2. Whether the court a quo was correct in holding that the appellant could not consider the merits of the respondent's complaint in relation to the question of the grant of leave.

This ground of appeal challenges the competency of the order made by the court a quo, whose effect was to effectively rule out any opportunity for the appellant to consider the merits of the respondent's request to it, for leave to sue an entity under its administration. 

As already indicated, the court a quo did not grant any of the specific forms of relief provided for in section 4(2) of the Administrative Justice Act [Chapter 10:28]. The judge a quo, being fully cognisant of the provisions in question, justified his non-observance thereof, in the following terms:

“The applicant has urged of me the grant of the leave to sue which should have been granted by the respondent mainly because the respondent is not going to grant the leave, having already nailed his colours onto the mast, and, in any event because I have all the facts with which to base such decision. While it is rare that the court would be justified in usurping the decision making function of the administrative authority, McNALLY JA set out four situations where the court might take such action in Affretair (Pvt) Ltd & Anor v MK Airlines (Pvt) Ltd 1996 (2) ZLR 15 (S). These are:

“1. Where the end result is a foregone conclusion and it would be a waste of time to refer the matter back;

2. Where further delay could prejudice the applicant;

3. Where the extent of bias or incompetence is such that it would be unfair to the applicant to force it to submit to the same jurisdiction again; and

4. Where the court is in as good a position as the administrative body to make the decision.

In this case, although some of the requirements may be said to be mutually exclusive, I am of the view that all of them exist. To my mind, it is a foregone conclusion that the applicant should be granted leave, although the respondent thinks otherwise. The applicant has waited for leave for more than a year and further delay would be unfair to him. I have already expressed my suspicion of the existence of bias, the respondent being an interested party. In any event, I am in as good a position to make the decision as the respondent.”

It is pertinent to note that the Affretair (Pvt) Ltd & Anor v M.K. Airlines (Pvt) Ltd 1996 (2) ZLR 15 (S) case that the judge a quo premised its decision on was an application for review in terms of Order 33 of the High Court Rules. It is on this basis that counsel for the appellant argued that the court a quo contradicted itself by justifying its interference on the basis of review proceedings when it had found that the proceedings in question were not those for a review.

This argument seems to suggest that review proceedings that are brought in terms of Order 33 of the High Court Rules enjoy a monopoly over the grounds on which interference with an order or proceedings of an inferior court or tribunal, may be justified.  

I am not persuaded that is the case.

As indicated above, sections 26 and 27 of the High Court Act [Chapter 7:06], and Rule 256 of the High Court Rules, do not rule out review proceedings being brought in terms of “any other law.” I take the view that such other review proceedings may properly rely on the same or similar grounds as a basis for some interference or other, by a superior tribunal, with a lower tribunal's order or proceedings. For instance, in Johannesburg Consolidated Investment Co and Anor v Johannesburg City Council 1903 TS 111, the court distinguished three types of reviews, being, review by summons, a wider power of review granted by statute, and, thirdly,…, review by motion.

What is important at the end of the day is that justice and fairness prevail, following upon a court ruling that is premised on cogent reasoning and sound principles of law.

I am satisfied, in any case, that the propriety of the relief granted by the court a quo is put beyond doubt when regard is had to section 2(2) of the Administrative Justice Act [Chapter 10:28] which reads as follows:

“(2) The provision of this Act shall be construed as being in addition to, and not as limiting, any other right to appeal against, bring on review or apply for any other form of relief in respect of any administrative actions to which this Act applies”…,.

Related to the circumstances of this case, I find that while section 4(2) of the Administrative Justice Act [Chapter 10:28] lists the types of relief the High Court could have granted - that list is not exhaustive. Rather, it is additional to any other relief that may be sought in respect of any administrative action relevant to the Act.

The respondent's application to the appellant for leave to sue SMM Holdings (Private) Limited, dated 3 August 2012, was, for over a year, and in the words of the court a quo, “met with deafening silence” from the latter. Not only was there silence, no reasons were proffered for it within a reasonable, or any, period at all. In my view, while the High Court could have sent the matter back to the administrator with specific instructions or conditions on how to address the respondent's request for leave, it was nevertheless, within its competence in terms of section 2(2) of the Administrative Justice Act [Chapter 10:28], to grant the relief sought.

I am persuaded that a proper case has been made for the leave in question to be granted by the court a quo….,.

In the final result, I find that the appellant's second ground of appeal lacks merit and must be dismissed….,.

It is in the result ordered as follows:-

Factual Background

The respondents are employees of the Public Service Commission, engaged as law officers or public prosecutors and assigned by the Public Service Commission to the Attorney-General's Office. They are all members of the Zimbabwe Law Officers Association (the Association) and were elected as office-bearers of its Executive Committee in July 2011.

On 18 September 2011, acting under the auspices of the Zimbabwe Law Officers Association, the respondents, together with a majority of their colleagues, resolved to embark on a work stoppage in order to redress their salary-related grievances. On 17 October 2011, the appellant wrote to the respondents asking them to respond within seven (7) days to various allegations of unbecoming conduct not befitting a law officer. The respondents purported to reply to some of the allegations on 24 October 2011 in a letter from the Zimbabwe Law Officers Association. Subsequently, through a letter dated 26 October 2011, from their current lawyers, the respondents indicated that a substantive response would be availed in due course. A day later, on 27 October 2011, their lawyers wrote to the appellant stating that “your inquiry [sic] or request has no foundation at law” and that “our clients reserve their rights until such time they are lawfully advised of the legal basis upon which the request is made.”

Subsequently, in his letter dated 3 November 2011, the appellant took the position that the respondents had chosen to ignore his request and had therefore admitted all the allegations levelled against them. He then proceeded to state that “with immediate effect [I] withdraw my authority and power to prosecute conferred upon me under section 76 of the Constitution of Zimbabwe.'' He also referred the respondents “to your employer for further processing according to law.” Thereafter, his deputies directed the respondents not to carry out their duties as prosecutors, not to deal with any dockets in their offices, to vacate their respective offices and to hand over their office keys. The respondents complied with these instructions, under protest, and lodged an urgent application in the High Court alleging that the appellant had breached their rights to administrative justice.

Proceedings in the High Court

The appellant raised two points in limine before the High Court;

(i) The first was that the respondents had no valid cause of action vis-à-vis the Attorney-General's constitutional authority.

(ii) The second point was that the court lacked jurisdiction over a dispute that was essentially a labour matter.

The learned judge dismissed both of these preliminary points.

