in paragraph 9, the applicants approached the Labour Court on the 21st of December 2010 and filed a composite application for -

(i) Condonation of the late filing of the application for leave to appeal to the Supreme Court against the Labour Court's order of 30 October 2009; and

(ii) Leave to appeal to the Supreme Court.

12. On the 21st of February 2011, the Labour Court made a ruling that it could not 'plough the same road' as it had already made a decision on that particular issue. It made the following order;

“1. The Court has dealt with the application for leave to appeal and dismissed it on 23 June 2010;

2. The court is thus functus officio and must dismiss the present application;

3. The application is accordingly dismissed.”…,.

13. It is my considered view, based on the foregoing analysis, that the Labour Court was misguided in its view that it had already heard and determined the application for leave to appeal to this Court. As stated above, and despite the wording of its order of 23 June 2010, the court had NOT properly heard nor determined the application for leave to appeal against its decision of 30 October 2009.

14. In stating this, I am fully cognisant of the fact, that, I am not sitting as an Appeal Court to consider this matter.

Accordingly, as a single judge in chambers, I cannot make, and indeed, should not be taken to be making, a final pronunciation on the matter.

Such a task would properly be within the preview of an appeal bench of this Court.

With this in mind, I nevertheless hazard to express the view, that, contrary to its finding, the Labour Court was, in effect, not functus officio and should properly have entertained the application filed by the applicants on 21 December 2010.

It seems to me, that, the Labour Court judge failed to appreciate the fact, that, the applicant's seemingly repeated filing of the same application was traceable, in part, to the court's failure from the onset (i.e. 16 March, 2010) to indicate to the applicants (by striking the matter off the roll) that they could not apply to it for leave to appeal to the Supreme Court without first seeking its condonation of the late filing of such application.

That the court fully appreciated that this was the correct sequence of events to be followed, is evident from the following observations contained in the judge's reasons for the decision in the question;

“The reason (for dismissing the application of 21 December 2010, for condonation and for leave to appeal) are that on 23 June 2010 an application for leave to appeal was dismissed because it was filed out of time. At that time, no application for condonation was made….,.

The two applications that were filed sought to resuscitate a matter that had been dealt with to finality - at least before this Court. Should I condone the application for leave that has already been denied? I could not consider the second application for leave to appeal because I had already denied it. It was water under the bridge. I could not deal with the application because it was ill timed. It ought to have preceded the first application for leave which I had already dismissed.”

15. A couple of pertinent observations can be made from this rather unclear reasoning.

(i) Firstly, the judge a quo properly realised that the first application by the appellants needed to be preceded by an application for condonation of its late filing. The learned judge, however, then fell into the error of not fully appreciating the implication of this default vis a vis the application for leave to appeal to the Supreme Court.

This was that, absent an application for condonation of late filing of the application for leave to appeal, there was nothing before the court to dismiss.

The later application could not stand on its own, being premised on nothing.

(ii) Secondly, since the dismissal in question was, in my view, incompetent, there would have been nothing to prevent the court from hearing the two applications.

Thus, nothing was dealt with 'to finality'.

16. Be that as it may, the applicants did not, as they may have done, take the requisite steps to appeal to this Court against the Labour Court's finding that;

(i) It was functus officio; and

(ii) That, it had already dealt with the application for leave to appeal to the Supreme Court.

17. The applicants, instead, came back to this court seeking an order for leave to appeal against the court a quo's decision on the main dispute.

18. Needless to say, this application was repetitive and therefore improper.

The ground upon which the first application had been dismissed, that is, absence of condonation by the Labour Court, was still in point.

19. The application was heard and dismissed by GARWE JA on 17 November 2011. As a mark of its displeasure, this Court ordered that the applicants pay costs on the higher scale.

20. To the extent that this court had earlier dismissed the same application, albeit, and also without considering the merits, it could have been argued that the matter was res judicata and that this court was functus officio.

The judge, however, did not make a pronouncement nor issue an order to this effect.

21. The appellants apparently felt they could still pursue the dispute, and, in a manner suggestive of their now being totally confused and entangled in a true web of procedural technicalities, the relentless applicants went back to the Labour Court on 7 December 2011 and filed an application with this somewhat confusing title;

“CHAMBER APPLICATION FOR CONDONATION FOR LATE FILING OF AN APPLICATION FOR LEAVE TO APPEAL AGAINST THE DENIAL OF CONDONATION AND APPLICATION FOR LEAVE TO APPEAL AGAINST THE DENIAL OF CONDONATION FOR LEAVE TO APPEAL TO THE SUPREME COURT”

What immediately becomes evident from this title is the fact, that, the application in question was premised on the view, that, an application for condonation of the late filing of an application for leave to appeal to the Supreme Court had been heard and refused by the Labour Court.

The opposite was in fact the case.

The learned judge, in the excerpt from her judgment that is cited in paragraph 14 above, made it very clear why she was not going to entertain such an application. Nor did she, in the end, do so.

The application was therefore misguided.

22. Having, again, found no satisfaction from the Labour Court, the applicants have now, yet again, approached this Court with this application, which is no less misguided than the last one they made before the Labour Court (see above).

The application brings nothing new to this Court unless it is to demonstrate the applicants sheer determination to pursue the matter to what they perceive to be its logical conclusion - whatever pitfalls may stand in their way.

As this Court has entertained the same matter several times, it is my view, that, the court is now functus officio.

The dispute has gone round in circles for a period of over five years and there must be finality to litigation.

The application now before me is, in any case, not sustainable in its current form.

Accordingly, the application is dismissed with costs.

HMT02-19 : RUBEN ZIMONDI vs SECRETARY PUBLIC SERVICE COMMISSION and GENERAL COMMISSIONER OF THE PRISONS AND CORRECTIONAL SERVICE and MINISTER OF JUSTICE, LEGAL AND PARLIAMENTARY AFFAIRS and PRESIDENT OF ZIMBABWE
Ruled By: MUZENDA J

On the 4th July 2018, the applicant (Ruben Zimondi) filed an application seeking the following relief:“IT IS ORDERED THAT:1. It is declared that the discharge of the applicant herein, wherein he held the rank of Superintendent, be and is hereby declared unlawful.2. The 1st respondent be and is hereby ordered ...

On the 4th July 2018, the applicant (Ruben Zimondi) filed an application seeking the following relief:

“IT IS ORDERED THAT:

1. It is declared that the discharge of the applicant herein, wherein he held the rank of Superintendent, be and is hereby declared unlawful.

2. The 1st respondent be and is hereby ordered to entertain the applicant's appeal lodged on 12 February 2015 within twenty one (21) days of this order being granted.

3. The respondents to pay costs of suit jointly and severally, the one paying the other to be absolved.”

Facts

On or about December 2014, the applicant was charged with contravening section 3(46) of the Prisons (Staff) (Discipline) Regulations 1984. It was alleged, that, at Mutare Farm senior officers Mess, the applicant, being a member of the service, did wrongfully and unlawfully utter despicable words against the first lady, Dr Grace Mugabe, saying “Ma problems ese arikuitika mumusangano anokonzereswa nembwa inonzi Dr Grace Mugabe asi isu musangano tinouda.”

This was against the discipline - especially of a commissioned officer.

The disciplinary hearing was conducted in January 2015 in terms of section 10(1) and (11) of the Prisons (Staff) (Discipline) Regulations 1984.

The applicant was found guilty and discharged from service.

He filed an application for review to the Commissioner in terms of section 22(1) of the Prisons (Staff) (Discipline) Regulations 1984. The Commissioner confirmed the Board's decision and dismissed the application for review.

The applicant did not rest, he appealed to the Public Service Commission in terms of section 22(4) of the Prisons (Staff) (Discipline) Regulations 1984.

The Public Service Commission refused to entertain the appeal citing lack of jurisdiction and the relevant portion of the letter of 17 March 2015, addressed to the applicant's legal practitioners, reads as follows:

“It has been noted that you were engaged as a Commissioned officer at the rank of Superintendent in the Zimbabwe Prisons and Correctional Services. In terms of section 9(1)(e) of the Prisons Act (Chapter 7:11) the President may reprimand, suspend, reduce rank or discharge any Commissioned officer. The Prisons and Correctional Service does not have the jurisdiction to preside over cases involving Commissioned officers.

This rests your case with us. Please be guided accordingly.”

The applicant genuinely believes that the Public Service Commission has the jurisdiction to entertain the appeal made in terms of section 22(4) of the Prisons (Staff) (Discipline) Regulations 1984. However, up to now, the first respondent has failed to hear the appeal hence this application.

The application is opposed.

In the opposing papers, the first respondent raises a preliminary point premised upon the citation of the first respondent.

According to the respondents, the first respondent does not, and has no jurisdiction to determine the applicant's appeal in her capacity as Secretary of the Public Service Commission.

The Public Service Commission, she argues, is a separate legal entity to the Prisons and Correctional Services Commission. The Secretary, Public Service Commission acts as the Secretary to the Prisons and Correctional Services is incorrectly cited as she does not represent the Commission, the applicant ought to have cited the Chairperson to the Prisons and Correctional Services Commission.

Further, the first respondent does not deal with appeals in her official capacity, and, as such, she is incorrectly cited....,.

Counsel for the first respondent submitted, that, the improper citation of a party renders the application void.

Counsel for the first respondent cited the matter of Matida v Chairman, PSC and Anor 1998 (1) ZLR 507 (H): ADAM J…, had this to say relating to the citation:

“Now, that court application, firstly, cites the Chairman of the Public Service Commission as the first respondent. Yet, the annexure to the founding affidavit gives the Public Service Commission as the decision maker. The wrong party has been cited. Rule 256 surely is concerned with the decision or proceedings of the legal persona, be that an inferior court, tribunal, board or officer. This means it is that legal persona whose decision or proceeding has to be reviewed that must be cited and the application must be directed and delivered, in the case of the tribunal or board, to the Chairman of that body: see in this regard Maxwebo v Chairman, Public Service Commission HH125-97 at p6-7 where SMITH J said:

'Before concluding, I wish to make an observation on the party cited as respondent. The Chairman of the Public Service Commission was so cited. Although exception was not taken there, I considered that it was improper to cite him as respondent. Section 74 of the Constitution establishes the Public Service Commission which consists of the Chairman and not less than two and not more than seven other members.

Any findings, rulings or decisions of the Public Service Commission are those of the body and not of the Chairman.

Accordingly, the Chairman of the Public Service Commission cannot do anything in the name of the Commission if the majority of members do not agree with him.

The distinction is illustrated by the order sought by the applicant.

The draft order states that the respondent's decision to find the applicant guilty of misconduct should be set aside. However, the findings of guilty was not a decision of the respondent. It was a decision of the Public Service Commission.

I therefore consider that it was improper to cite the Chairman as respondent. The Public Service Commission should have been cited as the respondent.'”

In the case of City Bolts (Pvt) Ltd v Workers Committee SC16-12, GARWE JA.., ruled as follows:

“At the hearing of this matter, it appeared to this court, that, the respondent, simply cited as 'Workers Committee' was not a legal persona capable of being sued. Accordingly, both counsel were asked to address the court on the matter. Both counsel accepted, that, the respondent, which is a Workers Committee appointed by workers of the appellant company, is not a legal persona and cannot therefore be sued.”

The applicant improperly cited the Secretary as the first respondent instead of citing the Public Service Commission. That was a fundamental error and the preliminary point finds favour with this court, and, accordingly, the point in limine is upheld and the application is dismissed with costs.

It is so ordered.

HMT08-19 : STELLA MASUNGA vs FORWARD KAPIYA
Ruled By: MWAYERA J and MUZENDA J

On 23 July 2018, Mr Forward Kapiya (the respondent) of Stand 254 Headlands Location issued summons at Rusape Magistrate's Court against the appellant, Stella Masunga, where he was seeking eviction of the appellant from a commercial Stand No.193, Headlands known as Kapiya General Dealer.

In the summons, he averred that the appellant was his ex-wife and he had since separated with her, and, since she was then co-habiting with other men, she ought to move out of the property.

The defendant filed her appearance to defend, and, on 3 August 2018 she filed her plea. In her plea she contended that the respondent herein was not the owner of the property. She is the one who bought Stand 193 in 2004 and started constructing it alone before customarily marrying the respondent in 2006.

When she married the respondent, in 2006, the shop was about to be roofed.

In 2010, she admitted changing the name from her name to that of the respondent since the respondent was going to marry her. When the appellant changed the names, she did not know that the respondent wanted to grab her shop.

On 12 September 2018, the matter proceeded to trial and both parties led evidence to prove their cases and called witnesses.

After hearing, the court granted eviction against the appellant and ordered her to vacate the premises by 31 December 2018. The order was granted on 19 November 2018.

On 30 November 2018, the appellant noted an appeal against the whole judgment of the magistrate and outlined the grounds of appeal as follows:

“1. The learned Magistrate erred in ordering the eviction of the appellant by 31 December 2018 on Stand No.193 Headlands, despite the following:

(a) The Stand in question belongs to the appellant.

(b) That responsible authority, which is in Makoni Rural District Council, through its representative, Fungai Misi, having been given subpoena, confirmed that appellant is the one who had purchased the said Stand.

2. The learned Magistrate misdirected herself by failing to appreciate the evidence of the responsible authority to the effect that the Stand is registered in appellant's name.

3. The learned magistrate erred and misdirected herself by failing to consider the evidence of the responsible authority to the effect that indeed there was an attempt to do a cession but that was not done because there were issues which needed to be ironed out first.

4. The court failed to appreciate that indeed appellant has a clear right over the Stand hence could not be evicted.

5. The court failed to appreciate that respondent was lying and sought to rely on his evidence.

6. The court erred and misdirected itself in relying with the evidence of a brick moulder.

7. The judgment imposed by the trial magistrate is shocking and should be set aside.

WHEREFORE appellant prays that an order for eviction imposed by the trial magistrate be set aside with costs that she be allowed to carry out her business as the owner of Stand 193 Headlands.”

I have cited the prayer of the appellant to show that it is defective. However, we condoned that defect in the interests of justice and allowed the appellant to argue its appeal.

For the record, the prayer in an appeal should be framed as follows:

“(a) The appeal is upheld with costs.

(b) The judgment of the court a quo is set aside and substituted by the following:

The claim for eviction of the defendant from Stand 193 Headlands is dismissed with costs.”

HMT45-19 : JAMES DRYNAN vs MAGISTRATE N. N KUTURE and ZIMBABWE NATIONAL ROADS ADMINISTRATION
Ruled By: MUZENDA J

On 18 September 2018, the applicant filed a court application for review seeking the following relief spelt out in the draft order:

“1. The decision of the first respondent in which she made an order for the rescission of default judgment in court case number 127/18 in favour of second respondent be and is set aside.

2. The application of second respondent for rescission of default judgment be remitted for rehearing before a different magistrate.”

On 28 September 2018, the second respondent filed its opposing papers.

BACKGROUND

On 5 February, the applicant initiated summons at the Magistrates Court claiming US$651 from the second respondent, the Zimbabwe National Roads Administration.

The applicant, on 21 May 2013, attempted to receive an exemption over a number of his motor vehicles from Zimbabwe National Roads Administration for the period extending 1 June 2013 to 31 May 2014.

The Zimbabwe National Roads Administration officials demanded a letter from a commercial garage certifying such automobiles inoperative for a specified period.

From 2013 to 2018, a number of correspondences took place between the applicant and the second respondent.

In January 2018, the applicant was told, by the Zimbabwe National Roads Administration, to pay a total of $696 licencing penalty and penalty fees up to 30 April 2018.

The applicant admitted to pay $45 but resolved to claim $651, being the difference between $699 and $45, which amount he argued was excessive and unjustified in his view.

On 25 February 2018, a default judgment was granted in favour of the applicant.

On 12 March 2018, the Zimbabwe National Roads Administration filed an application for rescission of judgment.

The second respondent also filed, on the same date, an ex parte application for stay of execution.

On 26 March 2018, the applicant filed his opposing papers for the rescission of judgment as well as stay of execution.

On 13 July 2018, the magistrate, the first respondent in this application, heard the application for rescission and stay and deferred her ruling to 27 July 2018.

It is common cause, that, both applications, for rescission and stay of execution, were granted.

The second respondent was given leave by the magistrate to file a notice of appearance to defend. It filed it, and, then, proceeded to file an exception to the current applicant's summons.

Meanwhile, the applicant embarked on a vitriolic attack of the judicial officer, the magistrate, through writing of letters up to the Chief Justice.

When the second respondent caused the exception to be set down for argument, the trial magistrate, recused herself, patently because of the attack by the applicant.

The exception was set down for 11 September 2018 and postponed to 20 September 2018 so that a different magistrate would deal with the matter.

Before the matter could be heard, as already indicated, the applicant filed a court application for review.

Meanwhile, the hearing of the exception was deferred indefinitely until the finalisation of the review application.

On 24 June 2019, I gave the following order, indicating that I would give reasons for that order:

“IT IS ORDERED THAT:

1. Points in limine raised by the 2nd Respondent is upheld.

2. Application for review is dismissed with costs on attorney client scale.”

On the very date, 24 June 2019, the applicant submitted a letter addressed to the Registrar which he wanted to be placed before me raising my attention “on matters which he might have overlooked in an attempt to deal expeditiously with the proceedings before him” to use the applicant's own words.

As a matter of comment, I read the letter, but, at that stage, the court was functus officio. I could not revisit the proceedings.

I opted not reply the letter, serve to mention, that, the very points raised by the applicant had been extensively covered by the applicant in a document he produced in court.

I had read the document, and, in principle, covered the chronicle of what has built up in the matter before the application.

I wonder why the applicant assumed that I had not appreciated what he had submitted, but, presumably because I had dismissed his application, he thought that I had missed the point.

I had not, and, the following are my reasons for upholding the second respondent's preliminary points.

The second respondent submitted, that, the application for review is fatally defective for want of compliance with Order 33 Rule 257 of the High Court Rules of Zimbabwe.

Rule 257 of the High Court Rules provides:

“The Court application shall state, shortly and clearly, the grounds upon the applicant seeks to have the proceedings set aside or corrected and the exact relief prayed for.”

The applicant did not outline these reasons on the application.

They appear in paragraph 70 of his founding affidavit and stretches from paragraph 71 to paragraph 80.

Even assuming that the grounds were stated by the applicant; they are not short and precise, and, maybe the applicant followed Rule 256.

In addition, the exact relief prayed for by the applicant does not appear on the face of the application.

It is peremptory that the provisions of Rule 257 must be complied with, as well spelt out by MAKONI J…, in the matter of Fabiola N. Gonye v Fadzai Mtombeni N.O. and Others HH356-17.

“The import of the above Rule is that an applicant seeking a review must approach this court by way of court application unless it is a proceeding in terms of any other law other than Rule 256. It is incumbent upon such application to state clearly in terms of which law is proceeding under in filing the application for review right at the outset. Where no such clear statement is made in the court application it will be taken that the applicant is proceeding in terms of Rule 256.”

Hence, failure to comply with this Rule constitutes a fatal flaw.

“As regards the failure on the part of Chataura to comply with Rule 257 of the High Court Rules, it seems to me, that, non-compliance would constitute good grounds for dismissing this application. Rule 257 requires that an application to bring proceedings under review shall state shortly and clearly the grounds upon which the applicant seeks to have the proceedings set aside or corrected and the exact relief prayed for. In the Pen Transport, Mushaishi and Marumahoko cases referred to earlier, the courts clearly stated that failure to comply with Rule 257 constituted a fatal flaw. The time has surely come to say enough is enough and to dismiss the defective applications without considering the merits:” see Chataura v Zimbabwe Electricity Supply Authority 2001 (1) ZLR 30 (H) per SMITH J.

In the matter of Dandazi v Wankie Colliery Co. Ltd 2001 (2) ZLR 298 (H) the rationale of compliance with Rule 257 of the High Court Rules was reiterated and the court held:

“At this stage, I wish to make an observation which is relevant to many review applications that are brought to the High Court. In terms of Order 33 Rule 257, it is a requirement that: the court application shall state, shortly and clearly, the grounds upon which the applicant seeks to have the proceedings set aside or corrected and the exact relief prayed for.

This is not an idle requirement.

It was inserted in the rules of the court so that an applicant for review may apply his mind to the grounds upon which he seeks a review and be able to state them clearly and in brief form.

Often, in review applications, all sorts of grounds are lumped together in the body by the founding affidavit making it very difficult for the presiding judicial officer to determine the grounds upon which the matter is to be reviewed.”…,.

This is exactly what the applicant did in this application.

He vehemently argued, that, the grounds for review or relief sought, are part of the affidavit.

I conclude, that, in the light of the above cases cited, that is a gross irregularity; such non-compliance with Rule 257 of the High Court Rules goes to the root of the application, which only can be addressed by dismissing the application.

The applicant's grounds for review is that of bias and irrationality on the ruling of the Magistrate.

Such a ground must equally be stated in the court application: see Dandazi v Wankie Colliery Co. Ltd 2001 (2) ZLR 298 (H).

A failure to do so is a gross irregularity which renders a matter improperly before the court and that is where the court held that:

“If, as in the present case, the grounds are based on bias and gross irregularity in the proceedings, then, those grounds must be stated in the application. A failure to do so, as was the case in this application, is a failure to comply with Order 33 Rule 257. The consequence of that failure is that the matter is not properly before the court and the applicant must not be heard.”…,: see also the matter of Minister of Labour & Others v Pen Transport (Pvt) Ltd 1989 (1) ZLR 293 (S) per GUBBAY JA…,.

I allowed the applicant to make submissions relating to both the points in limine and the merits.

However, having looked at the preliminary points capably addressed by the second respondent, I am of the view, that, the applicant's papers are not in order and the points in limine were accordingly upheld with an order of costs on a punitive scale.

View Appeal
HH661-16 : M COMPANY (PVT) LTD vs ZIMBABWE REVENUE AUTHORITY
Ruled By: KUDYA J

This is an income tax appeal filed in the High Court in terms of section 65 of the Income Tax Act [Chapter 23:06].

The two questions for determination are:

(i) Whether the appeal is valid; and

(ii) Whether the commission paid to two foreign agents for facilitating the sale of tobacco constituted fees for services of a technical, managerial, administrative or consultative nature as contemplated by section 30 of the of the Income Tax Act and the Seventeenth Schedule to the Income Tax Act.

THE BACKGROUND

The appellant, an exporter and seller of processed tobacco from Zimbabwe, is a locally registered company. It entered into two successive sales and marketing agreements with two foreign companies on 1 April 2004 (annexure 1 of respondent's case and p1-2 of appellant's bundle) and 1 April 2011 (annexure 2 of respondent's case and p3-4 of appellant's bundle) respectively, for the sale of export tobacco in foreign markets.

The sales were on commission of 7.5% of the aggregate net export sales and FCA Zimbabwe sales value of each export, respectively.

In 2007, the respondent audited the affairs of the appellant. It decided that the commission paid for the period to 2005 constituted fees for services of a technical and administrative nature performed by the overseas agent on behalf of the appellant for which the appellant was liable for withholding non-resident tax in terms of the Seventeenth Schedule to the Income Tax Act.

On 5 April 2007, the respondent submitted schedules showing the appellant's withholding tax liability on the tobacco sales commissions payable to the overseas agent.

The tax adviser of the appellant objected to the schedules and imposition of withholding tax on the sales commissions.

On 10 August 2007, the respondent disallowed the objection.

A notice of appeal was filed on 24 August 2007.

The appellant's case was not filed within 60 days of the service of the notice of appeal or at all. In accordance with the provisions of section 65(3) of the Income Tax Act, the appeal lapsed.

The appellant continued to remit non-residents withholding tax to the respondent until the advent of the multi-currency era.

On 24 October 2013, officials of the respondent conducted a routine audit visit at the premises of the appellant during which the Finance Director of the appellant indicated that further remittals had stopped in consequence of the unresolved 2007 appeal.

In a further meeting of 5 December 2013, the appellant requested and was provided with a schedule of the non-residents tax on fees payable from January 2009 to October 2013.

The schedules consisted of 11 columns showing the period covered, the amount of commission paid, the withholding tax rate, the witholding tax due, the penalty charged at 100%, the period covered in respect of interest computation, the period of delay in paying, the interest rate, and the amount of tax due.

The principal amount of the non-residents tax on fees due was in the sum of US$4,252,647=57. An equivalent amount was imposed as penalty and a further US$795,988=62 was imposed as interest.

The penalties were later reduced by half leaving the revised total liability of US$5,974,959=97.

The appellant responded to the schedule by way of the objection letter dated 10 December 2013, which was served on the respondent on the same day.

It disputed that the commissions constituted the fees contemplated in section 30 and the Seventeenth Schedule of the Income Tax Act. It undertook to pay the outstanding principal amount in four instalments between 13 December and 20 January 2014. In consequence of the undertaking, the respondent further waived the reduced penalty and interest by e-mail of 19 December 2013.

The appellant, however, paid the principal amount by 20 December 2013.

A meeting was held between the appellant's tax advisers and the respondent on 13 December 2013. The parties appeared to have agreed, in that meeting, that, the objection had been improperly made.

However, the appellant filed a notice of appeal on 25 March 2014 and served it on the respondent on the following day. The appeal was based on the deemed decision arising from the failure to respond to the letter of objection within three months as contemplated by section 62(4) of the Income Tax Act. The parties filed their respective cases on 28 May 2014 and 13 August 2014.

THE PRELIMINARY OBJECTION

The respondent took the point, that, as it did not issue any assessment on the appellant on 5 December 2013 or any other date, the objection of 10 December 2013, and the subsequent notice of appeal of 25 March 2014, was invalid and of no force or effect.

The appellant contended, inter alia, that the appeal was validated by paragraph (y) of the Eleventh Schedule to the Income Tax Act.

Both counsel correctly submitted, that, the 2007 appeal was abandoned by the appellant.

The effect was that the appellant accepted liability for the non-residents tax on fees, which it failed to withhold and remit to the respondent. In addition, it also accepted that the commissions paid during the period prior to August 2007 constituted fees for services of a technical, administrative, managerial or consultative nature.

It was common cause that the 2007 matter was not pending and could not preclude the appellant from objecting, as it did, to liability for failing to remit non-residents tax on fees for the period from January 2009 to October 2013.

The suggestion, in the respondent's pleadings and minutes of meetings, that the present matter could not be objected to on the basis of the 2007 appeal was clearly devoid of any merit.

The Objection of 10 December 2013 (p12 of Rule 11 documents)

The basis for the objection was set out in paragraph 2 of the letter of 10 December 2013. It reads:

"We wish to object to the imposition of withholding tax on sales commissions. The 17th Schedule of the Income Tax Act defines fees as any amount from a source within Zimbabwe payable in respect of any services of a technical, managerial, administrative or consultative nature. The sales commissions paid to agents were for facilitating the sale of tobacco as a result of the sales and marketing services provided by the agent. It is clear that the commission was based on making a sale. Where there was no resultant sale, no commission was paid to the agent. It is therefore our contention that the sales commissions were not in any way technical, managerial, administrative or consultative in nature."

A reading of the whole letter clearly demonstrates that the appellant did not object to an assessment.

The averments in paragraph 3 and 4 of the appellant's case, to the extent that they declare that the appellant "duly objected to the said assessment" were not based on the letter of objection. In my view, the appellant merely objected to the decision of the Commissioner that the commissions constituted the type of fees contemplated by section 30 and the Seventeenth Schedule of the Income Tax Act.

The Legislative Provisions

In terms of section 65(4) of the Income Tax Act, both the High Court and Special Court are obliged to confine their decision to the grounds stated in the notice of objection unless leave, based on good cause shown, or agreement of the parties, has been granted to the appellant to rely on other grounds.

In the present matter, no such leave was sought nor granted.

It is therefore unnecessary for me to decide the issues that were raised and ventilated concerning assessments, notices of assessment, and estoppel.

A taxpayer is entitled to object, inter alia, to any written decision of the Commissioner mentioned in the Eleventh Schedule in terms of section 62(1)(b) of the Income Tax Act, which states:

"(1) Any taxpayer who is aggrieved by -

(b) Any decision of the Commissioner mentioned in the Eleventh Schedule;

"may, unless it is otherwise provided in this Act, object to such…, decision…, within thirty days after the date of the…, written notification of the decision…, in the manner and under the terms prescribed by this Act:"

The Eleventh Schedule

Paragraph (y) of the Eleventh Schedule prescribes the decisions of the Commissioner that may be subjected to objection and appeal. In relevant, it reads:

"The decisions of the Commissioner to which any person may object under paragraph (b) of subsection (1) of section sixty-two are those made in terms of —

(y) The provisions of the Seventeenth Schedule, where the determination relates to —

(i) Whether or not any amounts are fees for the purposes of that Schedule;"

In the present matter, neither the appellant in its bundle of documents, nor the respondent in the Rule 11 documents, produced the written notification of the decision on which the letter of objection was based. The letter of objection does not indicate when the letter referenced 600/109/108/13 was written and what its contents were. The letter does not indicate whether the decision was verbal or in writing.

I am therefore unable to determine whether the letter of objection complied with the requirements of section 62(1)(b) of the Income Tax Act.

I would be inclined to strike the appeal off the roll for these reasons.

While I acknowledge that the appellant's case was predicated on "an assessment" and not on "any decision" it seems to me that the respondent should have been alerted by the letter of objection that the appellant was appealing against the decision.

I will, for that reason, assume that the requirements of section 62(1)(b) of the Income Tax Act were met.

HH728-17 : C R S (PVT) LTD vs ZIMBABWE REVENUE AUTHORITY
Ruled By: KUDYA J

This is an appeal against the four amended assessments issued by the respondent against the appellant on 23 June 2014 in respect of the four consecutive tax years ended 31 December 2009, 2010, 2011 and 2012.

The real issue for determination posed by these assessments is whether the respondent can tax non-existent income through the deeming provisions of section 98 of the Income Tax Act [Chapter 23:06].

At the commencement of the hearing, counsel for the appellant moved, in accordance with the notice filed of record on 24 August 2015, and served on the respondent on the same date, for the non-suiting of the respondent for failure to file Rule 11 documents.

Counsel for the respondent conceded the failure and sought the Court's indulgence for the respondent to participate in the appeal without the Rule 11 documents. He contended, that, the failure was not prejudicial to the appellant, and, in the alternative, promised to file the documents by the end of business on Friday 18 September 2015 failing which the Court would disregard all the evidence, contentions, and submissions made by the respondent at the appeal hearing.

Rule 11 is found in Part I of the Twelfth Schedule to the Income Tax Act [Chapter 23:06], the rules regulating Income Tax Appeals that are applied in the determination of an appeal under section 65 of the Income Tax Act or any proceedings incidental thereto or connected therewith. It stipulates that:

“The Commissioner shall transmit to the Special Court, together with the agreed case, or with the appellant's case and the Commissioner's case, a certified copy or extract of the assessment in so far as it relates to the assessment made upon the appellant, and also the notice of objection lodged and the notice of appeal, together with any material correspondence related thereto, unless the same have already been included in the statement of facts. A copy of the decision appealed from and of the reasons for the same shall accompany the documents above mentioned.”…,.

In the present case, the parties did not agree on a statement of facts. Rather, each party filed with the Registrar its respective case devoid of any attachments.

In this regard, it was mandatory for the respondent to file a certified copy or extract of each assessment raised against the appellant, the notice of objection, the decision appealed against and the reasons thereof, the notice of appeal, and any material correspondence relating to each assessment together with the Commissioner's case.