He held that a representative of the Attorney-General could only be dismissed lawfully and following due process. Accordingly, the Attorney-General's actions could be impugned and set aside by a competent court. He remained autonomous and independent but operating under the law as he was not above the law. As for its jurisdiction, the court held that the withdrawal of prosecutorial powers was essentially not a labour issue inasmuch as its impact would be felt by the general public as well…,.

As to the merits, the court a quo noted that every administrative authority was required, under sections 3 and 5 of the Administrative Justice Act [Chapter 10:28], to act lawfully, reasonably and in a fair manner, without any material error of law or fact. The court further noted that under section 11 of the Criminal Procedure and Evidence Act [Chapter 9:07] the Attorney-General acts through public prosecutors who represent him and are subject to his instructions. However, the withdrawal of his instructions did not terminate their relationship and they remained employed by the Public Service Commission as prosecutors until they were discharged.

The court held that the appellant committed a material error of law by withdrawing his authority to prosecute and referring the respondents to the Public Service Commission for further processing according to law. The proper procedure was to suspend the respondents pending a full inquiry, leading either to their discharge from the Public Service Commission or their full reinstatement. Accordingly, the letter of 3 November 2011, from the appellant to the respondents, as well as all the consequential instructions issued by his deputies were declared to be null and void and were set aside. The court ordered that the respondents should be restored to their positions without any loss of rights….,.

Grounds of Appeal

The grounds of appeal herein are confined to the declaratory orders of the court a quo nullifying the appellant's letter and the consequential instructions. They do not challenge or impugn the decisions of the court pertaining to its jurisdictional competence or the reviewability of the actions of the Attorney-General qua administrative authority. Indeed, at the hearing of this matter, counsel for the appellant, unreservedly accepted this inherent power of review vested in the superior courts. I have no doubt that this position is correct and incontrovertible. The only possible qualification is that the courts cannot usurp the functions of the administrative authority and must limit the exercise of their review powers to ensuring that the authority's conduct is legal, rational and procedural, viz. in accordance with due process.

See Affretair (Pvt) Ltd & Another v MK Airlines (Pvt) Ltd 1996 (2) ZLR 15 (S)…, and the more recent decision of this Court in Telecel Zimbabwe (Pvt) Ltd v Attorney-General N.O. SC01-14…,.

The first ground of appeal is that the court a quo erred at law in nullifying the appellant's letter withdrawing the delegated prosecutorial authority given to the respondents. The second ground is that the court erred at law in nullifying the decision of the Deputy Attorney-General and the Acting Director of Public Prosecutions to stop the respondents from carrying out their prosecutorial duties and using their offices.

The appellant prays that the order of the court a quo be set aside and substituted with an order dismissing the application before it with costs.

Relationship between Attorney-General and Public Prosecutors

It is common cause that the respondents, as is the case with all public prosecutors, are appointed by the Public Service Commission and not by the Attorney-General. It is the Public Service Commission that regulates their terms and conditions of service, including the imposition of disciplinary measures and the termination of their employment. However, insofar as concerns the day-to-day performance of their prosecutorial functions, they are subject to the direction and control of the Attorney-General. In effect, their status is analogous to that of an employee who is engaged by one employer but is temporarily, or periodically, seconded to another. During the tenure of such secondment, he remains susceptible to discharge by the former but is required to comply and carry out his duties in accordance with such instructions as he may receive from the latter.

It is also common cause that section 76(4) of the former Constitution vests the Attorney-General with the power to prosecute criminal matters throughout Zimbabwe. Additionally, section 76(5) empowers the Attorney-General to delegate his prosecutorial authority.

What is contentious in casu is the modality by which he confers that authority and then withdraws the same as may become necessary.

Counsel for the respondents submits that the Attorney-General can only issue public prosecutors with certificates to prosecute but cannot terminate their functions as prosecutors. The issuance of such certificates is effected as a matter of practice rather than as a requirement of the law. Since prosecutors are appointed by the Public Service Commission to work within the Attorney-General's Office, the certificates per se do not confer any prosecutorial status and therefore their withdrawal does not have any legal consequence.

Counsel for the respondents further contends, albeit without any affidavit or other evidence to that effect, that none of the respondents ever received individual certificates to prosecute.

Counsel for the appellant accepts that the Attorney-General, unlike the Director of Public Prosecutions, is specifically excluded from the Public Service. Thus, he is not a Head of Department for disciplinary purposes and therefore cannot suspend any miscreant prosecutor. Nevertheless, all prosecutors are delegates of the Attorney-General and that status is specially conferred by certificates to prosecute. He was unable to indicate whether or not the respondents themselves were given such certificates.

Having regard to the relevant provisions of the Criminal Procedure and Evidence Act [Chapter 9:07], I am inclined to agree with the position taken by counsel for the appellant.

By virtue of section 11(1) of the Criminal Procedure and Evidence Act [Chapter 9:07], all public prosecutors are charged with the duty of prosecuting in the magistrates courts to which they are attached. Proof of such delegation is ordinarily evidenced by a certificate to prosecute signed and issued by the Attorney- General. This is clearly recognised in section 180(1)(g) of the Criminal Procedure and Evidence Act [Chapter 9:07] which enables every accused person to challenge the authority of any prosecutor appearing at his trial, by pleading that he has no title to prosecute. It follows that a certificate to prosecute is a legal requirement that extends to all public prosecutors. It constitutes formal evidence of the Attorney- General's delegated authority to prosecute and its withdrawal or expiry carries the legal effect of terminating that authority.

As I have already indicated, section 76(5) of the Constitution empowers the Attorney-General to exercise his prosecutorial functions under section 76(4) “through other persons acting in accordance with his general or specific instructions.” This position is replicated in section 11(1) of the Criminal Procedure and Evidence Act [Chapter 9:07] which designates public prosecutors as “representatives of the Attorney-General and subject to his instructions.” What emerges, unequivocally, from these provisions, is that public prosecutors carry out their prosecutorial duties as delegates of the Attorney-General and in that capacity are subject to his general or specific instructions. To put it differently, the Attorney-General, as the principal repository of prosecutorial authority, is empowered to supervise, direct, and instruct every public prosecutor in the performance of his functions, and, conversely, the latter is required to obey and comply with every lawful order or instruction given by the former. In the event that a prosecutor fails to carry out his mandate in accordance with any such order or instruction, the Attorney-General is entitled, subject to the dictates of due process, to withdraw the prosecutorial authority delegated to that prosecutor.

This must be so not only as a matter of administrative efficacy but also as a matter of legal principle.