There was, and would be no need for the respondent to file the appellant's case with these documents as it was and would always be filed with the Registrar and served on the respondent prior to the filing of the Commissioner's case and its addendums.

In the same vein, it would serve no useful purpose for the respondent to file those Rule 11 documents which would have been attached to either the Appellant's case or the Commissioner's case together with the Commissioner's case.

The Rule 11 documents provide the contextual background to the objection and appeal and represent a “court record of sorts” from which the Appeal Court is able to derive important and material contentions of fact and law.

The failure to file the Rule 11 documents at the required time is not only contemptuous of the Rules of Court but is prejudicial to the appellant in that it deprives the Appeal Court of the material information on which the dispute between the parties is grounded.

In the present appeal, counsel for the appellant acceded to the submission made by counsel for the respondent in the alternative.

The appeal hearing proceeded in the normal way, and, true to his promise, counsel for the respondent filed the Rule 11 documents before the end of business on 18 September 2015.

The respondent is directed to abide by the mandatory requirements of Rule 11 in all future income tax appeals.

HB29-17 : CLAUDIOUS MANAMELA and BRIGHTON NANGA and SAZIWE DUBE and ENOCK MARUME vs COMMISSIONER GENERAL ZIMBABWE REPUBLIC POLICE and OFFICER ON CHARGE NJUBE POLICE STATION and APOSTOLIC FAITH MISSION OF AFRICA
Ruled By: KAMOCHA J

The interim relief sought in this matter was couched in the following fashion:“Pending determination of this matter, the applicant (sic) is granted the following relief:1. All 3rd respondent members are interdicted from barring or blocking any other church member from entering the 3rd respondent premises wherever situated.2. All 3rd respondent ...

HMT53-19 : SHINGIRAI VAMBE vs RUSAPE TOWN COUNCIL
Ruled By: MWAYERA J and MUZENDA J

The appellant instituted summons at Rusape Magistrate Court claiming $5,000 from the respondent being general damages arising from the alleged unlawful destruction of the appellant's temporary structure constructed at No.7688 without a valid court order as well as for harassing the appellant's wife at the latter's work place without the appellant's consent.

After the issuing out of the summons, the appellant served the respondent with various court processes, and, on 9 April 2019, the appellant filed an application for default judgment.

Unfortunately, on 19 April 2019, the learned magistrate dismissed the application.

Un-amused by the dismissal, the appellant noted an appeal on 16 August 2019 outlining the grounds of appeal as follows:

“1. The respondent failed to plead hence the request for default judgment.

2. The learned magistrate erred to take into cognizance the appellant served the respondent with all the papers including the ones he further requested, but, for the second time, he defaulted to submit his plea.

3. The learned magistrate erred in failing to take cognizance that the appellant had stated, in case No. 2030/17 that the demolition of the temporal structure was illegal and it would attract costs.

4. The learned magistrate erred in failing to take into cognizance, that, the appellant applied for an interdict against the respondent in case 2030/17 and (he), the respondent, went further to demolish the appellant's structure without a court order.

5. The learned magistrate failed to consider, that, the appellant was allowed to erect a temporal structure after he had approached the Housing Director for approval.

6. The learned magistrate erred in failing to take into cognizance that no building plan is required in the Model Building By Laws Part 4 section 39 (1, 2, 3 and 4).

7. The learned magistrate erred in failing to take cognizance that the section she quoted from the respondent's papers does not apply to the contract and structure that the appellant had put up, the section consists of enforcement and prohibition orders.

8. The learned magistrate failed to take into cognizance that the respondent had harassed the appellant's wife without any reason to do so, on the matter she was not aware of.

9. The learned magistrate failed to take into cognizance that it was not the respondent's call to demolish the structure without a court order, thus, no need for the appellant to appeal for case no. 2030/17.”

When the respondent was served with the summons, it entered appearance to defend providing its address of service as 294 Chimurenga Street, Box 414 Rusape - its legal practitioners offices.

The appellant filed a notice to plead, and other subsequent pleadings, not on this given address, but, at 398 Manda Avenue Rusape - the Rusape Town Council's Offices.

The subject notice to plead, dated 28 March 2018, which led to the appellant applying for default judgement, was not served on the respondent's address of service but at the Town Council's physical address.

Order 10(3)(b) of the Magistrates Court (Civil) Rules, 2019 SI11 of 2019 provides as follows:

“(b) Subject to subrule (2), given an address for service within a radius of 15km of the courthouse from which the summons was issued, and;”

The operative clause relating to the issue of address of service is identical to the one which was in SI290 of the Magistrate (Civil) Rules, 1980.

Once a party has notified the Clerk of Court of its address of service, the other party shall serve all proceedings, pleadings, or processes on the chosen address.

Service of process, on any other address, other than the chosen address of service provided by the litigant, in my view, will not be in terms of the Rules and will be a nullity: see Order 7 Rule 5(2)(b) of the Magistrates Court (Civil) Rules, 2019…,.

On 9 April 2018, when the appellant filed a request for default judgment, on the basis that the defendant had been duly served and had not submitted its plea, it was not correct.

The appellant had failed to serve the process on the supplied address of service for the respondent, which was Messrs Chiwanza and Partners Legal practitioners, 294 Chimurenga Street. P.O. Box 414 Rusape.

That was the address of service to be used by the respondent, and that was where the Messenger of Court was to serve the process or pleadings.

The appellant did not follow the procedure in the rules of the court a quo and the application for default was not properly before the court; the appellant's papers were not in order, and the learned magistrate ought to have given directions to the appellant to comply with the rules than to dismiss the application on merits.

In doing so, the learned magistrate misdirected herself.

In an application for default judgement, where the plaintiff is claiming damages, as in casu, the plaintiff has to comply with Order 11(4)(5)(a) of the Magistrates Court (Civil) Rules, 2019 which provides:

“5. The Clerk of Court shall refer to the court any request made for the entry of judgment on a claim for damages; and –

(a) The plaintiff shall furnish to the court evidence, either written or oral, of the nature and extent of the damages suffered by him or her;”

See also matter of Mavheya v Mutangiri and Others 1997 (2) ZLR 462…,.

The order of the court a quo, in dismissing the application, was, in my view, not proper in the sense, that, the appellant's claim was prematurely terminated, and, for certain, the appellant did not know the way forward in the circumstances.

In his mind, he believed that the respondent had failed to file its plea within the time expected of it - albeit the wrong method of service of process.

As already ruled above, the court ought to have given the appellant an opportunity to comply with the Rules and resubmit its application in the event that the respondent continued to be in default of filing its plea or other processes....,.

The appeal succeeds on the reasons outlined herein, and the following order is returned:

1. The appeal is upheld.

2. The matter is remitted to the Magistrate Court for continuation before any magistrate.

3. The plaintiff is granted leave to issue a fresh notice to plead in terms of the Magistrate Court Rules and serve it on the defendant at the registered address of service.

4. Costs to be in the cause.

HH125-17 : GRANDWELL HOLDINGS vs ZIMBABWE CONSOLIDATED DIAMOND COMPANY LTD and COMMISSIONER GENERAL, ZIMBABWE REPUBLIC POLICE and MBADA DIAMONDS (PVT) LTD
Ruled By: TSANGA J

In March 2016, the applicant, Grandwell Holdings (Grandwell), which owns a 50% shareholding in Mbada Diamonds [Private] Limited (Mbada), a joint venture initiative for diamond mining in Chiadzwa, obtained an interim order under HC1977/16 (HH193-16).

The other 50% shareholding in Mbada is owned by Marange Resources [Private] Limited (Marange), a Government-owned company.

According to the applicant, the elements of the order which was granted entitled its security personnel, and its entire chain, to return to Chiadzwa in order to safeguard its assets. Among these are said to be diamond ore and unprocessed diamonds that are kept in a vault. The diamond ore, which has been crushed, awaits removal of diamonds.

What is not in dispute is that from March last year, the applicant's security personnel went on site as per the order by the court in HC1977/16.

What has brought the applicants back to court, on an urgent basis, is its allegation that their security personnel at the diamond site have now been removed and that massive looting of their diamond ore has taken place at the instance of the first respondent, Zimbabwe Consolidated Diamond Company Limited (ZCDC), and continues to take place - aided and abetted by the Zimbabwe Republic Police (the police), as the second respondent.

The ore is said to being loaded without any recording or chain of command making it impossible to ascertain what is being taken.

With the core mingling of the diamond ore with that being mined by the Zimbabwe Consolidated Diamond Company Limited (ZCDC), the fear is that it would be impossible to tell which diamonds come from which ore and that therein lies the irreparable harm.

Mbada Diamonds [Private] Limited's security personnel have been sterilised by these actions of ZCDC.

To compound the problem, the Zimbabwe Consolidated Diamond Company Limited (ZCDC) is said to have brought onto the mining site security personnel previously hired by Mbada Diamonds [Private] Limited who know how to open the vault locks. As such, a real fear is that of the diamonds being stolen.

Further, if the ore and the diamonds are taken, an equally real fear is that the pending appeal before the Supreme Court would be rendered nugatory.

Having invested US$100m in Mbada Diamonds [Private] Limited, Grandwell Holdings says it has a real and substantial interest in protecting the interests of Mbada Diamonds and its own investment.

An attempt is said to have been made to file the application on behalf of Mbada Diamonds [Private] Limited, but, it had failed to secure the signatures of representatives on the Board of Mbada Diamonds who represent Marange Resources [Private] Limited.

Grandwell Holdings, being a 50% shareholder in Mbada Diamonds [Private] Limited had therefore brought a derivative action to enforce the rights of Mbada Diamonds and to seek a possessory remedy to restore possession.

The basis upon which Grandwell Holdings says that Mbada Diamonds [Private] Limited has been despoilt is paragraph 7 of the Order that was granted in HC1977/16. The paragraph was couched as follows:

“Paragraph 7

For the purposes of safeguarding assets, all of the fifth respondent's security personnel, with all their chain of command, shall be entitled, authorised, and empowered to remain at the fifth respondent's mining site at Chiadzwa Diamond Concession, as directed in paragraph 2 of the order of this court on 29 February 2016, until the resolution of this matter.”

The police, as second respondents, were said not to have appealed against the order, whilst the Zimbabwe Consolidated Diamond Company Limited (ZCDC) which had indeed appealed, had only done so against the finding that it had committed acts of spoliation.

The appeal was therefore said to be in part, leaving paragraph 7, in essence, extant.

In addition, the fact, that, there was no appeal against the presence of security personnel, as per the court order, which is said to be extant, was said to be supported by the fact, that, for almost a year Mbada Diamonds [Private] Limited's security personnel remained firmly on site even as the appeal was pending.

However, the Zimbabwe Consolidated Diamond Company Limited's position is that any removal that has taken place has been as per the court order and arises from the fact, that, the mining grants which were acknowledged to have expired in the said order of the court have not been renewed.

Spoliation per se is denied.

The police say they are there in terms of their constitutional mandate, in section 219 of the Constitution, to maintain peace and order and safeguard property. They have asserted, that, they cannot be interdicted from carrying out a lawful mandate. Furthermore, their standpoint is that no police report was made regarding any theft to diamonds.

They too, essentially, deny despoiling Mbada Diamonds [Private] Limited.

Points in Limine

Several technical points in limine were raised on behalf of the Zimbabwe Consolidated Diamond Company Limited (ZCDC) and the Commissioner of Police....,.

Counsel for the second respondent queried the certificate of urgency on account of it being dated 9 February when the actual founding affidavit in the matter was only signed on the 10th. He therefore asserted, that, there was no proper application before me on account of the certificate of urgency predating the founding affidavit.

The case of Condurago Investments (Pvt) Ltd v Mutual Finance (Pvt) Limited HH630-15 was cited.

The explanation given in casu by counsel for the applicant for the eventuality that had occurred was that the legal practitioner in question had read the application and completed the certificate of urgency whilst the application itself had had to be mailed to Cape Town as a matter of urgency as that is where the directors of Grandwell Holdings are based.

Furthermore, a supplementary certificate of urgency was filed at the hearing bearing a date that was post the return of the affidavit. The content of the affidavit, as regards urgency, had not in any way changed.

In my view, the explanation given, that the legal practitioner would have had sight of the affidavit before it was dispatched is plausible and would explain why its content, and that of the affidavit, indeed speak to the same exigencies.

Another objection taken to the application is the non-use of the relevant form in the application as required by Rule 241(1) of the High Court Rules 1971.

As stated in the case of Marick Trading (Pvt) Ltd v Old Mutual Life Assurance Company Zimbabwe Ltd and Anor 2015 (2) ZLR…, whilst it is critical for legal practitioners to follow rules, ultimately, it may be in the interests of justice to use Rule 4C which allows a condonation of departure from the rules where the facts permit.

In casu, where, at the heart of the application is spoliation, involving undisclosed though evidently considerable sums of money since diamonds are involved, it would, in my view, be inane to insist on the technicality of a form when this is clearly an instance that calls for the justified use of Rule 4C.

The issue of the certificate of urgency, and the non-use of the relevant form for urgent applications, as modified, is therefore condoned, in this instance, in terms of Rule 4C(a).

HHH531-17 : STATE vs JOHANNES TOMANA
Ruled By: CHITAPI J

“Much ado about nothing.”; 'Storm in a tea cup.'

One cannot find a better phrase to aptly describe the comedy of errors displayed by the National Prosecuting Authority, and, in particular, its Acting Prosecutor General.

An important and serious case involving a high ranking Government and Constitutional appointee in the stead of the Prosecutor General, who is the head of the National Prosecuting Authority, albeit on suspension, was reduced to a huge fuss over a trifle.

Incidentally, William Shakespeare, the great English poet, play-writer, and actor was the author of both comedies 'Much Ado About Nothing' and 'Comedy of Errors.'

The trifle, of course, is the recusal of the judge, myself, from presiding over the accused's trial.

I do not, however, suggest that an application for recusal of a judge is trivia. It arises from the right to a fair hearing by an impartial and independent tribunal.

The trivia arises from the fact, that, it is a simple procedural application which does not go to the resolution of the merits of a case and ought not to derail or delay the due administration of justice.

Ordinarily, an application for recusal of a judicial officer from presiding over a matter placed before him is a routine procedure. Such applications seldom take the form of protracted argument as obtained in this case.

Usually, where parties are legally represented, counsel will discuss the concerns of the party who seeks to have the judicial officer recuse himself/herself beforehand. It should never be a hide and seek game. The party with concerns may, in the process of their discussion, disclose such matters unknown to the other party as would inform the other party of the reasons why he or she believes that a particular judicial officer should not handle the matter.

Normally, counsel will then make a courtesy call upon the judicial officer concerned and the party seeking the recusal will advise the judicial officer of the concerns of his or her client.

The judicial officer may, at that stage, find that the concerns raised ground good cause for recusal. In such a case, the judicial officer will simply agree to the recusal and cause the matter to be allocated to another judicial officer.

The issue, in other words, is dealt with administratively.

Where the judicial officer is not inclined to recuse himself or herself because there is, in his or her opinion, no just cause for the recusal, he or she will direct that formal application is made in open court upon the matter being called. The judicial officer will then make a determination on the application.

Applications for recusal of the judicial officer, where formal application is necessary, are, under the ordinary course of procedure, dealt with summarily.

The judicial officer will pronounce his or her recusal or refuse the motion at the end of argument so that proceedings are not delayed further over who should preside over them.

Regrettably, in this case, I had to reserve judgment because of the conduct of the National Prosecuting Authority and its Acting Prosecutor General; the latter being the culprit or spoiler who sought to throw a monkey wrench in the works, or, put simply, who conducted himself in a manner which was inimical, pernicious, or detrimental to the smooth conduct of proceedings in this matter.

The bungling by the Acting Prosecutor General and his seeming disdain or disrespect for the authority of the court, or myself, necessitated the need to cause a transcription of the proceedings to be prepared for posterity and reference.

Background

The accused person is facing six (6) counts of Criminal Abuse of Duty as a Public Officer as defined in section 174(1)(a) of the Criminal Law (Codification and Reform) Act [Chapter 9:23].

In the alternative, he faces six (6) counts of defeating or obstructing the course of justice in contravention of section 184(1)(b) of the Criminal Law (Codification and Reform) Act.

On 16 November 2016, the accused person was indicted to the High Court for his trial by the Provincial Magistrate in terms of the relevant provisions of sections 65 and 66 of the Criminal Procedure and Evidence Act [Chapter 9:07].

The indictment papers were prepared by or on behalf of the Acting Prosecutor General who signed them.

The Acting Prosecutor General was obliged, in terms of section 66(7) of the Criminal Procedure and Evidence Act to, and did, lodge copies of the indictment papers whose service he caused to be made upon the accused person.

Once indicted or committed to the High Court for trial, the case became deemed as pending trial before this court.

The trial date was fixed as 13 February 2017 by the Acting Prosecutor-General.

It is necessary, at this stage, to note, that, administratively, at the High Court Harare, the National Prosecuting Authority has three criminal trial court rooms allocated to it. There is also another court which exclusively deals with bail applications. There are also two Criminal Appeals Courts devoted to dealing with Criminal Appeals.

These six (6) courts are created for discharge of the prosecutorial mandate of the National Prosecuting Authority as set out in section 258 of the Constitution of Zimbabwe (2013) as read with section 12 of the National Prosecuting Authority Act [Chapter 7:20] and for disposing of bail applications and appeals.

My judgment, however, focuses on the criminal trial courts.

To state the obvious, the criminal trial courts are court A, B and D.

Administratively, the National Prosecuting Authority is the one which sets down its cases in the said courts.

The National Prosecuting Authority prepares the court roll or cause list each High Court term. The National Prosecuting Authority's set down office is based at and operates from its offices.

The question then arises: “How does a judge become seized with a criminal trial?”

The procedure is, that, the administrative head of the High Court, through divisional heads, simply assigns a judge to a particular court for a certain period. A duty roster is prepared and does not depend upon the cases set down by the National Prosecuting Authority in a particular court.

The duty roster is not a secret document, and the National Prosecuting Authority knows before the beginning of each court term as to which judge will be presiding in each of the criminal trial courts.

I have set out the above administrative process to show that the National Prosecuting Authority knew long before the trial date of the accused person that the judge who was presiding in Court A, in which the case was enrolled, was myself.

It was not as if a judge, myself, was specifically assigned by the court administration to deal with the case in casu.

It will therefore be apparent, when I deal with the merits of the recusal application, that, the Acting Prosecutor General must have known who the presiding judge in Court A, in the first term of 2017, was.

By not seeking the recusal of the judge from presiding over the case before the set down, it meant that the National Prosecuting Authority, and its Acting Prosecutor-General, did not have any qualms with the judge whose background and past connection with the National Prosecuting Authority, and the accused, were matters within their peculiar knowledge and largely public knowledge because the fact of the judge having been a past board member of the National Prosecuting Authority was public knowledge. The appointment to the Board was gazetted in the Government Gazette.

It should also be noted, that, the existence of the National Prosecuting Authority Board derives from section 259(10) of the Constitution as read with section 8 of the National Prosecuting Authority Act.

The judge, as is common cause, and, upon a reading of the National Prosecuting Authority Act, was a ministerial appointee who did not owe his appointment to the Prosecutor General or any member of the National Prosecuting Authority as listed in section 4 of the National Prosecuting Act.

The judge, therefore, did not owe any allegiance to the Prosecutor-General but to the National Prosecuting Authority and the State.

Admittedly, whilst the Prosecutor General was, and is, the Board Chairperson of the National Prosecuting Authority, he has no power to appoint or dismiss a Board member.

The relationship between the judge, as a Board member, has to be considered as professional where the duties of Non-Executive Board members are clearly spelt out in the Constitution and the National Prosecuting Authority Act.

In particular, in the exercise of its mandate, the Board would, and was, guided by section 260(1) of the Constitution which guarantees the independence of the Prosecutor General in exercising his or her functions.

Section 259(10) of the Constitution is clear, that, the function of the Board is to employ persons who will assist the Prosecutor General in discharging that office's sanctions.

Section 6 of the National Prosecuting Authority Act reinforces the independence of the Prosecutor General from being subject to the Board.

In short, the Board superintends the human capital side of the National Prosecuting Authority - except for the Prosecutor General.

The issue of the relationship between the Board and the Prosecutor General has to be ventilated, in summary, because, as will become apparent in this judgment, the Acting Prosecutor General raised it as a ground for recusal of the judge, noting that the judge had been a Board member of the National Prosecuting Authority with the accused as Chairperson in his capacity as Prosecutor General.

In other words, the Acting Prosecutor General's view was that the statutory professional relationship between the Prosecutor-General and the judge, as Board member, was good ground for the judge to recuse himself from presiding over the present case.

It is also important to note, at this stage, that, whilst the judge was appointed Board member of the National Prosecuting Authority in or about December 2014, the indictment against the accused person relates to the period 20 October 2009 to 3 June 2010, in respect of the first five (5) counts, and to 29 January 2016 in respect of the sixth or last count.

The judge was not a Board member during the periods mentioned in the indictment.

The National Prosecuting Authority Act was gazetted on 11 July 2014. The Board and National Prosecuting Authority was not in existence by June 2010.

The judge had long been appointed to the High Court bench, on 7 September 2015, by the time the allegations against the accused person of 29 November 2016, in count 6, occurred.

These considerations would have been relevant, and played in the mind of the judge in considering whether he saw or felt cause to unilaterally recuse himself from presiding over the case.

The facts alluded to above were within the knowledge of the National Prosecuting Authority, and, hopefully, its Acting Prosecutor General, before the accused's trial date.

Any other relationship which the judge may have had in interacting with the National Prosecuting Authority and its Prosecutor General, when the judge was still a practising legal practitioner, would have been known by that office.

The question which begs for an answer is: why the National Prosecuting Authority was content to have the judge sit in the matter and only make a turn round after the hearing of the case had commenced and certain orders and directives given.

Is it because the National Prosecuting Authority was expecting a pre-conceived result and became apprehensive that its expectations may flounder?

The timing of the application cannot escape speculation or conjecture as to whether or not it was well meaning and devoid of other extraneous considerations other than the pursuit of fair, just, impartial, and transparent justice deliverance.

Events of 13 February 2017

On the morning of 13 February 2017, the lead prosecutor, Mr Chingwinyiso, made a courtesy call in the judge's chambers with two of his assistant prosecutors and the accused's counsel, Mr Mukweva.

After introducing themselves, I asked the prosecuting team if they were ready to proceed and if the defence team was also ready to proceed.

I was advised that the defence had served the prosecution with an application in court that morning and that the prosecution had not been made aware, beforehand, of this application.

I directed that whatever application it was should be dealt with in court.

I was advised that the lead defence counsel, Advocate Thabani Mpofu, could not come to chambers as he was arranging to postpone another matter.

The rest of what then transpired thereafter is captured on record and the same has been transcribed.

It will be noted, that, I proceeded to court without any hint by the prosecuting team, whatsoever, that my presiding over the trial was an issue.

When the case was called, and after counsel introduced themselves, Mr Mukweva, for the accused person, formally advised the court that Advocate Thabani Mpofu, whom he had instructed to represent the accused person, was still tied up in another court in a civil matter.

The court allowed the defence a brief adjournment for defence counsel to find out the position with Advocate Mpofu on his availability. The court also asked Mr Mukweva whether the trial would be proceeding.

He indicated that the defence intended to make an application which had been prepared and served on the prosecution team in court. He submitted that the application had been served late because counsel prepared it late. Mr Mukweva indicated, that, the application would be made by Advocate Mpofu.

State counsel, Mr Chigwinyiso, raised his objections to how the defence had sought to serve the application in court. He indicated that the application could not be considered as having been served without a return of service in the form of the stamp of the National Prosecuting Authority to evidence that it had been received.

Mr Chigwinyiso sought a deferment of the case to the following day.

The court was not inclined to postpone the case before it was put in the picture of what exactly the application was about and before the issue of the availability of Advocate Mpofu was dealt with.

Before adjourning the case, the court asked counsel whether the application had been filed because there was no copy of the same on record.

Mr Mukweva indicated that he had just had the application issued by the Registrar and had brought all stamped copies to court.

I did not consider that this was proper because the Registrar should have retained the copies of the application for the record.

I directed Mr Mukweva to let the court have copies of the application and he handed, over the Bar, a photocopy of the application on which the name of the accused was inscribed in long hand in the name citation with the originally typed name cancelled on the first page headed: 'Application for Constitutional Relief'.

The next page was the accused's affidavit and there was no alteration to the citation of the parties names.

The next document was the draft order and the typed name “Martin Dinha” in the heading was cancelled and the cancellation initiated or signed for. The accused's name was substituted in long hand where the typed name 'Martin Dinha' had been cancelled.

The court adjourned the case to 11:15am to allow time for State and defence counsels to discuss the application and agree a way forward.

The adjournment of 30 minutes would also afford the court time to read through the application and for Advocate Mpofu to avail himself.

The court also advised counsel that it did not want to let the case be bogged down in “unnecessary technicalities.”

Defence counsel was also ordered to prepare sufficient copies of the application for the court.

When the court resumed, Advocate Mpofu apologized for his delayed attendance and for not timeously placing his intended application before the court and served the State timeously.

He also apologised for the mix up in the name of the accused on the cover of the application.

He handed, over the Bar, a corrected copy of the application.

The substance and content of the application was the same as the one handed over by Mr Mukweva prior to the adjournment.

Advocate Mpofu further submitted, that, the State and defence counsels had liaised over the application and agreed that it be made the following day at 11:30am with the State counsels having undertaken to file their response by 10:00am.

I directed Advocate Mpofu to place on record what the gist of the application was because the court needed to appraise witnesses, and other interested parties, who sat in the court room, of the reason for postponing the matter.

To simply state, that, the case was being postponed for purposes of making an undisclosed application as to its nature or purport would not have been sufficient or proper.

Advocate Mpofu then submitted, that, he would be making an application supported by the accused's affidavit to declare the prosecution of the accused void on account of certain provisions of the Constitution and for alternative relief that the prosecution be stayed pending determination of the constitutional process underway whereby His Excellency, the President of Zimbabwe had invoked the provisions of section 187 of the Constitution.

Section 187 of the Constitution aforesaid deals with the removal from office of judges and applies to the Prosecutor General.

In response, Mr Chigwinyiso introduced a fourth member of his prosecuting team, a Mr Timothy Makoni.

He acknowledged, that, the defence had filed an amended application but submitted, that, what was before the court were just papers because he could not agree that the State had been served with the application until such time that a copy of the application had been served at the offices of the National Prosecuting Authority and its date stamp franked thereon.

He submitted, that, once this formality had been followed, the prosecution would then be able to respond accordingly - possibly by 10:00am.

I asked Mr Chigwinyiso whether, in essence, he was submitting that the State needed time to consider the application.

Mr Chigwinyiso submitted, that, even if the prosecution and the court were in possession of the application, there was still no application until the same had been franked by the National Prosecuting Authority at their offices.

Herein started the comedy of errors, the much ado about nothing or storm in a tea cup.

I ruled that the court did not see any logic in his reasoning and insistence that the application could only be treated as being properly before the court if it was served on the offices of the National Prosecuting Authority and its magic date-stamp franked on it.

I ruled, perhaps to the chagrin of the prosecuting team, that, it had been served with the application and was expected to respond to it and that it would assist the court if a written response was similarly filed.

The court was not referred to any Rule in criminal procedure which requires that a written application objecting to an indictment being tried can only be deemed proper if it has been served at the offices of the National Prosecuting Authority and its stamp franked on the copy served upon the Authority.

Applications to quash an indictment, as was sought in the main by the accused, are made before the accused pleads.

The law, and, in any event, logic and common sense dictates that the State is given reasonable notice of such application.

Sections 170, 171, 178 and 179 of the Criminal Procedure and Evidence Act are instructive.

It just defies logic for the State counsel to admit, that, he has been handed a copy of a filed application but will not recognize it as such until a copy thereof has been served at his Head Office.

Such attitude was farcical.

Notwithstanding the attitude of the prosecutors, I asked whether, in view of the nature of the application, they were content with being given until 10:00am to file a response or they needed more time.

Mr Chigwinyiso then suggested that the State be given until 2:15pm the following day to file its response.

I then agreed to grant the indulgence to 2:15pm.

I then asked the Prosecution team whether there were any witnesses to be warned.

Witnesses Messrs Mabahwama, Uladi, Dube, Sergeant Shumba, Mutsonziwa, and Hove were called into court.

I explained the deliberations which had gone on, the late filing of the defence application, the need for the State to respond in writing thereto, the nature of the application, and the agreement by the State and defence counsel to defer the hearing to the next day.

I confirmed with Mr Chigwinyiso that he could advise the witnesses to avail themselves at short notice.

It was agreed that the witness be discharged from attendance until called, after the determination of the application.

As regards the accused person, the record will indicate that I then said:

“Stand up P.G. I am postponing this case, by consent, to 2:15 tomorrow and you are ordered to appear at that time. Thank you all.”

In referring to the accused person as PG (Prosecutor General) I did not realize, nor anticipate, as I was later to discover, that, I had annoyed or irritated the Acting Prosecutor General to whom the reference was reported.

The developments which followed can only be described, as I have indicated, as a big fuss over a trifle.

The Acting Prosecutor General, perhaps determined to guard his territory of power, decided that the judge, myself, should recuse myself from the case.

It is very important to point out, that, recusals of a judicial officer are an everyday occurrence and occur as part of the judicial function.

But, how did the prosecution go about it?

Events of 14 February 2017

In the morning of 14 February 2017, my administrative head, the Judge President, called me to his chambers.

He handed me a copy of a letter addressed to him by the Acting Prosecutor General. It was copied to the Registrar and to the accused's legal practitioners.

The Judge President advised, that, he was passing on the letter to me because, as the presiding judge, I had to singularly decide on the issues raised and that his passing over the letter to me was all that he considered proper to do.

For the avoidance of doubt, the contents of the letter was as follows (and it is reproduced here because it was not a confidential communication as will be apparent):

“Monday, 13 February 2017

The accused was indicted for trial commencing on 13 February 2017. Prosecution counsel and the accused's instructing legal practitioners appeared in chambers before the learned Justice T H Chitapi, the judge assigned the matter, for a courtesy, and to inform him as to the readiness of the parties to proceed.

The learned judge was informed that the State was ready to proceed and had its witnesses present to testify but had not been furnished with the accused's Defence Outline despite the fact that the accused was indeed already for trial on 16 November 2016.

The accused's instructing legal practitioner informed the learned judge that no Defence Outline had been prepared but the defence intended to make an application and was awaiting the arrival of instructed counsel, Mr Thabani Mpofu.

The judge adjourned the matter to 11:15 hours.

Shortly before the matter was called in court, the defence produced a document which 'purported' to be an application.

'Purported' because the document does not in the least comply with the rules of court regarding form, substance, and manner of service of court applications.

Furthermore, the face of the so called 'Application for Constitutional Relief” shows that it was a page prepared for a certain Martin Dinha.

The said Dinha's particulars are scratched out in pen and substituted with Johannes Tomana.

Attached to it is an affidavit of the accused and a purported draft order also drawn presumably from an application filed in respect of the said Marin Dinha whose particulars are scratched out and the accused's particulars handwritten in.

After hearing submissions, the court ordered the State to file a written response to the application by 11:45 on 14 February 2017.

During the proceedings, captured on tape, the learned judge repeatedly referred to the accused as 'Prosecutor General.'

I am of opinion that the learned judge has improperly conducted himself and the proceedings.