In terms of section 114(1a) of the Constitution, every power conferred by the Constitution includes any other powers that are reasonably necessary or incidental to its exercise. Section 24(1) of the Interpretation Act [Chapter 1:01] provides to the same effect in relation to every power to do any act or thing conferred upon any person or authority under any enactment. In addition, there is the time-honoured common law principle that the power to do or create a particular thing ipso jure encompasses and carries with it the power to undo or abolish that thing. In the words of KOTZE CJ in Brown v Leyds N.O. (1897) 4 OR 17…,:

“The general rule is that the same authority, which introduces anything, may also abolish it, and usually in the same manner. Cuius est instituere eius est abrogare; and naturale est quod libet dissolvi eo modo quo ligatur.”

This general proposition was affirmed in Blankfield v Mining Commissioner of Barberton 1912 TPD 553…, (and by implication on appeal at 558- 559); and in Holden v Minister of the Interior 1952 (1) SA 98 (T)…,.

One final aspect raised by counsel for the respondents concerns the fact that a prosecutor who is divested of his prosecutorial functions can no longer be deployed as a prosecutor.

While this may be inevitable, it is a matter that falls outside the Attorney-General's remit and squarely within the purview of the Public Service Commission. The latter may opt either to institute disciplinary measures against its officer or redeploy him to such other duties as he may be deemed suitable for and qualified to perform.

The Requirements of Due Process

One of the fundamental precepts of natural justice, encapsulated in the maxim audi alteram partem, is the right of every person to be heard or afforded an opportunity to make representations before any decision is taken that might impinge upon his rights, interests or legitimate expectations. This precept of the common law forms part of the larger duty imposed upon every administrative authority to act legally, rationally and procedurally. See Telecel Zimbabwe (Pvt) Ltd v Attorney-General N.O. SC01-14…,.

That common law duty is now codified in section 3(1)(a) of the Administrative Justice Act [Chapter 10:28] as the duty to “act lawfully, reasonably and in a fair manner.” The obligation to act in a fair manner is further expanded in section 3(2) of the Administrative Justice Act [Chapter 10:28] to require the giving of “adequate notice of the nature and purpose of the proposed action” and “a reasonable opportunity to make adequate representations” as well as “adequate notice of any right of review or appeal where applicable.”

It is this statutory duty, in particular, that the respondents invoked in the court a quo to challenge the appellant's actions presently under consideration.

There can be no doubt that the Attorney-General is an administrative authority as defined in section 2 of the Administrative Justice Act [Chapter 10:28] and that he is subject to the requirements of section 3(1)(a) as read with section 3(2) of the Administrative Justice Act [Chapter 10:28].

The crisp question for determination in casu is whether the appellant complied with those requirements by withdrawing, as he did, the authority to prosecute conferred upon the respondents.

In his first missive to each of the respondents, dated 17 October 2011, the appellant took the view that the respondents had failed to conduct themselves with the decorum and integrity expected of public prosecutors. He proceeded to narrate what he regarded to be their “indecorous conduct”, as illustrated in various media reports, and demanded an explanation, in writing, showing cause why he should continue reposing his confidence in them as his representatives practising under his certificate.

In their reply, through the Zimbabwe Law Officers Association, on 24 October 2011, the respondents did not address the specific allegations of misconduct against them. Instead, they took a broad brush approach by stating that their grievance was a labour issue relating to salary discrepancies and that they had no control over utterances made in the media. Subsequently, on 26 and 27 October 2011, their lawyers wrote to the appellant, initially indicating that they would tender their substantive response to each allegation, but then pointedly disputing the legal basis of the appellant's request.

Having been denied any meaningful response, the appellant forwarded his second letter, of 3 November 2011, addressed to each of the respondents, in which he concluded that by ignoring his request for a response within seven (7) days they had admitted all the allegations contained in his earlier letter. He further declared that he could not rely on them as prosecutors and accordingly withdrew their prosecutorial authority with immediate effect.

It is evident from the above correspondence that the respondents had opted, apparently upon advice from their lawyers, to defy the appellant's authority and that he, in turn, was affronted and chagrined, quite understandably so, by that open display of defiance. It is also clear that an employer, whether under a contract of employment or under a secondment arrangement, has the common law right to summarily dismiss an employee who is insubordinate or wilfully disobedient to the extent of undermining or destroying the very core and substratum of their relationship. See National Foods Ltd v Masukusa 1994 (1) ZLR 66 (S)…,. Nevertheless, it seems to me that the appellant reacted with undue haste in casu by immediately withdrawing the respondents' prosecutorial mandate. I take this view for the following reasons;

The allegations against the respondents, as captured in the appellant's first letter to them, are essentially twofold:

(i) That they incited their colleagues to embark on collective job action and refused to call off the illegal strike; and

(ii) That they placed key blockers on their office doors to bar other prosecutors from entering the offices.

Firstly, all of these allegations were premised on miscellaneous media reports attached to the letter. Secondly, they were directed against the respondents generally and not individually. Finally, and more critically, there was no reliable proof of their veracity or any admission by the respondents that they were guilty of the conduct alleged.

In these circumstances, it seems that the appellant took a massive leap from the inchoate letters penned by the respondents and their lawyers to the conclusion that they had admitted all the allegations against them. The appellant made no attempt to substantiate the allegations or have them investigated by means of disciplinary inquiry, as he could have done by instructing the Director of Public Prosecutions, qua Head of Department, to institute disciplinary proceedings in terms of the applicable Public Service Regulations.

As for the unquestionably insurbodinate conduct of the respondents, the appellant was perfectly entitled to withdraw their prosecuting authority as an appropriate and necessary disciplinary measure. However, he could only do so in accordance with the governing tenets of natural justice embodied in section 3 of the Administrative Justice Act [Chapter 10:28]. The respondents are professionals engaged in the business of prosecuting criminal cases on behalf of the State. They have a legitimate expectation of continuing to prosecute in that capacity and cannot be deprived of the right to do so without just cause. What the appellant should have done, at the very least, is to write to each of the respondents, identifying with greater particularity the specific allegations levelled against them individually, indicating that their open defiance of his authority justified the withdrawal of their prosecutorial mandate, and warning that he intended to withdraw that mandate unless they were able to persuade him otherwise.

In the event, the unavoidable conclusion is that the appellant acted precipitately and in breach of the requirements of section 3 of the Administrative Justice Act [Chapter 10:28]. I take the view that a strict standard of compliance with those requirements was expected of him in his dealings with the respondents, particularly in his capacity as the legal supremo of the Government at the relevant time.