First of all, Mr Tomana was suspended by H.E. The President of the Republic of Zimbabwe, Cde Robert Gabriel Mugabe on 7 July 2016. Simultaneously, the President appointed and swore in Advocate Ray H Goba as Acting Prosecutor General.

It follows that Mr Tomana, the accused, is not in office and accordingly not 'the Prosecutor General.' In other words, the office/position is occupied by Adv Ray H Goba.

Accordingly, any reference to the accused as Prosecutor General is grossly improper and fails to distinguish between the person and the Constitutional office.

The learned judge's conduct may reasonably be perceived as improper deference to the accused likely to taint his judgment in dealing with the matter.

It is common knowledge that the learned judge previously served on the Board of the National Prosecuting Authority under the chairmanship of the accused before his appointment to the bench.

This may help explain the learned judge's conduct during the hearing; the improper deference to the accused; and improper indulgencies granted to him.

For these reasons, I fear that the proper administration of justice is likely to be prejudiced if Justice Chitapi is to continue presiding over the matter. The public's perception of justice is likely to be diminished in regard this prosecution.

I accordingly, and with the greatest respect to the learned judge, submit that he is singularly unqualified to preside over this matter.

I would wish my concerns to be brought confidentially to his attention in order for him to apply his mind to the matter, to make an appropriate decision, and avoid a formal application in court.

The Honourable Judge President…,.

Advocate Ray H. Goba, Acting Prosecutor General.”...,.

The Acting Prosecutor General committed a cardinal error of requesting the Judge President to deal with the matter confidentially in bringing his concerns to my attention.

Whilst the Acting Prosecutor General may have been well-meaning, his suggestion would have set a very dangerous precedent.

The case had been called.

Orders had been made in court, including that the prosecution team files its response to the defence application by 2:15pm of the following day.

Justice dispensation should not be done behind closed doors.

To have expected the Judge President to have gone along with the Acting Prosecutor General's suggestion, to discuss issues of recusal in private, was clearly an offside move by the Acting Prosecutor General.

The Acting Prosecutor General is strongly warned to desist from such unprofessional and unethical conduct in future.

It was highly irregular of the Acting Prosecutor General to address the Judge President in the manner that he did, concerning the conduct of a judge sitting over a matter - without even having the courtesy to copy the letter to the judge concerned.

As a senior advocate, and Chief Law Officer of the State in criminal matters, he should have led by example.

The Acting Prosecutor General, and his team, should simply have invited the defence team to my chambers and discussed the prosecution concerns, as stated in the letter, if the aim was to avoid making a formal application for recusal in open court.

I earlier indicated that l would deal with how the letter found itself in the public domain.

The letter was copied to the Registrar of the High Court of Zimbabwe and to the defence counsel's law firm. The transcribed record will show, that, when the court hearing resumed, on 14 February 2017, the defence team raised the issue of the letter and its impropriety.

Advocate Mpofu submitted, that, a copy of the letter had been handed or served on the defence team by the prosecution team.

The defence took exception to the letter, which they considered as impugning the integrity of the judicial process, vexatious, and unethical.

Advocate Mpofu submitted, that, it was proper to prepare a citation directing the author of the letter to appear before the court and purge his contempt of the court process.

He also submitted, that, the Acting Prosecutor General, had, in the process of vilifying the judge, incited his subordinates, the prosecuting team, not to comply with the court directive to file a response to the application by the defense counsel.

He noted, that, the application only comprised two pages and there was nothing complicated about the application as would have made it impossible for the prosecution team to prepare a response as undertaken by it.

He attributed the default in filing the response to open and calculated defiance of the authority of the court on the part of the Acting Prosecutor General, who, instead of getting his team to respond to the application, decided to devote his energy and time to writing a scandalous letter.

The lead prosecutor, Mr Chigwinyiso, submitted, that, his team realized that it had allocated itself too little time to research and prepare a response. He submitted, that, his team had covered substantial ground and would require “a day or so” to make a full response.

He applied for the matter to be further postponed for a “day or two in order to file a response to the application made 'yesterday' and then to make a proper application as regards the issues raised by the Acting Prosecutor General.”

The lead prosecutor submitted, that, the State response would be ready and filed by 17 February 2017.

With respect to the letter by the Acting Prosecutor General, the prosecution team could not speak to it or motivate it.

To its credit, the prosecution team, through the lead prosecutor, submitted, that, upon reflection, their boss had misfired by writing a letter to the Judge President concerning a matter before the court, and, moreso, without copying the letter to the presiding judge.

In a lighter moment, I requested the lead prosecutor to look at the dock and tell the court how he would address the accused person.

He gave a witty response. He said:

“I will answer the question from my Lord from a person who is dealing with soccer.

A player who has been red carded still remains a football player. The Prosecutor General is still Prosecutor-General whether suspended or not until he is removed from office.”

He agreed that Advocate Ray Goba was Acting Prosecutor General, discharging the duties of the Prosecutor General, and that the Prosecutor-General was the accused person before the court who however was on suspension.

Mr Chigwinyiso then submitted further, that, the Acting Prosecutor General, as the author of the letter, was best placed to motivate it.

The court then postponed the matter, at the instance of the prosecution team, to the next day, 15 February 2017.

The prosecuting team undertook that it would have filed a formal application for my recusal by 11:15am and the Acting Prosecutor General would appear with the team at 2:15pm whereat he would motivate or explain his letter and deal with the application for my recusal.

I indicated to the prosecution team, that, if it faced time constraints, the application could still be made orally because there was no Rule which prescribed that an application for recusal of the judge be reduced to writing.

Advocate Mpofu submitted, that, the defence wanted the Acting Prosecuting General to be available.

The court did not consider it necessary to prepare a subpoena or citation for the Acting Prosecutor General to appear before the court.

The court considered, that, the Acting Prosecutor General was an officer of the court and a legal practitioner duly sworn, admitted, and registered as such by the High Court: thus, when required by the court to attend, in relation to a matter which he has brought before court, the Acting Prosecutor General, in deference to the court, and the duties of his office, did not require to be compelled by subpoena to appear before the court at its request or direction.

Mr Chingwinyiso undertook to advise the Acting Prosecutor General to appear before the Court on the following day.

The matter was rolled over to the following day, 16 February 2017.

On 16 February 2017, the prosecuting team appeared in court - without the Acting Prosecutor General.

No application was made for him to be excused from attendance nor to explain why he was not in attendance.

The lead prosecutor submitted, that, he relayed the message to the Acting Prosecutor General, that he was required at court to explain the contents of his letter. The Acting Prosecutor General reportedly instructed his prosecuting team to tell the court that his explanation was contained in his affidavit supporting the written application for recusal.

Mr Chingwinyiso further indicated, that, he had spoken to the Acting Prosecutor-General in the morning and he had indicated that he was going to attend.

As it was now 2:53pm, the lead prosecutor indicated that he did not know whether the Acting Prosecutor General would pitch up or not.

Mr Mpofu submitted, that, the Acting Prosecutor General's conduct showed that he had no respect for the court because he deliberately refrained from presenting himself before the court despite the court's directive.

He submitted, that, the application for recusal, in any event, cited the judge as second respondent and yet the judge was supposed to determine it.

To this extent, counsel pointed out, correctly, of course, that, the application was defective to that extent....,.

It is trite that a party cannot be an arbiter where he is a party.

HH660-16 : IGNATIUS MASAMBA vs MERCY GORONGOZA
Ruled By: CHIGUMBA J

The matter came before me on the unopposed roll on 1 September 2016. I dismissed it on the basis that:(a) There is no cause of action, therefore, the relief sought is incompetent.(b) The papers are defective in that they do not comply with Order 32 of the Rules of this ...

HH699-16 : IGNATIUS MASAMBA vs ZETDC
Ruled By: MAKONI J

The applicant approached this court seeking rescission of default judgment entered against him in Case No. HC9544/15 on 8 March 2016.

The background to the matter is that the applicant, as plaintiff, sued the respondent, then the defendant, in the Magistrates Court. The particulars of claim were not clear and concise but they referred to some breach of contract by the respondent; a delictual claim based on the mental suffering that the applicant suffered as a result of the breach of contract.

The magistrate granted absolution from the instance at the close of the applicant, then the plaintiff's case.

The applicant appealed against the decision, in CIV “A” 457/14.

On the day of the hearing, the appeal was dismissed because the applicant defaulted by not appearing.

The applicant, in Case No. HC9542/15, applied for rescission of the default judgment.

Again, at the hearing of Case No. HC9542/15 the applicant was in default and the case was dismissed.

The applicant now seeks rescission of the judgment in terms of Rule 63 of the High Court Rules 1971 (Rules).

In terms of Rule 63, the court may set aside a judgment if there is good and sufficient cause to do so.

Good and sufficient cause has been defined, in a number of jurisdictions, as:

(i) A reasonable explanation for the default;

(ii) Where there is a bona fide defence to the main claim; and

(iii) Where the application for rescission is itself bona fide.

See Chivhayi Enterprises (Pvt) Ltd v Attish Investments (Pvt) Ltd 2007 (2) 89 (S).

The applicant avers, that, the matter was set down in Court “M”. On the day of hearing, the matters were moved to Court “O”. By the time he realized that the matters had been moved, and by the time he managed to get to Court “O” his matter had been dismissed.

The explanation given by the applicant has not been controverted. It sounds probable. I will take that that is what transpired. The detail that he gives regarding the notice that was affixed at the courtroom door has some ring of truth.

The next issue is whether the applicant has a bona fide claim in HC9542/15.

He is seeking rescission of the judgment through which his appeal was dismissed.

The proper procedure would have been for the applicant to apply for reinstatement of the appeal. The applicant has adopted the wrong procedure.

His application, thus, has no prospects of success and it is likely to be dismissed.

In the result, the applicant has not satisfied the requirement that he show good and sufficient cause to have the default judgment rescinded....,.

1. The application is dismissed.

HH709-15 : ODAR HOUSING DEVELOPMENT CONSORTIUM vs SENSENE INVESTMENTS (PVT) LTD and MINISTER OF LOCAL GOVERNMENT, PUBLIC WORKS AND NATIONAL HOUSING and ATTORNEY–GENERAL
Ruled By: MAFUSIRE J

This was an urgent chamber application. At the end of the hearing, I dismissed it with costs on a legal practitioner-and-client scale. I deprecated the conduct of the applicant's legal practitioners.

The purported urgent chamber application was not only bad in many respects, it was incurably bad.

What I was particularly concerned with were the patent falsehoods in the applicant's papers.

Furthermore, there was an apparent disconnection between the order sought, the facts laid out in support thereof, and the allegations in the certificate of urgency.

Here are the details.

(a) Application Defective

In the case of Marick Trading (Private) Limited v Old Mutual Life Assurance Company of Zimbabwe (Private) Limited & Anor HH667-15 I prefaced my judgment with the following remarks:

“Legal practitioners should keep abreast with, and heed pronouncements from the courts. It is a duty. The determination of cases, on the merits, should not be impeded or stalled unnecessarily for failure to follow the rules. This was the case in this matter.”

It was also the case in the instant matter.

In Marick Trading (Private) Limited v Old Mutual Life Assurance Company of Zimbabwe (Private) Limited & Anor HH667-15 I went on to say…,.:

“The point in limine by the respondent was that there was nothing before me to determine because the applicant's application was neither in Form No.29 nor Form 29B as required by Rule 241(1) of the Rules of this Court.

Rule 241 reads:

'(1) A chamber application shall be made by means of an entry in the chamber book and shall be accompanied by Form 29B duly completed, and, except as is provided in subrule (2), shall be supported by one or more affidavits setting out the facts upon which the applicant relies: Provided that, where a chamber application is to be served on an interested party, it shall be in Form No.29 with appropriate modifications.'…,.

In casu, the applicant's urgent chamber application was one to be served. Indeed, it was served.

So it had to be in Form No.29. But it was not. It was also not in Form No. 29(B) either. It read like this:

'TAKE NOTICE that the Applicant hereby makes an Urgent Chamber Application for an order in terms of the draft order annexed to this application and the accompanying affidavits and documents will be used in support of the application.'

I observe, in passing, that, the format of the application used by the applicant seems so popular among legal practitioners in this jurisdiction. I do not know where it comes from. But, all that is required of litigants is simply to copy and paste either Form 29B or Form 29, the latter with appropriate modifications if the application is a chamber application that needs to be served on interested parties.”

It was exactly the same situation obtaining in the instant matter.

The applicant's urgent chamber application read like this:

“BE PLEASED TO TAKE NOTICE THAT an Application is hereby made on an urgent basis and the accompanying affidavits and documents will be used in support thereof.”

Counsel for the applicant tried to save the situation, firstly, by arguing, that, the format used by the applicant was the “…, appropriate modification…,” contemplated by the proviso to Rule 241(1).

But, it could not possibly be.

Before you modify the forms prescribed by the Rules, you got to adopt them first. That is what the Rules command.

As with many other similar applications that have been rejected by the courts before, the applicant in casu adopted neither of the Forms.

At p3 of my cyclostyled judgment in Marick Trading (Private) Limited v Old Mutual Life Assurance Company of Zimbabwe (Private) Limited & Anor HH667-15, I re-stated what I believe is trite:

“Form 29 is for use in ordinary court applications, or those chamber applications that require to be served.

One of its most important features is that it sets out a plethora of procedural rights. It alerts the respondent to those rights. For example, in notifying the respondent of the court application, the form also notifies the respondent of his right to oppose the application and warns him of the consequences of failure to file opposing papers timeously.

On the other hand, Form 29B, for simple chamber applications, requires, that, the substantive grounds for the application be stated, in summary fashion, on the face of that form.

Nothing can be more elementary.

The courts, both in this jurisdiction and elsewhere, have repeatedly drawn attention to the need to follow the rules on this. It is not a 'sterile' argument about forms: Per HLATSHWAYO J in Zimbabwe Open University v Mazombwe 2009 (1) ZLR 101 (H) at p103C.

I sample some of the pronouncements by the courts…,.”

I then went on to cite and quote pertinent remarks in the cases of Simross Vintners (Pty) Ltd v Vermeulen; VRG Africa (Pty) Ltd v Walters t/a Trend Litho; Consolidated Credit Corporation (Pty) Ltd v Van Der Westhuizen 1978 (1) SA 779 (T); Jensen v Acavalos 1993 (1) ZLR 216 (S); Zimbabwe Open University v Mazombwe 2009 (1) ZLR 101 (H); Richard Itayi Jambo v Church of the Province of Central Africa & Ors HH329-13; Minister of Higher & Tertiary Education v BMA Fasteners (Private) Limited & Ors HB42-14; Base Minerals Zimbabwe (Private) Limited & Anor v Chiroswa Minerals (Private) Limited & Ors HH559-14.

So, counsel for the applicant could not save the application on the basis that the applicant's format was the appropriate modification contemplated by the Rules.

She changed tack and applied for condonation.

But, if the application was a nullity ab initio, there was nothing to condone.

At any rate, no good and sufficient cause was proffered why the applicant had, in the first place, refrained from simply “copying and pasting” the prescribed forms.

As the Supreme Court said, in Jensen v Acavalos 1993 (1) ZLR 216 (S), albeit in relation to a defective notice appeal, per KORSAH JA…,:

“The reason is that a notice of appeal which does not comply with the rules is fatally defective and invalid. That is to say, it is a nullity. It is not only bad, but incurably bad, and, unless the court is prepared to grant an application for condonation of the defect and to allow a proper notice to be filed, the appeal must be struck off the roll with costs….,.”

In casu, I was not prepared to grant condonation.

The application was dogged by numerous other defects.

(b) Certificate of Urgency Defective

Where a litigant has determined that his matter is so urgent that it cannot wait for determination in the normal course, the Rules of Court permit and facilitate the jumping of the queue.

This is done through an urgent chamber application.

In such a situation, the Rules require, that, if the applicant is to be represented by a legal practitioner, his urgent chamber application should be accompanied by a certificate from a legal practitioner certifying that the matter is urgent, and giving reasons for such belief.

Once that is done, the Registrar of this court is obliged to immediately submit such application to a judge in chambers.

On his part, the judge is implored to consider the matter forthwith, although retaining the discretion to call for oral submissions from interested parties as he or she may direct.

The duties of a legal practitioner, in relation to certificates of urgency, have been expounded in a number of cases.

In General Transport & Engineering (Pvt) Ltd & Ors v Zimbabwe Banking Corporation (Pvt) Ltd 1998 (2) ZLR 301 (H) GILLESPIE J said…,:

“Where the rule relating to a certificate of urgency requires a legal practitioner to state his own belief in the urgency of the matter, that invitation must not be abused.

He is not permitted to make, as his certificate of urgency, a submission in which he is unable to conscientiously concur. He has to apply his own mind and judgment to the circumstances and reach a personal view that he can honestly pass on to a judge and which he can support not only by the strength of his arguments but on his own honour and name.

The reason behind this is that the court is only prepared to act urgently, on a matter where a legal practitioner is involved, if a legal practitioner is prepared to give his assurance that such treatment is required.

It is, therefore, an abuse for a lawyer to put his name to a certificate of urgency where he does not genuinely believe the matter to be urgent.”

In Oliver Mandishona Chidawu & Ors v Jayesh Shah & Ors SC12-13, the Supreme Court (GOWORA JA) stated…,:

“In certifying the matter as urgent, the legal practitioner is required to apply his or her own mind to the circumstances of the case and reach an independent judgment as to the urgency of the matter.

He or she is not supposed to take verbatim what his or her client says regarding perceived urgency and put it in the certificate of urgency.

I accept the contention by the first respondent, that, it is a condition precedent to the validity of a certificate of urgency that a legal practitioner applies his mind to the facts.”

After making reference to General Transport & Engineering (Pvt) Ltd & Ors v Zimbabwe Banking Corporation (Pvt) Ltd 1998 (2) ZLR 301 (H), the learned judge of appeal continued as follows…,.:

“In order for a certificate of urgency to pass the test of validity, it must be clear ex facie the certificate itself that the legal practitioner who signed it actually applied his or her mind to the facts and the circumstances surrounding the dispute.”

In the present case, the certificate of urgency was furnished by legal practitioner Augustine Runesu Chizikani (“Chizikani”).

He certified a number of allegations as facts upon which he said his belief that the matter was urgent had been based.

He said the applicant and its entire membership would be irreparably harmed if the status quo ante was not restored on an urgent basis. He then listed those harmful events as follows:

(a) The fraudulent termination of the applicant's rights of possession of the property in question;

(b) The eviction of the applicant and its members from the property notwithstanding their right of occupation;

(c) The “[l]egitimisation through the back door of the 2nd Respondent's breach…,” of agreement with the applicant;

(d) Rendering homeless more than 7,600 owners of residential properties;

(e) Continuous harassment of the applicant and its membership through the print media by flighting malicious advertisements and through false and malicious police reports.

Chizikani's certificate also referred to the potential loss by the applicant and its membership of some US$10 million which, allegedly, had been invested in developing the property.

The rest of the certificate was largely legal argument on what the second respondent had allegedly done; what the result of a failure to restore the status quo ante could be; the absence of an alternative remedy; and the miscarriage of justice that would ensue if the matter was not heard on an urgent basis.

Plainly, none of what Chizikani stated in his certificate informed anyone how the matter was urgent.

Counsel for the applicant was in obvious difficulty on this.

The certificate said nothing about when those harmful acts, allegedly by the respondents, had occurred. It said nothing about how it would be justified that the matter be treated as urgent, moreso given that it was said that there was pending, before this court, an ordinary application to determine the substantive rights of the parties vis-a-vis the property at the centre of the dispute.

It is doubtful that Chizikani read the application, especially the draft order.

One remarkable thing about the application was the apparent dissonance between the founding affidavit, the certificate of urgency, and the draft order.

I deal with this aspect more fully below when I deal with the nature of the relief sought.

In Chizikani's certificate of urgency, probably only the reference to the alleged continuous harassment of the applicant and its members spoke to the nature of the relief sought. The rest of the averments, and of most of those in the founding affidavit, seemed a dress rehearsal of the arguments to be proffered in the main case.

A certificate of urgency, by a legal practitioner, is a sine quo non for an application being heard on an urgent basis where the applicant is to be represented.

Where that certificate is incurably defective, it is just as good as if there is no application.

That was another reason why, in this case, I declined to entertain the application on the merits.

(c) The Relief Sought

The applicant's draft order was couched thus:

“TERMS OF FINAL ORDER SOUGHT

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

1. That, the 1st and 2nd Respondents be and are hereby interdicted from interfering with Applicant's operations on the Remainder of the Farm Ordar situate in the district of Salisbury pending determination of an application seeking the setting aside of title transfer under Deed No.2807/2015;

2. That, the 1st Respondent and 2nd Respondents (sic) shall bear the costs of this application on a legal practitioner and client scale.

INTERIM RELIEF GRANTED

Pending determination of this matter, the Applicant is granted the following relief:

1. That, the 1st Respondent be and is hereby interdicted from harassing Applicant's members and/or beneficiaries in any way whatsoever in respect of the Remainder of the Farm Odar immediately upon service of this order.”

The background to this case, in summary, and in my own words, as I understood it, and avoiding much of the contentious stuff, was that the applicant was a consortium or joint venture of some 56 members, comprising, among many others, companies, and State enterprises.

The first respondent was a private company fronted by one Phillip Chiyangwa (“Chiyangwa”).

The second respondent represented the Government.

It was said, in 2006, the Government, in terms of two written agreements, allocated to the applicant some 605,8092 hectares of a property known as Ordar Farm (“the property”).

The allocation was so that the consortium could develop, at its own cost, housing units for its members.

One important feature of the joint venture agreement was that the consortium would, through the Government, pay compensation to the former owner of the land at levels pegged by Government.

This former owner was identified in the agreements as the Zimbabwe Tobacco Association (“ZTA”).

Another feature of the agreements was that the parties to the joint venture would establish a partnership whose members contributions to the capital costs and whose entitlement to the individual land units would be in the proportions as set out.

The day to day management of the partnership would be entrusted to a committee of twelve persons appointed by the partners.

In due course, the Government would pass title to the owners of the individual units of land.

The applicant's case before me, again in my own words, and largely staying clear of the hotly contested facts, was that it had kept its side of the agreement.

Among other things, the relevant developmental permits had been put in place. The property had substantially been developed.

Yet, the Government had blatantly reneged on virtually every other undertaking that it had made to the applicant.

Among other things, the Government had surreptitiously surrendered the property to Phillip Chiyangwa, through his company, the first respondent herein.

A week before the application, the Government had, nicodemously, executed a Deed of Grant over the property in favour of Phillip Chiyangwa's company.

The applicant's members were now at Phillip Chiyangwa's mercy.

They were facing constant harassment from him as he relentlessly pursued compensation from them in return for individual title to the individual units occupied by them in terms of the agreements with the Government.

He was busy flighting malicious adverts in the media and making malicious reports to the police against the applicant's Management Committee.

The applicant did not recognise Phillip Chiyangwa or his alleged rights or title to the property.

In separate proceedings before this court, the applicant said it was challenging Government's actions. In particular, the applicant wanted the title to Phillip Chiyangwa's company reversed.

So. the applicant's case before me was that pending determination of the main case, it wanted a temporary interdict.

It was the nature of that temporary interdict that was the bone of contention.

Prima facie, the applicant had made out a case of double-dealing by the Government.

The Government's conduct was put into serious question.

It had acquired the property; it had allocated it to the applicant; the applicant had expended vast sums of money in line with the agreements; the applicant's members anticipated getting title to the individual units of land over which they had taken occupation, or were in the process of doing so; the level of compensation was, or had to be assessed by the Government.

Then, Phillip Chiyangwa zooms from nowhere, brandishing a title deed issued by the same Government - over the same property.

And the same Government was now tossing the applicant's members to Phillip Chiyangwa to whom payment of the compensation had to be made.

Thus, the Government was in the dock. It owed an explanation.

It was its secret execution of the title deed in favour of Phillip Chiyangwa's company that had prompted the applicant to approach the court on an urgent basis.

That, basically, was the applicant's case.

Unfortunately, it was not the one before me.

It was the case pending before this court for determination at another time and by another judge.

The case before me, as summarised in the interim relief sought, was that I should interdict Phillip Chiyangwa's company from “…, harassing Applicant's members and/or beneficiaries in any way whatsoever….,.”

But, there was a problem with that.

From the papers, it was not Phillip Chiyangwa's company that was doing the harm complained of - it was him personally.

But, he was not a party to the application.

Secondly, and more importantly, what really was being sought was an interdict to stop Phillip Chiyangwa from making police reports against the applicant's Management Committee.

There was attached to the founding affidavit, a document headlined “WANTED BY POLICE”.

Below were pictures of six named individuals and six other names without pictures to them. The six pictures included that of the deponent to the founding affidavit, one Benny Tangai Matenga (“Matenga”).

According to the applicant, the pictured and named individuals were the applicant's Management Committee.

The document offered a reward to anyone who reported them to the police.

However, before me, there was no telling whether the document had been from Phillip Chiyangwa himself or the police.

Also attached to the applicant's papers was another document headlined “PUBLIC NOTICE - WARNING MBAVHA KU SOUTHLEA PARK.”

“Mbavha” is Shona for thief or thieves.

In essence, the document informed the public, that, it had come to the attention of the first respondent that the named individuals, and other “unscrupulous” elements, were illegally selling residential Stands to unsuspecting members of the public.

The document said a report had been made to the police and that only the company could legitimately issue title deeds over the property.

In his affidavit, Phillip Chiyangwa said those individuals were the so-called land barons who had illegally sold off pieces of land from his company's property and whom he had reported to the police.

The point is: it is everyone's right to report what they may perceive to be criminal conduct.

The interim order sought was manifestly incompetent.

In substance, it was sought to gag someone from exercising his right or freedom.

Although not really conceding the point, counsel for the applicant seemed to appreciate the difficulty.

She sought to amend the draft order so that the interdict would read something like this:

“…, to restrain the first respondent from interfering with the applicant's operations at the property; or disposing of any Stands thereon and from harassing the applicant's members and from publishing any false statements pending the determination of the main case….,.”

The first respondent opposed the proposed amendment.

Among other things, counsel for the first respondent pointed out, that, it was the applicant, not the respondents, that was selling off units of land.

In my view, the proposed amendment still amounted to the same thing.

The applicant's real case was that it was for Government to answer why it was ditching its members.

But, no relief was being sought against the Government.

Furthermore, other than the two documents aforesaid, and the single allegation in the founding affidavit to the effect, that, such documents had been flighted in the media by the first respondent, there was nothing else said or shown that amounted to harassment.

There was simply a disconnection between what the application said or highlighted in its application, and the relief sought in the draft order.

Such defect was incurable.

That was yet another reason why I refused to deal with the application.

(d) Falsehoods or material facts concealed

The applicant blatantly neglected to take the court into its confidence. Material facts were omitted from the founding papers.

This was fully exposed and exploited by the first respondent - with fatal consequences.

One example stuck out prominently.

As summarised above, the applicant condemned the Government for, as it were “selling” out to Phillip Chiyangwa.

The applicant did not recognise Phillip Chiyangwa or his company.

The applicant's position was that its members would pay compensation to no one else other than the Government.

The applicant's case, particularly that for urgency, was that it was only after the Government had surreptitiously issued title to Phillip Chiyangwa's company, on 8 July 2015, that it had finally become aware of the Government's sinister dealings.

That was what had triggered the urgent chamber application a week later.

To expose the falsehoods, the first respondent produced several correspondence and documents.

These showed, that, as far back as December 2014, the Government had written to the first respondent, inter alia, confirming its resolution to hand over the property back to it and advising that the first respondent would now receive its compensation directly from the applicant.

The first respondent, had, in turn, copied that letter to the applicant some five days later.

In answer to that, the applicant claimed not to have received the correspondence.

However, it admitted that it had received an agreement, dated 15 April 2015, between the Government and the first respondent.

That agreement was to the same effect as the correspondence.

In fact, it was more elaborate.

It explained the background to the devolution of the property from the Zimbabwe Tobacco Association (ZTA) to the first respondent. It explained how the first respondent would develop the property and receive compensation directly from the applicant, and how the Government would issue a Deed of Grant over the property in favour of the first respondent to facilitate the raising of capital for the developments intended, etc.

All that the applicant challenged, in the answering affidavit, was some inconsequential aspect of that agreement.

Its major argument was that the Government was dealing with the first respondent at its own risk because it had an agreement with the applicant over the property.

But, that was not the point.

The point was that such communication or documents had been concealed from me.

Furthermore, if the applicant had become aware of the Government's intention, inter alia, to issue a title deed over the property in favour of the first respondent as far back as, according to the applicant itself, mid-April 2015; how could the matter then suddenly become urgent only in mid-July 2015 when the applicant finally filed the urgent chamber application?

There was more.

The first respondent produced a sample of the correspondence signed by Benny Tangai Matenga, in February 2015, to members of the consortium.

The letters, referenced “PAYMENT OF COMPENSATION TO SENSENE INVESTMENTS (PVT) LTD” advised that the Government and the first respondent had settled the issue of ownership.

The applicant, itself, was confirming, that, indeed, the first respondent now owned Ordar Farm.

In the circumstances, the applicant's members were being directed to now pay compensation directly to the first respondent.

By all accounts, such correspondence damned the applicant's case.

So, anyone would naturally be curious what the applicant's answer to that could be.

Benny Tangai Matenga had an answer.

He claimed, in the answering affidavit, and in yet another affidavit attached to the answering affidavit, that, he had signed those letters, as it were, at gun point!

He said he had written them without consulting the applicant's Management Committee because a “representative” of the first respondent had stood over him demanding that he signed the letters!

The representative was not named.

Plainly, that was puerile.

At any rate, it was beside the point. The point was that such material correspondence and documents had not been disclosed.

Asked to explain, counsel for the applicant retorted what purpose disclosure would have served.

But, she could not possibly have been serious.

There was yet other more relevant and material letters that the applicant had concealed.

It turned out, that, the applicant had engaged more than one law firm over the issue of, inter alia, the level of compensation payable to Phillip Chiyangwa's company.

One of those law firms, Sawyer & Mkushi, had written to the Government on 28 April 2015.

On 30 April 2015, the Government had replied, advising the lawyers to deal directly with the first respondent to whom the property had been handed back.

The other law firm was Tamuka Moyo Attorneys.

On 6 July 2015, they had written directly to Phillip Chiyangwa, making substantial proposals on, inter alia, the level of compensation the applicant wished to pay him.

The letter clearly accepted, that, the first respondent was the owner of the property.

In the penultimate paragraph, the letter expressed gratitude to Phillip Chiyangwa for the good faith that he had demonstrated towards the applicant.

6 July 2015 was, of course, a mere one week before the urgent chamber application was launched.

Once again, the letters to or from the law firms aforesaid were quite damaging of the applicant's case.

So, again, one was curious what the applicant's answer would be.

It had an answer.

Of the Government's letter to Sawyer & Mkushi, Benny Tangai Matenga said the letter was “invalid” because the first respondent was not a party to the agreement between the applicant and the Government!

Of the letter from Tamuka Moyo Attorneys to Phillip Chiyangwa, Benny Tangai Matenga said the proposals on compensation therein were meant to put the issue of compensation to rest!

Demonstrably, the applicant was ill-advised.

As I dismissed the application, I mentioned that if costs de bonis propriis had been prayed for, I would have seriously considered the request.

(e) Authority to bring proceedings

The applicant's authority to bring the proceedings was seriously challenged by the second respondent in its notice of opposition.