In the result, the unanimous decision of the Court is that the order granted by the High Court cannot be faulted and must be upheld, albeit for reasons that differ to some extent from those expounded by the learned judge a quo….,.

Appropriate Relief or Remedy

Apart from the constitutional declarators that the applicant seeks, he also seeks an order for his immediate release from prison.

As I have already intimated, such an order would not be appropriate in casu, particularly as the facts before this Court do not adequately establish the propriety of immediately releasing the applicant from prison at this juncture. What is first necessary is a full inquiry and report by the Parole Board, having regard to all the relevant factors delineated in section 114 of the Prisons Act [Chapter 7:11], to determine the applicant's aptitude and suitability for release on parole. It would then be a matter for the Parole Board to make such recommendations as it may deem fit and proper and, thereafter, for the Minister, in terms of section 115 of the Prisons Act [Chapter 7:11], to decide whether or not to release the applicant on licence, for such period and subject to such conditions as he may specify.

The challenges to the constitutionality of the relevant provisions of the statute appear to have been motivated by what each applicant said was decreasing public confidence in the programmes broadcast by the Zimbabwe Broadcasting Corporation.

The grounds of the complaints were that the programmes broadcast by the Zimbabwe Broadcasting Corporation tended to be monotonous and of poor quality. The applicants also complained that there is no transparency and accountability in the way the Zimbabwe Broadcasting Corporation uses the funds it gets from the public.

These are concerns which the Zimbabwe Broadcasting Corporation must welcome and take seriously.

There is need to ensure that the managers use the revenue from licence fees to get the best value for money with programming choices. There is need to ensure that the programmes produced and broadcast by the Zimbabwe Broadcasting Corporation are of high quality, challenging, engaging and innovative in accordance with the requirements of Part 1 of the Seventh Schedule to the Broadcasting Services Act [Chapter 12:06].

(e) Have Ministers, Ministry officials, magistrates, public prosecutors, court officials, the police and the military (all being public officials) mentioned in the body of the application and affidavits breached their duties in terms of section 18(1a) of the Constitution to uphold the rule of law and to act in accordance with the law?

This complaint, as elaborated in the submissions, boils down to three complaints, namely –

(a) That the Minister has been issuing offer letters to individuals in respect of land which he acquired in terms of section 16B of the Constitution. He is doing this despite the land being still occupied by former owners;

(b) That the holders of the offer letters have sought, through self-help, to evict the former owners from the acquired land. This has led to conflict between the holders of the offer letters and previous owners; and

(c) That Ministry officials, magistrates, public prosecutors, court officials, the police and the military have not assisted the former owners in the conflict described in para (b), despite the duty imposed on them by section 18(1a) of the Constitution. The applicants contend that the conflict between the holders of the offer letters and the former owners is so widespread and the failure by public officials to assist them in this conflict is so prevalent that the rule of law has been eroded to the extent that the individual applicants are entitled to a moratorium of the land reform programme and other relief sought in the draft order.

The complaint in paragrpah (a) raises the issues of whether the Minister can lawfully issue offer letters to individuals and whether he can lawfully issue offer letters to individuals before the acquired land is vacated. It also raises the issue of the respective rights of the holders of the offer letters and the former owners of the acquired land.

Dealing, firstly, with the issue of whether the Minister has the legal authority to issue an offer letter to an individual. Section 2 of the Gazetted Land (Consequential Provisions) Act [Chapter 20:28], in relevant part, provides as follows:

"2 Interpretation

(1) In this Act –

'lawful authority' means –

(a) An offer letter; or

(b) A permit; or

(c) A land settlement lease;

and 'lawfully authorised' shall be construed accordingly;

'offer letter' means a letter issued by the acquiring authority to any person that offers to allocate to that person any Gazetted land, or a portion of Gazetted land, described in that letter;

'permit', when used as a noun, means a permit issued by the State which entitles any person to occupy and use resettlement land;…,. "

The Legislature, in enacting the above provision, clearly intended to confer on the acquiring authority the power to issue to individuals offer letters which would entitle the individuals to occupy and use the land described in those offer letters. The draftsman could have used better language to convey the legislative intent, but there can be no doubt that section 2 of the Gazetted Land (Consequential Provisions) Act [Chapter 20:28] confers on the acquiring authority the power to allocate land using the medium of an offer letter. This provision is not in any way inconsistent with sections 16A and 16B of the Constitution. If anything, it fits in well with the overall scheme envisaged in sections 16A and 16B of the Constitution, which is that the acquiring authority acquires land and re-allocates the land so acquired. The acquisition of land and its redistribution lies at the heart of the land reform programme.

I have no doubt that the Minister, as the acquiring authority, can redistribute land he has acquired in terms of section 16B of the Constitution by means of the following documents;

(a) An offer letter;

(b) A permit; and

(c) A land settlement lease.  

The Minister is entitled to issue a land settlement lease in terms of section 8 of the Land Settlement Act [Chapter 20:01]. However, if the Minister allocates land by way of a land settlement lease, in terms of section 8 of the Land Settlement Act [Chapter 20:01], he is enjoined to comply with the other provisions of that Act, such as section 9 which requires him to consult the Land Settlement Board which obviously has to be in existence. I do not accept the contention by the applicants that the Minister can only allocate acquired land by way of a land settlement lease, which he presently cannot do, because there is no Land Settlement Board in existence.

The Minister has an unfettered choice as to which method he uses in the allocation of land to individuals.   He can allocate the land by way of an offer letter or by way of a permit or by way of a land settlement lease. It is entirely up to the Minister to choose which method to use. I am not persuaded by the argument that because the offer letter is not specifically provided for in the Constitution it cannot be used as a means of allocating land to individuals.

The authorities point to a number of important considerations that come into play in considering the question of whether or not to set aside proceedings of this nature on the basis of any alleged bias.

The first general consideration is aptly expressed thus in GEO QUINOT's 'Administrative Law: Cases and Materials' Second Edition…,.;

“While it is true that the duty to act fairly and listen to both sides lies upon everyone who decides anything, one should be careful not to treat administrative tribunals as though they were courts of law…,. The test in matters of this nature is whether the hearings were fair when proceedings are judged in their broad perspective.

We should not lose sight of the fact that one is here dealing with disciplinary hearings presided over by largely laymen. Therefore, they cannot be expected to observe all the finer niceties that would have been observed by a court of law. It appears that every effort was made to give the first applicant a fair opportunity to be heard before an impartial tribunal…,.”