One George Sipihlapi Mlilo, the second respondent's Permanent Secretary, said, in the opposing affidavit, that, the applicant had no locus standi to bring the application; that Benny Tangai Matenga had not shown the authority upon which he was acting, and that nothing had been presented to show that the applicant was legally constituted.

In the founding affidavit, Benny Tangai Matenga had attached some document purporting to be a resolution allegedly passed by the applicant's Management Committee authorising him to sign all court process in connection with the dispute.

The document was signed by the eleven persons, all of whom were the subject of Phillip Chiyangwa's police reports and press adverts.

In reply, Benny Tangai Matenga referred to the Joint Venture Agreement between the Government and the members of the consortium, and the purported resolution. He said that those were the proof of the applicant's locus standi; proof of his authority; and proof of the applicant's legal status.

That was not enough.

The consortium members, as listed on the Joint Venture Agreement, consisted of some 56 legal entities that comprised private companies, listed companies, some associations, State enterprises, co-operative societies, banks, etc. - virtually from the length and breadth of the country.

Certainly more was required of the applicant to prove its authority to bring these proceedings than a mere resolution, especially given that a frontal challenge had been taken.

All this, added to the fatal flaw in the application before me.

It was for the above reasons that I dismissed the application with costs on an attorney and client scale.

HH158-16 : CYNDRELLA MASIMBE vs RAINBOW TOURISM GROUP
Ruled By: MUREMBA J

On 21 January 2015, the respondent obtained judgment in its favour against the applicant under case number HC1548/13. The judgment is for the payment of $35,873 with interest at the rate of 5% per annum from 1 January 2013, and legal costs in the sum of $2,500.

The judgment debt led to the attachment of the applicant's dwelling, namely, Stand 907 Mt Pleasant Heights, Mt Pleasant, Harare.

The applicant received the notice of attachment on 18 January 2016 and filed this application on 29 January 2016.

The applicant wants the sale of the dwelling suspended because, firstly, if the sale is allowed to proceed, her family will suffer great hardship. Secondly, the applicant says she is making a reasonable offer to settle the debt at the rate of $1,000 per month.

The following is the relief that she is asking for:

“Terms of final order sought

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

1. The sale in execution of the said dwelling is suspended on condition that the applicant carries out fully the terms of the offer of settlement made above, and, if applicant defaults on any one instalment, execution shall proceed.

2. No order as to costs.

Interim relief granted:

Pending determination of this matter, the Applicant is granted the following relief:

1. The Deputy Sheriff shall suspend the action towards the sale in execution of the said dwelling.

2. A copy of this order shall be served on the respondent's legal practitioners.”...,.

PROCEDURE

Although the applicant does not state in her application that she is making this application in terms of Order 40 Rule 348A(5a), I do agree with the respondent, that, looking at the nature of the application, it is indeed being made in terms of Order 40 Rule 348A(5a) which deals with applications for the postponement or suspension of the sale of a dwelling where that dwelling has been attached and is occupied by the execution debtor or members of his family.

The execution debtor is empowered to make a chamber application for the postponement or suspension of the sale of the dwelling or eviction of its occupants. The application should be made within 10 days of notice of attachment of the dwelling.

Once such an application is made, the Registrar of this court shall submit the chamber application to a judge who shall consider the papers forthwith: per Rule 244 of the High Court Rules, 1971.

In terms of Rule 348A(6), an application made under Rule 348(A)(5a) shall be treated as urgent and set down urgently, without delay.

However, even if the application is treated urgently, the order that is granted by the court is a final one.

This is supported by Rule 348A(5e) which states, that, if the judge is satisfied that there is good ground for postponing or suspending the sale of the dwelling concerned or postponing or suspending the eviction of the occupants, he may order the postponement or suspension of the sale or eviction subject to terms and conditions he may specify.

The Rule does not say that the order that is granted is a provisional one.

Even the Form 45 upon which this chamber application is made shows that the order which is sought by the applicant is final in nature.

The relevant portion of the Form reads as follows:

“The applicant seeks an order in the following terms:

The sale in execution of the said dwelling is postponed until…,. (date)

OR ALTERNATIVELY:

The sale in execution of the said dwelling shall proceed subject to the condition that the above mentioned occupants are permitted to remain in occupation until…,. (date)

OR ALTERNATIVELY:

The sale in execution of the said dwelling is suspended on condition that the applicant carries out fully the terms of the offer of settlement made above.”

It is apparent therefore, that, in this matter, the applicant ought to have made a chamber application and not an urgent chamber application as she did.

It will be futile to grant a provisional order suspending or postponing the sale.

Once this is done, there will not be anything to confirm on the return day as the provisional order that she is seeking is final in nature and has the effect of a final order. In fact, there will not be any need for confirmation of the provisional order on the return day.

Considering that the applicant is a self-actor who is not well versed with the rules of this court, I will condone her adoption of the wrong procedure.

This is in light of the fact, that, the respondent did not make it an issue.

It is just an observation that I made as the court.

HH158-17 : THE TRUSTEES OF THE APOSTOLIC FAITH MISSION OF AFRICA vs ZULU ROSEWELL and OTHERS
Ruled By: MATANDA-MOYO J

Legal practitioners should keep up to date with and give cognizance to rules of the courts. They should not waste the court's time by bringing ludicrous applications before the court. The determination of cases should not be slowed or deferred un-essentially because a legal practitioner has failed to assimilate the Rules.

This was the case in this matter.

This was an application brought before the court on an urgent basis; but, before the court could hear the matter on the merits, the respondents took a technical objection in points in limine.

I reserved judgement, and, so here is my judgement.

The first point in limine raised by the respondent was that there was no application before me, based on the fact, that, the application did not comply with Rule 241.

Rule 241 states:

“(1) A chamber application shall be made by means of an entry in the chamber book and shall be accompanied by Form 29B duly completed and except as is provided in subrule (2) shall be supported by one or more affidavits setting out the facts upon which the application relies:
Provided, that, where a chamber application is to be served on an interested party, it shall be in Form No. 29 with appropriate modifications.”

However, the form in which this application was brought was neither in Form 29 nor 29B; I have no idea which form was used, nor do I know where the legal practitioner for the applicant got it from.

However, the lawyer for the applicant still managed to waste the court's time by referring the court to Rule 241 and Form 29B as read with Rule 244.

I do not have time to start teaching legal practitioners how to interpret statutes.

Rule 241 states that a chamber application should be in Form 29B; but, if it needs to be served, should be in Form 29.

Rule 244 is of no importance in answering a point in limine raised by the respondent: see Marick Trading (Pvt) Ltd v Old Mutual Life Assurance Company of Zimbabwe Ltd and Another 2015 (2) ZLR 343.

When such a chamber application is brought before the court, it should be in Form 29 as it would need to be served on all interested parties.

This was an application that was truly defective.

Fortunately, the law is very lenient with legal practitioners and allows such lawyers to correct their mistakes by making an application for condonation to rectify any faulty applications.

However, the applicant's lawyer denied that the application was defective.

The applicant thus never made any application: instead, he submitted that the application is not fatal and stated that so long as he is able to show that there is compliance with the Rules, the application should be heard.

In National Social Security Authority v D Chipunza SC116-04 the court had this to say on rules of court:

“…,. Rules of court are enacted for purpose of regulating the conduct of matters brought before the court and that condonation of failure to observe them is not automatic or there for the asking. An applicant must make out a good case for condonation of its non-compliance with the rules. Failure to do so is fatal to his application.”

The applicant herein was alerted of its failure to comply with the Rules but decided not to apply for condonation.

Without an application before me, I cannot mero motu grant condonation.

As soon as a party realizes it has not complied with any of the Rules, that party should file an application for condonation: see De Beer En'N Aner v Westen Bank Ltd 1981 (4) SA 255.

In addition, as I have stated above, condonation for non-observance of rules of court is by no means a mere formality. It is for the applicant to satisfy the court, that, there is sufficient cause for excusing the non-compliance: see Meinfjres v H–D Combrinck (EDMS) BPK 1961 (1) SA 262 (AD)…,.

In this instance, although it became clear to counsel for the applicant that he had not complied with Rule 241(1) - but he insisted he had breached no Rules.

It was clear that the application by the applicant was one which required to be served on the other party. It had to be in Form 29B.

Counsel for the applicant argued, that, the applicant was allowed, in terms of the proviso to Rule 241(1), to use the procedure with modification. He argued that what he did was to simply modify the procedure.

The proviso to Rule 241(1) reads;

“Provided that, where a chamber application is to be served on an interested party, it shall be in Form 29 with appropriate modification.”…,.

Modification has been defined as an act or process of changing parts of something. It is a change or alteration that makes something work better. Modification must leave some resemblance to the original form.

The original Form 29 informs the respondent that if he intends to oppose the application he should file a Notice of Opposition in Form 29A, together with opposing affidavits. It also states that such opposition must be served on the applicant.

The applicant's application reads;

“TAKE NOTICE THAT an application is hereby made for an order in terms of the provisional order annexed to this application on the grounds that;

1….,.

2….,.

3….,.

FURTHER TAKE NOTICE THAT THE accompanying affidavit and documents shall be used in support thereof.

Dated at Harare this 3rd of February 2017.”

Obviously, such format is very different from Form 29.

The format used does not inform the respondents of what they must do upon receiving the application.

As I said above, modification must be done in a manner which leave the Form 29, as provided, better. One cannot reduce the requirements in Form 29 and call such modification.

I am of the view, that, the applicant has failed to comply with Rule 241(1) of this court's Rules.

Whilst it is within my power to condone such non-compliance, it is trite I must do so upon request.

I have not been requested to condone such derogation from the Rules.

The only remedy I have is to strike off the matter from the roll: see Forestry Commission v Moyo 1997 (1) ZLR 254 (S).

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Final Orders re: Procedural Irregularities and Discretion of Court to Condone, Interfere, Dismiss, Remit, Strike or Remove

HH425-18 : MIDLANDS STATE UNIVERSITY vs GALAXY ENGINEERING DESIGN CONSULTANTS (PVT) LTD Ruled By: CHIKOWERO J

SC08-16 : CFI RETAIL (PRIVATE) LIMITED vs ERIC MANYIKA Ruled By: MALABA DCJ, ZIYAMBI JA and GOWORA JA

View Appeal HH373-15 : CARE INTERNATIONAL IN ZIMBABWE vs ZIMBABWE REVENUE AUTHORITY and DESMOND MANINIMINI and SURVIVAL HARDWARE (PRIVATE) LIMITED Ruled By: MTSHIYA J

SC131-21 : CHANTELLE MUTESWA vs FRANK BUYANGA SADIQI Ruled By: UCHENA JA, CHITAKUNYE JA and KUDYA JA

HB31-15 : TAMIRA OVERSEAS S.A. vs AQUIRIUM TRADING (PVT) LTD Ruled By: TAKUVA J

SC134-21 : OK ZIMBABWE LIMITED vs BENJAMIN TAZVIVINGA Ruled By: GWAUNZA DCJ, HLATSHWAYO JA and BERE JA

SC137-21 : ZIMBABWE NEWSPAPERS (1980) LIMITED vs TEMBANI KUFA Ruled By: MAKARAU JA, GOWORA JA and MATHONSI JA

SC138-21 : DIVVYLAND INVESTMENTS (PRIVATE) LIMITED vs DAVID CHIWEZA Ruled By: PATEL JA, GUVAVA JA and BHUNU JA

SC143-21 : HAPPISON MUCHECHETERE vs ZIMBABWE BROADCASTING CORPORATION (PVT) LTD and RETIRED JUSTICE JAMES DEVITTE N.O. and GIBSON MUNYORO Ruled By: GWAUNZA DCJ, UCHENA JA and MAKONI JA

SC146-21 : THE GARRAT TRUST vs CREATIVE CREDIT (PRIVATE) LIMITED Ruled By: BHUNU JA

HB38-15 : SIBUCO TRADING (PVT) LTD and EDITH KATAMBARARE vs LEADERS (PVT) LTD and MESSENGER OF COURT Ruled By: MAKONESE J

HH391-17 : ANDREW PASCOE vs MINISTRY OF LANDS & RURAL RESETTLEMENT and W. BUNGU and THE ATTORNEY GENERAL N.O. Ruled By: FOROMA J

HH667-15 : MARICK TRADING (PRIVATE) LIMITED vs OLD MUTUAL LIFE ASSURANCE COMPANY OF ZIMBABWE (PVT) LTD and THE SHERIFF FOR ZIMBABWE Ruled By: MAFUSIRE J

HH801-22 : EQUITY PROPERTIES (PVT) LTD vs AL SHAMS GLOBAL BVI LIMITED and REGISTRAR OF DEEDS N.O. Ruled By: MANGOTA J

CC02-21 : TEMBA MLISWA vs PARLIAMENT OF THE REPUBLIC OF ZIMBABWE Ruled By: MALABA CJ, GWAUNZA DCJ, GARWE AJCC, MAKARAU AJCC, GOWORA AJCC, HLATSHWAYO AJCC and PATEL AJCC

HH11-06 : ZAKEYO MEREKI vs BELL INN (PVT) LTD and MICHAEL BELINSKY and OFFICER COMMANDING MASHONALAND WEST Ruled By: KAMOCHA J

CC03-21 : PRAYMORE MAKANDA vs MAGISTRATE SANDE N.O. and MAGISTRATE KADYE N.O. and MAGISTRATE NDIRAYA N.O. and THE STATE Ruled By: GOWORA AJCC, HLATSHWAYO AJCC and PATEL AJCC

CC05-21 : RITA MBATHA vs CONFEDERATION OF ZIMBABWE INDUSTRIES and THE SHERIFF OF ZIMBABWE Ruled By: GARWE AJCC, GOWORA AJCC and PATEL AJCC

CC06-15 : ANNA CHIHAVA and BOAS MAPUVA and ZISHE CHIZANI vs THE PROVINCIAL MAGISTRATE FRANCIS MAPFUMO N.O. and THE PROSECUTOR GENERAL Ruled By: CHIDYAUSIKU CJ, MALABA DCJ, ZIYAMBI JCC, GWAUNZA JCC, GARWE JCC, GOWORA JCC, HLATSHWAYO JCC, GUVAVA JCC and CHIWESHE AJCC

Appealed CC07-21 : MARX MUPUNGU vs MINISTER OF JUSTICE, LEGAL AND PARLIAMENTARY AFFAIRS and OTHERS Ruled By: GWAUNZA ACJ, GARWE JCC, MAKARAU JCC, GOWORA JCC, HLATSHAWAYO JCC, PATEL JCC and GUVAVA AJCC

CC09-21 : GIFT KONJANA vs DEXTER NDUNA Ruled By: GARWE AJCC, GOWORA AJCCand HLATSHWAYO AJCC

CC11-21 : LIZIWE MUSEREDZA and 385 OTHERS vs MINISTER OF AGRICULTURE, LANDS, WATER AND RURAL RESETTLEMENT and MAPARAHWE PROPERTIES (PVT) LTD and OTHERS Ruled By: GWAUNZA DCJ, GARWE JCC, MAKARAU JCC, GOWORA JCC, HLATSHWAYO JCC, PATEL JCC and UCHENA AJCC

CC01-22 : LIZIWE MUSEREDZA and 303 OTHERS (LISTED) vs MINISTER OF AGRICULTURE, LANDS, WATER AND RURAL RESETTLEMENT and MAPARAHWE PROPERTIES (PRIVATE) LIMITED and OTHERS Ruled By: GOWORA JCC, HLATSHAWYO JCC and PATEL JCC

CC01-22 : LIZIWE MUSEREDZA and 303 OTHERS (LISTED) vs MINISTER OF AGRICULTURE, LANDS, WATER AND RURAL RESETTLEMENT and MAPARAHWE PROPERTIES (PRIVATE) LIMITED and OTHERS Ruled By: GOWORA JCC, HLATSHAWYO JCC and PATEL JCC

CC05-22 : GOVATI MHORA vs EMMACULATA MHORA Ruled By: PATEL JCC

CC08-22 : IGNATIUS CHOMBO vs THE NATIONAL PROSECUTING AUTHORITY and THE PROSECUTOR GENERAL and THE ATTORNEY GENERAL Ruled By: GARWE JCC, MAKARAU JCC and PATEL JCC

CC09-22 : MINISTER OF MINES & MINING DEVELOPMENT and THE PROVINCIAL MINING DIRECTOR FOR MIDLANDS PROVINCE vs FIDELITY PRINTERS & REFINERS (PVT) LTD and JONAH NHEVERA Ruled By: GOWORA JCC

CC07-15 : DANIS KONSON vs THE STATE Ruled By: CHIDYAUSIKU CJ, MALABA DCJ, GWAUNZA JCC, GARWE JCC, GOWORA JCC, HLATSHWAYO JCC, PATEL JCC, GUVAVA JCC and MAVANGIRA AJCC

View Appeal HH264-21 : MUSA KIKA vs MINISTER OF JUSTICE LEGAL & PARLIAMENTARY AFFAIRS and THE CHIEF JUSTICE HONOURABLE LUKE MALABA N.O. and OTHERS Ruled By: ZHOU J, CHAREWA J and MUSHORE J

SC70-19 : ADRIAN READ vs JOHN GARDINER and SAFARI HUNTERS (PRIVATE) LIMITED Ruled By: HLATSHWAYO JA, PATEL JA and MAVANGIRA JA

Appealed SC75-17 : EDWARD MADYAVANHU vs REGGIE SARUCHERA and GRANT THORNTON CAMELSA CHARTERED ACCOUNTANTS (ZIMBABWE) and CAIRNS FOODS LTD Ruled By: GWAUNZA JA, GUVAVA JA and ZIYAMBI AJA

Appealed SC179-20 : MFUNDO MLILO vs THE PRESIDENT OF THE REPUBLIC OF ZIMBABWE Ruled By: GARWE JA, MAKARAU JA and MAKONI JA

SC86-14 : W. CHOMUREMA and E. MUZOKOMBA vs TELONE Ruled By: GWAUNZA JA

HMT02-19 : RUBEN ZIMONDI vs SECRETARY PUBLIC SERVICE COMMISSION and GENERAL COMMISSIONER OF THE PRISONS AND CORRECTIONAL SERVICE and MINISTER OF JUSTICE, LEGAL AND PARLIAMENTARY AFFAIRS and PRESIDENT OF ZIMBABWE Ruled By: MUZENDA J

HMT08-19 : STELLA MASUNGA vs FORWARD KAPIYA Ruled By: MWAYERA J and MUZENDA J

HMT45-19 : JAMES DRYNAN vs MAGISTRATE N. N KUTURE and ZIMBABWE NATIONAL ROADS ADMINISTRATION Ruled By: MUZENDA J

View Appeal HH661-16 : M COMPANY (PVT) LTD vs ZIMBABWE REVENUE AUTHORITY Ruled By: KUDYA J

HH728-17 : C R S (PVT) LTD vs ZIMBABWE REVENUE AUTHORITY Ruled By: KUDYA J

HB29-17 : CLAUDIOUS MANAMELA and BRIGHTON NANGA and SAZIWE DUBE and ENOCK MARUME vs COMMISSIONER GENERAL ZIMBABWE REPUBLIC POLICE and OFFICER ON CHARGE NJUBE POLICE STATION and APOSTOLIC FAITH MISSION OF AFRICA Ruled By: KAMOCHA J

HMT53-19 : SHINGIRAI VAMBE vs RUSAPE TOWN COUNCIL Ruled By: MWAYERA J and MUZENDA J

HH125-17 : GRANDWELL HOLDINGS vs ZIMBABWE CONSOLIDATED DIAMOND COMPANY LTD and COMMISSIONER GENERAL, ZIMBABWE REPUBLIC POLICE and MBADA DIAMONDS (PVT) LTD Ruled By: TSANGA J

HHH531-17 : STATE vs JOHANNES TOMANA Ruled By: CHITAPI J

HH660-16 : IGNATIUS MASAMBA vs MERCY GORONGOZA Ruled By: CHIGUMBA J

HH699-16 : IGNATIUS MASAMBA vs ZETDC Ruled By: MAKONI J

HH709-15 : ODAR HOUSING DEVELOPMENT CONSORTIUM vs SENSENE INVESTMENTS (PVT) LTD and MINISTER OF LOCAL GOVERNMENT, PUBLIC WORKS AND NATIONAL HOUSING and ATTORNEY–GENERAL Ruled By: MAFUSIRE J

HH158-16 : CYNDRELLA MASIMBE vs RAINBOW TOURISM GROUP Ruled By: MUREMBA J

HH158-17 : THE TRUSTEES OF THE APOSTOLIC FAITH MISSION OF AFRICA vs ZULU ROSEWELL and OTHERS Ruled By: MATANDA-MOYO J

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Zimbabwe

HH425-18 : MIDLANDS STATE UNIVERSITY vs GALAXY ENGINEERING DESIGN CONSULTANTS (PVT) LTD
Ruled By: CHIKOWERO J

SC08-16 : CFI RETAIL (PRIVATE) LIMITED vs ERIC MANYIKA
Ruled By: MALABA DCJ, ZIYAMBI JA and GOWORA JA

View Appeal
HH373-15 : CARE INTERNATIONAL IN ZIMBABWE vs ZIMBABWE REVENUE AUTHORITY and DESMOND MANINIMINI and SURVIVAL HARDWARE (PRIVATE) LIMITED
Ruled By: MTSHIYA J

SC131-21 : CHANTELLE MUTESWA vs FRANK BUYANGA SADIQI
Ruled By: UCHENA JA, CHITAKUNYE JA and KUDYA JA

HB31-15 : TAMIRA OVERSEAS S.A. vs AQUIRIUM TRADING (PVT) LTD
Ruled By: TAKUVA J

SC134-21 : OK ZIMBABWE LIMITED vs BENJAMIN TAZVIVINGA
Ruled By: GWAUNZA DCJ, HLATSHWAYO JA and BERE JA

SC137-21 : ZIMBABWE NEWSPAPERS (1980) LIMITED vs TEMBANI KUFA
Ruled By: MAKARAU JA, GOWORA JA and MATHONSI JA

SC138-21 : DIVVYLAND INVESTMENTS (PRIVATE) LIMITED vs DAVID CHIWEZA
Ruled By: PATEL JA, GUVAVA JA and BHUNU JA

SC143-21 : HAPPISON MUCHECHETERE vs ZIMBABWE BROADCASTING CORPORATION (PVT) LTD and RETIRED JUSTICE JAMES DEVITTE N.O. and GIBSON MUNYORO
Ruled By: GWAUNZA DCJ, UCHENA JA and MAKONI JA

SC146-21 : THE GARRAT TRUST vs CREATIVE CREDIT (PRIVATE) LIMITED
Ruled By: BHUNU JA

HB38-15 : SIBUCO TRADING (PVT) LTD and EDITH KATAMBARARE vs LEADERS (PVT) LTD and MESSENGER OF COURT
Ruled By: MAKONESE J

HH391-17 : ANDREW PASCOE vs MINISTRY OF LANDS & RURAL RESETTLEMENT and W. BUNGU and THE ATTORNEY GENERAL N.O.
Ruled By: FOROMA J

HH667-15 : MARICK TRADING (PRIVATE) LIMITED vs OLD MUTUAL LIFE ASSURANCE COMPANY OF ZIMBABWE (PVT) LTD and THE SHERIFF FOR ZIMBABWE
Ruled By: MAFUSIRE J

HH801-22 : EQUITY PROPERTIES (PVT) LTD vs AL SHAMS GLOBAL BVI LIMITED and REGISTRAR OF DEEDS N.O.
Ruled By: MANGOTA J

CC02-21 : TEMBA MLISWA vs PARLIAMENT OF THE REPUBLIC OF ZIMBABWE
Ruled By: MALABA CJ, GWAUNZA DCJ, GARWE AJCC, MAKARAU AJCC, GOWORA AJCC, HLATSHWAYO AJCC and PATEL AJCC

HH11-06 : ZAKEYO MEREKI vs BELL INN (PVT) LTD and MICHAEL BELINSKY and OFFICER COMMANDING MASHONALAND WEST
Ruled By: KAMOCHA J

CC03-21 : PRAYMORE MAKANDA vs MAGISTRATE SANDE N.O. and MAGISTRATE KADYE N.O. and MAGISTRATE NDIRAYA N.O. and THE STATE
Ruled By: GOWORA AJCC, HLATSHWAYO AJCC and PATEL AJCC

CC05-21 : RITA MBATHA vs CONFEDERATION OF ZIMBABWE INDUSTRIES and THE SHERIFF OF ZIMBABWE
Ruled By: GARWE AJCC, GOWORA AJCC and PATEL AJCC

CC06-15 : ANNA CHIHAVA and BOAS MAPUVA and ZISHE CHIZANI vs THE PROVINCIAL MAGISTRATE FRANCIS MAPFUMO N.O. and THE PROSECUTOR GENERAL
Ruled By: CHIDYAUSIKU CJ, MALABA DCJ, ZIYAMBI JCC, GWAUNZA JCC, GARWE JCC, GOWORA JCC, HLATSHWAYO JCC, GUVAVA JCC and CHIWESHE AJCC

Appealed
CC07-21 : MARX MUPUNGU vs MINISTER OF JUSTICE, LEGAL AND PARLIAMENTARY AFFAIRS and OTHERS
Ruled By: GWAUNZA ACJ, GARWE JCC, MAKARAU JCC, GOWORA JCC, HLATSHAWAYO JCC, PATEL JCC and GUVAVA AJCC

CC09-21 : GIFT KONJANA vs DEXTER NDUNA
Ruled By: GARWE AJCC, GOWORA AJCCand HLATSHWAYO AJCC

CC11-21 : LIZIWE MUSEREDZA and 385 OTHERS vs MINISTER OF AGRICULTURE, LANDS, WATER AND RURAL RESETTLEMENT and MAPARAHWE PROPERTIES (PVT) LTD and OTHERS
Ruled By: GWAUNZA DCJ, GARWE JCC, MAKARAU JCC, GOWORA JCC, HLATSHWAYO JCC, PATEL JCC and UCHENA AJCC

CC01-22 : LIZIWE MUSEREDZA and 303 OTHERS (LISTED) vs MINISTER OF AGRICULTURE, LANDS, WATER AND RURAL RESETTLEMENT and MAPARAHWE PROPERTIES (PRIVATE) LIMITED and OTHERS
Ruled By: GOWORA JCC, HLATSHAWYO JCC and PATEL JCC

CC01-22 : LIZIWE MUSEREDZA and 303 OTHERS (LISTED) vs MINISTER OF AGRICULTURE, LANDS, WATER AND RURAL RESETTLEMENT and MAPARAHWE PROPERTIES (PRIVATE) LIMITED and OTHERS
Ruled By: GOWORA JCC, HLATSHAWYO JCC and PATEL JCC

CC05-22 : GOVATI MHORA vs EMMACULATA MHORA
Ruled By: PATEL JCC

CC08-22 : IGNATIUS CHOMBO vs THE NATIONAL PROSECUTING AUTHORITY and THE PROSECUTOR GENERAL and THE ATTORNEY GENERAL
Ruled By: GARWE JCC, MAKARAU JCC and PATEL JCC

CC09-22 : MINISTER OF MINES & MINING DEVELOPMENT and THE PROVINCIAL MINING DIRECTOR FOR MIDLANDS PROVINCE vs FIDELITY PRINTERS & REFINERS (PVT) LTD and JONAH NHEVERA
Ruled By: GOWORA JCC

CC07-15 : DANIS KONSON vs THE STATE
Ruled By: CHIDYAUSIKU CJ, MALABA DCJ, GWAUNZA JCC, GARWE JCC, GOWORA JCC, HLATSHWAYO JCC, PATEL JCC, GUVAVA JCC and MAVANGIRA AJCC

View Appeal
HH264-21 : MUSA KIKA vs MINISTER OF JUSTICE LEGAL & PARLIAMENTARY AFFAIRS and THE CHIEF JUSTICE HONOURABLE LUKE MALABA N.O. and OTHERS
Ruled By: ZHOU J, CHAREWA J and MUSHORE J

SC70-19 : ADRIAN READ vs JOHN GARDINER and SAFARI HUNTERS (PRIVATE) LIMITED
Ruled By: HLATSHWAYO JA, PATEL JA and MAVANGIRA JA

Appealed
SC75-17 : EDWARD MADYAVANHU vs REGGIE SARUCHERA and GRANT THORNTON CAMELSA CHARTERED ACCOUNTANTS (ZIMBABWE) and CAIRNS FOODS LTD
Ruled By: GWAUNZA JA, GUVAVA JA and ZIYAMBI AJA

Appealed
SC179-20 : MFUNDO MLILO vs THE PRESIDENT OF THE REPUBLIC OF ZIMBABWE
Ruled By: GARWE JA, MAKARAU JA and MAKONI JA

SC86-14 : W. CHOMUREMA and E. MUZOKOMBA vs TELONE
Ruled By: GWAUNZA JA

HMT02-19 : RUBEN ZIMONDI vs SECRETARY PUBLIC SERVICE COMMISSION and GENERAL COMMISSIONER OF THE PRISONS AND CORRECTIONAL SERVICE and MINISTER OF JUSTICE, LEGAL AND PARLIAMENTARY AFFAIRS and PRESIDENT OF ZIMBABWE
Ruled By: MUZENDA J

HMT08-19 : STELLA MASUNGA vs FORWARD KAPIYA
Ruled By: MWAYERA J and MUZENDA J

HMT45-19 : JAMES DRYNAN vs MAGISTRATE N. N KUTURE and ZIMBABWE NATIONAL ROADS ADMINISTRATION
Ruled By: MUZENDA J

View Appeal
HH661-16 : M COMPANY (PVT) LTD vs ZIMBABWE REVENUE AUTHORITY
Ruled By: KUDYA J

HH728-17 : C R S (PVT) LTD vs ZIMBABWE REVENUE AUTHORITY
Ruled By: KUDYA J

HB29-17 : CLAUDIOUS MANAMELA and BRIGHTON NANGA and SAZIWE DUBE and ENOCK MARUME vs COMMISSIONER GENERAL ZIMBABWE REPUBLIC POLICE and OFFICER ON CHARGE NJUBE POLICE STATION and APOSTOLIC FAITH MISSION OF AFRICA
Ruled By: KAMOCHA J

HMT53-19 : SHINGIRAI VAMBE vs RUSAPE TOWN COUNCIL
Ruled By: MWAYERA J and MUZENDA J

HH125-17 : GRANDWELL HOLDINGS vs ZIMBABWE CONSOLIDATED DIAMOND COMPANY LTD and COMMISSIONER GENERAL, ZIMBABWE REPUBLIC POLICE and MBADA DIAMONDS (PVT) LTD
Ruled By: TSANGA J

HHH531-17 : STATE vs JOHANNES TOMANA
Ruled By: CHITAPI J

HH660-16 : IGNATIUS MASAMBA vs MERCY GORONGOZA
Ruled By: CHIGUMBA J

HH699-16 : IGNATIUS MASAMBA vs ZETDC
Ruled By: MAKONI J

HH709-15 : ODAR HOUSING DEVELOPMENT CONSORTIUM vs SENSENE INVESTMENTS (PVT) LTD and MINISTER OF LOCAL GOVERNMENT, PUBLIC WORKS AND NATIONAL HOUSING and ATTORNEY–GENERAL
Ruled By: MAFUSIRE J

HH158-16 : CYNDRELLA MASIMBE vs RAINBOW TOURISM GROUP
Ruled By: MUREMBA J

HH158-17 : THE TRUSTEES OF THE APOSTOLIC FAITH MISSION OF AFRICA vs ZULU ROSEWELL and OTHERS
Ruled By: MATANDA-MOYO J