Analysis of the judgment in the case of Hamata and Another v Chairperson, Peninsula Technikon Internal Disciplinary Committee and Others 2000 (4) SA 621 (C).

See also Anglo American Farms t\a Boschendal Restaurant vs Konjwayo 1992 13 ILJ 573…,.

THE APPEAL AGAINST THE JUDGMENT OF THE ADMINISTRATIVE COURT

The facts leading to the appeal against the determination of the Media and Information Commission to the Administrative Court have already been set out in some detail. As I have already stated, the Media and Information Commission turned down the application for registration by the applicant on the grounds set out in its determination.

The Commission, in its determination, concluded that the applicant had contravened sections 29, 39, 65, 72 and 79 of the Access to Information and Protection of Privacy Act [Chapter 10:27].

It would appear from the record that the applicant was denied an opportunity to be heard before the Media and Information Commission concluded that it had contravened the above sections of the Access to Information and Protection of Privacy Act [Chapter 10:27]. This is a serious violation of the audi alteram partem principle and a gross irregularity justifying the setting aside of that determination.

The applicant was dissatisfied with the Media and Information Commission's determination and appealed to the Administrative Court. The grounds of appeal advanced before the Administrative Court are set out in the notice of appeal, to that court, which reads as follows:

“1. The respondent is improperly constituted in terms of law, and was, accordingly, unable to lawfully make the decision that it made.

2. The Chairman of the respondent was, and is, hostile and biased towards the appellant and ought not to have participated in any decision relating to the application made by the appellant. His failure to do so deprived the appellant of a fair and proper hearing.

3. The respondent failed to apply the rules of natural justice, and failed to afford the appellant an opportunity to deal with the factual basis upon which the application for registration was refused.

4. The provisions of the Access to Information and Protection of Privacy Act [Chapter 10:27] and the Regulations made thereunder, dealing with the requirement to register and the requirements of registration are unconstitutional, and therefore unlawful.

 5. The provision of the Act relied upon by the respondent, namely, section 76, as one of the grounds for refusing registration is unconstitutional and in breach of section 16 of the Constitution.

6. The Commission erred in finding that the appellant had failed to comply with the provisions of the Act in a (sic) sense that requirement is set out in section 69(1)(a) of the Act.

7. Even if it is correct, as found by the respondent, that Chengetai Zvauya has a previous conviction, the respondent erred in failing to consider the nature of that conviction, the relevance of it to the application of the appellant, and the provisions of section 69 of the Act, and failed to give the appellant an opportunity to be heard on the allegation.

8. The respondent erred in considering that the appellant was a news agency, and accordingly erred in applying section 79(6) of the Act to the appellant.

9. The respondent erred in finding that any person or body who owned the appellant was an association of persons or an organisation whose activities were banned or prohibited by law, and accordingly erred in applying section 65(1)(b) of the Act to the appellant.

10. The decision of the respondent was motivated by political considerations, was made and considered in a mala fide manner, and accordingly did not comply with the law.”

As I have already stated, the determination of the Media and Information Commission was based on the alleged contravention by the applicant of sections 29, 39, 65, 72 and 79 of the Access to Information and Protection of Privacy Act [Chapter 10:27]. It was, therefore, necessary for the Administrative Court to determine the factual basis of the alleged contraventions of the Act. The factual determination was critical because the applicant's entitlement to registration depended on it. In terms of section 66 of the Access to Information and Protection of Privacy Act [Chapter 10:27]…, the applicant cannot, as a matter of law, be registered unless it has complied with the provisions of the Act. Equally, an applicant who has complied with the Act becomes, as a matter of law, entitled to registration and the Commission has no discretion in the matter. Thus, whether or not the applicant had contravened the Access to Information and Protection of Privacy Act [Chapter 10:27], as alleged, was a critical issue that the Administrative Court ought to have determined before granting the order it issued.

The Administrative Court's failure to determine this issue as well as its order directing that the applicant be deemed to be registered, without first satisfying itself that the applicant had complied with the Access to Information and Protection of Privacy Act [Chapter 10:27], constitutes a very serious misdirection. This is particularly so because an applicant's entitlement to registration, or refusal of such registration, is dependent upon its compliance, or non-compliance, with the provisions of the Act.

It must also be stated that the Administrative Court ordered the reconstitution of the Board, not for purposes of exercising its powers, that is, considering afresh the application on the merits and determining whether it should register the applicant, but in order to grant to the applicant a certificate of registration regardless of the merits of the application. The Board was relieved of its duty to determine the question of entitlement to registration because the court had done that for it and concluded that the applicant was entitled to be registered but for a badly or invalidly constituted Board. But the fallacy of this approach by the court is that once the Board was found to have been invalidly constituted its decision or determination of the proceedings was a nullity.

Given this misdirection, and the failure to determine the factual basis of the allegations of non-compliance with the provisions of the Access to Information and Protection of Privacy Act [Chapter 10:27], the Administrative Court had no legal basis to issue the order that it did and that order is hereby set aside.

According to the notice of appeal, the applicant requested for an opportunity to be heard on the issue of non-compliance with the Access to Information and Protection of Privacy Act [Chapter 10:27] and the request was refused.

This…, constitutes a serious breach of the audi alteram partem rule.

Because of this irregularity, the Media and Information Commission's decision refusing to register the applicant cannot stand and should also be set aside. The application should be reconsidered and the applicant should be given an opportunity to be heard on the allegations of non-compliance with the Access to Information and Protection of Privacy Act [Chapter 10:27].

Finally, I wish to make the following observations regarding the three grounds of appeal upon which the Administrative Court sought to set aside the determination of the Media and Information Commission, namely;

(i) Improper constitution of the Commission;

(ii) Ultra vires; and

(iii) Bias.

Improper constitution

It was argued in the Administrative Court, and in this Court, that the Media and Information Commission was not properly constituted in terms of section 40 of the Access to Information and Protection of Privacy Act [Chapter 10:27].

Upon the raising of the issue of the constitution of the Commission, the Administrative Court should have ordered the joinder of the first respondent because, in terms of the Act, the first respondent is responsible for the appointment of the members of the Commission. The first respondent, as the appointing authority, had a substantial interest in a case in which the issue of whether or not the Commission was properly constituted in terms of section 40 of the Access to Information and Protection of Privacy Act [Chapter 10:27] had to be determined. The learned President of the Administrative Court therefore misdirected himself in determining this issue without the first respondent being a party to the proceedings. It is also apparent from the record that the applicant conceded this point in the Chamber application to the Administrative Court in which it sought an order for the execution of its judgment despite the noting of an appeal.

That issue is resolved in favour of the respondent.

Ultra vires

The Administrative Court concluded that the Media and Information Commission had acted ultra vires section 69(2) of the Access to Information and Protection of Privacy Act [Chapter 10:27] in that it had considered an application by the applicant when it had not complied with the Act.

I am satisfied that, on a proper reading of section 69(2) of the Access to Information and Protection of Privacy Act [Chapter 10:27], the legislature intended section 69(2) of the Act to refer to compliance with the formal requirements of the Act which appear ex facie the application itself and not contraventions that emerge during the consideration of the application. The Commission did not err in this case because the application itself complied with the procedural requirement of the Act - section 66(2) of the Access to Information and Protection of Privacy Act [Chapter 10:27] in particular. The alleged contravention of sections 29, 39, 65, 72 and 79 by the applicant can only have emerged during the consideration of the application. These contraventions would not have been apparent on the face of the application.

In the result, the conclusion of the Administrative Court, that the Media and Information Commission acted ultra vires the Access to Information and Protection of Privacy Act [Chapter 10:27] has no legal basis….,.

1….,.

2….,.

3….,.

4. The determination of the Commission in which it refused the applicant registration as a mass media service provider is set aside.

5. The issue of the registration of the applicant, as a mass media provider, is remitted to the Commission for consideration de novo.

I am aware that, in terms of section 222(3) of the Companies Act [Chapter 24:03], the court is entitled to make such order as “it thinks.” 

Section 222(3) of the Companies Act [Chapter 24:03] reads:

“(3) Any person aggrieved by any act or decision of the liquidator may apply to the court, after notice of motion to the liquidator, and therein the court may make such order as it thinks.”

The meaning of the words “as it thinks” must be ascertained from the power the High Court exercises in terms of section 222(3) of the Companies Act [Chapter 24:03].

The court cannot think anyhow. It must think judiciously.

A court thinks judiciously when its thinking is guided by the law. It must think within the parameters of the powers given to it by the law. Section 222(3) of the Companies Act [Chapter 24:03] does not entitle a court to think outside the provisions of the law as set out by statutes and common law. The thoughts of a court must be guided by the facts found proved and the law applicable to such facts.

The applicant should therefore establish a basis for the court to interfere with the decision of the liquidator. If the applicant fails to do so, the court must confirm the decision of the liquidator. If it cannot confirm the decision for some defect in the decision making process it can make an order in terms of its review powers. The court's entitlement to make such order as “it thinks” does not mean it can make any order it thinks fit even if such order cannot be justified by the facts of the case and the law. A court order is a product of the facts of the case and the law applicable to such facts. The court should therefore judiciously make an order as can be justified by the facts and the applicable law.

An application in terms of section 222(3) of the Companies Act [Chapter 24:03] is a review of the decision of an administrative authority.

Such a review should be based on the facts which informed the appellant's decision.

In this case, the court a quo improperly allowed itself to be guided by the application to rectify the mortgage bond. Section 222(3) of the Companies Act [Chapter 24:03] does not entitle the High Court to hear another application, as a court of first instance, for purposes of enabling it to determine a review placed before it.

A review should be confined to the facts on which the administrative authority made its decision. If those facts justify his decision, that should be the end of the inquiry. An application in terms of section 222(3) of the Companies Act [Chapter 24:03] is intended to assess the correctness or otherwise of the liquidator's decision. The reviewing judge should simply determine whether or not the applicant's grievance is based on any errors made by the liquidator.

It cannot be based on things the liquidator had no authority to do and were not in existence when he made the decision against which the application is made.

In determining such applications, courts must exercise judicial deference to the complexity of the task that confronted the administrative authority. In the case of Logbro Properties CC v Bedderson N.O. & Ors 2003 (2) SA 460 (SCA)…, CAMERON JA commented on judicial deference as follows;

“It is in just such circumstances that a measure of judicial deference is appropriate to the complexity of the task that confronted the committee. Deference in these circumstances has been recommended as -

'(i) …, a judicial willingness to appreciate the legitimate and constitutionally ordained province of administrative agencies;

(ii) To admit the expertise of those agencies in policy-laden or polycentric issues;

(iii) To accord their interpretation of fact and law due respect; and

(iv) To be sensitive, in general, to the interests legitimately pursued by administrative bodies and the practical and financial constrains under which they operate.

This type of deference is perfectly consistent with a concern for individual rights and a refusal to tolerate corruption and maladministration. It ought to be shaped not by an unwillingness to scrutinize administrative action, but by a careful weighing up of the need for…, and the consequences of…, judicial intervention. Above all, it ought to be shaped by a conscious determination not to usurp the functions of administrative agencies; not to cross over from review to appeal.

 I agree.

The conclusion is unavoidable that the committee in 1997 acted unimpeachably in considering that the increase in property values might point away from immediate disposal of the property, and, albeit for somewhat different reasons, I agree with SKWEYIYA J's conclusion.'”…,.

In this case, the court a quo set aside the decision of the appellant because it factored in its own power to rectify the mortgage bond which informed the appellant's decision. The court a quo thus took into consideration factors which the appellant could not have taken into consideration. It failed to defer to the dictates of the facts which the appellant had to consider in arriving at the decision he did. It failed to confine itself to its review powers. It thus went beyond the reviewing of the appellant's decision and relied on its own power to rectify the mortgage bond.

Procedurally, an application in terms of section 222(3) of the Companies Act [Chapter 24:03] should not have been considered alongside an alternative application for rectification as its purpose is to inquire into the correctness or otherwise of the provisional liquidator's decision and not to interfere with a decision duly and honestly made within the appellant's discretion.

In the South African case of Shidiack v Union Government (Minister of the Interior) 1912 AD 642 INNES ACJ…, said:

“Now it is settled law that where a matter is left to the discretion or the determination of a public officer, and where his discretion has been bona fide exercised or his judgment bona fide expressed, the Court will not interfere with the result…, and if he has duly and honestly applied himself to the question which has been left to his discretion, it is impossible for a court of law either to make him change his mind or to substitute its conclusion for his own. This doctrine was recognised in Moll vs Civil Commissioner, Pearl (14 S.C., at p. 468); it was acted upon in Judes vs Registrar of Mining Rights (1907, T.S., p 1046); and it was expressly affirmed by this Court in Nathalia vs Immigration Officer (1912, A.D. 23).

There are circumstances in which interference would be possible and right.

If, for instance, such an officer had acted mala fide or from ulterior and improper motives; if he had not applied his mind to the matter or exercised his discretion at all; or if he had disregarded the express provisions of a statute. In such cases, the Court might grant relief. But it would be unable to interfere with a due and honest exercise of discretion - even if it considered the decision inequitable or wrong.”

The appellant's decision is not afflicted by any of the factors mentioned above. It took into consideration the facts of the case as they were at concursus creditorium and correctly determined the first respondent's status at law.

The appellant had no option but to declare the first respondent a concurrent creditor. The facts of the case and the law demanded it. The rectification of the bond by the court a quo to justify interference with the appellant's decision confirms it. There would otherwise have been no need to rectify the bond. The appellant's decision to rank the first respondent as a concurrent creditor of Archer Clothing Manufacturers (Pvt) Ltd is therefore correct.

The court a quo therefore erred when it set aside a decision the appellant correctly and lawfully made.

The same result would, in my view, have been more directly arrived at if the parties had realised that the High Court exercises civil review powers in terms of secions 26, 27 and 28 of the High Court Act [Chapter 7:06], sections 2, 4 and 5 of the Administrative Justice Act [Chapter 10:28] and common law. 

We were unfortunately not addressed on them. I therefore can only comment, in passing, on the effect they could have had on this case.

Section 26 of the High Court Act [Chapter 7:06] grants the court power, jurisdiction, and authority to review all proceedings and decisions of all inferior courts of justice, tribunals and administrative authorities within Zimbabwe.

Section 27 of the High Court Act [Chapter 7:06] provides for the following grounds of review:

“(a) Absence of jurisdiction on the part of the court, tribunal or authority concerned;

(b) Interest in the cause, bias, malice or corruption on the part of the person presiding over the court or tribunal concerned or on the part of the authority concerned, as the case may be;

(c) Gross irregularity in the proceedings or the decision.”

Subsection (2) saves reliance on “any other law relating to the review of proceedings or decisions of inferior courts, tribunals or administrative authorities.”

Section 28 of the High Court Act [Chapter 7:06] provides for the court's powers on review as follows:

“On a review of any proceedings or decision, other than criminal proceedings, the High Court may, subject to any other law, set aside or correct the proceedings or decision.”

The court's power does not include the hearing of another application by the High Court to enable it to determine the correctness or otherwise of the case under review.

Section 2(d) of the Administrative Justice Act [Chapter 10:28] defines 'administrative authority' as:

“(d) Any other person or body authorised by any enactment to exercise or perform any administrative power or duty; and who has the lawful authority to carry out the administrative action concerned.”…,.

Section 2(d) of the Administrative Justice Act [Chapter 10:28] therefore brings the appellant, who is authorised by the Companies Act [Chapter 24:03] to exercise and perform administrative duties, within the meaning of 'administrative authority.'

The High Court's authority to review administrative decisions is regulated by section 4 of the Administrative Justice Act [Chapter 10:28] which provides as follows:

“(1) Subject to this Act, and any other law, any person who is aggrieved by the failure of an administrative authority to comply with section three may apply to the High Court for relief.

(2) Upon an application being made to it in terms of subsection (1), the High Court may, as may be appropriate –

(a) Confirm or set aside the decision concerned;

(b) Refer the matter back to the administrative authority concerned for consideration or re-consideration;

(c) Direct the administrative authority to take administrative action within the relevant period specified by law or, if no such period is specified, within a period fixed by the High Court;

(d) Direct the administrative authority to supply reasons for its administrative action within the relevant period specified by law or, if no such period is specified..., within a period fixed by the High Court;

(e) Give such directions as the High Court may consider necessary or desirable to achieve compliance by the administrative authority with section three.

(3 Directions given in terms of subsection (2) may include directions as to the manner or procedure which the administrative authority should adopt in arriving at its decision and directions to ensure compliance, by the administrative authority, with the relevant law or empowering provision.

(4) The High Court may, at any time, vary or revoke any order or direction given in terms of subsection (2).”

It should be noted that the court's power does not include the hearing and determining of a separate issue by the reviewing court to enable it to review the decision of the administrative authority.

Section 5 of the Administrative Justice Act [Chapter 10:28] limits the ambit of things the High Court must take into consideration as follows:

“For the purposes of determining whether or not an administrative authority has failed to comply with section three, the High Court may have regard to whether or not -

(a) The administrative authority has jurisdiction in the matter;

(b) The enactment under which the action has been taken authorises the action;

(c) A material error of law or fact has occurred;

(d) A power has been exercised for a purpose other than that for which the power was conferred;

(e) Fraud, corruption or favour or disfavour was shown to any person on irrational grounds;

(f) Bad faith has been exercised;

(g) A discretionary power has been improperly exercised at the direction, behest or request of another person;

(h) A discretionary power has been exercised in accordance with a direction as to policy without regard to the merits of the case in question;

(i) A power has been exercised in a manner which constitutes an abuse of that power;

(j) The action taken is so unreasonable that no reasonable person would have taken it;

(k) There is any evidence or other material which provides a reasonable or rational foundation to justify the action taken;

(l) An irrelevant matter has been taken into account;

(m) A relevant matter has not been taken into account;

(n) A breach of the rules of natural justice, where applicable, has occurred;

(o) The procedures specified by law have been followed;

(p) Any departure from the requirements of section three is in the circumstances reasonable and justifiable.”

Section 5 of the Administrative Justice Act [Chapter 10:28] thus limits the issues the High Court can consider in reviewing the 'administrative authority's' decision. It includes, and adds to considerations mentioned in the case of Shidiack v Union Government (Minister of the Interior) 1912 AD 642.

It does not allow the court a quo to hear and determine an issue not raised before the administrative authority and use such decision to invalidate the administrative authority's decision.

The term “Wednesbury unreasonableness” refers to one of the common law grounds of judicial review of administrative action as formulated in the case of Associated Provincial Picture Houses Ltd v Wednesbury Corporation (1948) 1 KB 223.

Ex Tempore

This is the unanimous decision of the court.

This is an appeal against a judgment of the High Court dated 3 May 2017 dismissing the appellant's application for a declaratur to the effect that Statutory Instrument 122/2013 is ultra vires the Posts and Telecommunications Act [Chapter 12:05] and should therefore be declared invalid, null and void.

The brief facts are that the appellant is in the business of providing internet services. The first respondent is the regulator of such providers in that industry. The appellant was issued with a draft “IAP” class A licence thus giving it an opportunity to apply for a class “A” licence. In terms of S.I.122 of 2013. The fees for a class “A” licence are US$5,500,000= to cover a period of fourteen (14) years. In terms of the Regulations (S.I.122 of 2013) and the Postal and Telecommunications Act, the licence fees should be paid on or before issuance or renewal of a licence.

The Postal and Telecommunications (Licence Registration and Certification) (Amendment) Regulations, 2013 (No.6) (S.I.122 of 2013) were promulgated by the third respondent in consultation with the first respondent.

The appellant was unable to raise the fees required for the class “A” licence that it wanted. It wrote to the first respondent and proposed a payment plan. The payment plan was rejected by the first respondent which insisted that all fees must be paid before or at the time that a licence is issued or renewed. This prompted the appellant to approach the High Court seeking, inter alia, an order that the Statutory Instrument, S.I. 122/2013, prescribing fees for Internet Access Provider licences be declared ultra vires the Posts and Telecommunications Act and therefore invalid, null and void.

In determining the matter, the court a quo held that the appellant should have proceeded in terms of an application for review under Order 33 of the High Court Rules. Having so found, the court a quo did not proceed to determine this matter on the merits.

We are persuaded by the appellant's contentions that its application before the High Court did not have to be filed in terms of Order 33.  Rather, it was properly filed in terms of section 4(1) of the Administrative Justice Act [Chapter 10:28] and section 14 of the High Court Act [Chapter 7:06].

This court has, in any case, held that a litigant challenging the decision of an administrative authority may properly do so through an application, though not filed in terms of Order 33 of the High Court Rules.

We find, accordingly, that the High Court should not have declined to determine the matter on the merits.

Counsel for the appellant urged this court to nevertheless determine the matter on the merits based on the evidence on record.

This court, as a Court of Appeal, cannot usurp the functions of the court a quo and make a decision on the merits of the matter when the court a quo declined to do so. That being the case, the correct course of action for this court to take is to remit the matter to the court a quo for it to determine this issue on the merits.

On this basis, the court upholds the appellant's grounds of appeal numbers 1, 2 and 3. Grounds of appeal numbers 4 and 6, in our view, relate to the merits of the dispute and in view of our finding on the procedural issue, become irrelevant.

As far as the appellant's ground of appeal number 5 is concerned, we find that there is merit in the contention by the appellant that it is a service provider in the Internet Access Provider industry while the first respondent is the regulator of service providers in the same industry. Further, that since the concern of the appellant is that there was unfairness and irregularity in the exercise by the regulator of its authority in this respect, it had a legal right and sufficient interest in the matter, entitling it to approach the court a quo as it did.

In the result, it is ordered as follows:-

1. The appeal be and is hereby allowed with costs.

2. The judgment of the court a quo is set aside in its entirety.

Counsel for the first respondent further argued that an administrative authority's discretion cannot be interfered with absent a reviewable irregularity.

The defendants contended that the plaintiffs had been expelled from the Harare Municipal Workers Union. They relied on the first defendant's two letters aforesaid. The one addressed to the first plaintiff read as follows:

“RE: EXPULSION FROM THE HMWU MEMBERSHIP - MR J MAKARUDZE HM NO.405043…,.

This is to advise that the HMWU resolved to expel you from HMWU structures and membership with effect from 23^rd May 2011 due to the fact that you took the Union to the Court over an internal matter without following the normal procedure due to your enjoinment with M Munondo of Public Safety Dept.

You are, and were, aware that the issue of the Executive Chairman was a result of the resolution of the HMWU National Council which is Congress in between Congress of which you were party. You were, and are, also aware that the same meeting resolved that the Elections would be held pending Conclusion of the Executive Chairman's case vs City of Harare. You were also aware that the City of Harare, following the Labour Court Case involving 75 HMWU representatives of the National Council of which the Employer intended to dismiss them on the ground that they had participated in a job action allegedly against partly the dismissal of the HMWU Executive Chairman.

You are also aware that your name and that of Munondo did not appear on the list of HMWU Workers leaders the employer intended to dismiss although you were present at Town House and the employer did not include your 2 names due to your relationship with the same which is against the HMWU and its member. You are also aware of the striking similarities between your present High Court Case No. 4406/11 and the employer's Supreme Court Appeal in Case No. LC/ORD/H/29/10 wherein the employer is opposing the Labour Court Judgement hence this confirms your close relationship contrary to the HMWU ethics and that you are raising similar allegations against the HMWU as those of the employer.

You are also aware that a meeting was held at the Union Office wherein the issue of elections was raised by your colleagues and you also advised that since we have a pending case with the City of Harare it was only logical that we defer the HMWU Supreme Union Committee elections and request our lawyers to advise us on the issues jointly, i.e., election for HMWU Supreme Union Committee and Congress.

The Union also learnt that you are party of the people against the HMWU yet you are aware that as a democratic organization we have internal structure which deal with members concerns….,.”

The other letter addressed to the second plaintiff read:

“RE: EXPULSION FROM THE HMWU MEMBERSHIP - MR M MUNONDO HM NO.607851…,.

The HMWU hereby advises you that it resolved to expel you from the Union membership with effect from 23^rd May 2011.

This is due to the fact that without the locus standi you have deliberately defied the Union by initially requesting for the HMWU validation from the employer for the purpose of creating a parallel structure to the HMWU being HM 2. Secondly, you took the HMWU to court over an internal matter which ought to have been addressed internally since you are aware of the procedures thereof.

You are also aware of the Labour Court Case as regards the intended dismissal of 75 workers leaders of which the Union won the case at the Labour Court LC/ORD/H/29/10 and the employer subsequently appealed and strange enough your name did not appear on the list because of your close relationship with the employer and the similarities between your High Court Case No. 4406/11 and the employer's Supreme Court appeal are not a coincidence….,.”

The first defendant's letters were patently a dog's breakfast.

Demonstrably, they were self-serving. The first defendant was being vindictive against the plaintiffs for having sued him. By whose authority had the plaintiffs' been expelled? In terms of what procedure? The plaintiffs maintained that no hearings had ever been held to try them.

The defendants had no answer to this.

In any event, in May 2011 there was no office within the Harare Municipal Workers Union known as 'Executive Chairman.' That position was created by the new Constitution that was registered only in December 2013. Furthermore, even if I were to recognise the alleged election of the new Executive Committee of the Harare Municipal Workers Union in 2012, which the plaintiffs maintained they did not, the question of the first defendant's eligibility to come back into office in any capacity, let alone as Chairman of the Executive Committee of the Harare Municipal Workers Union, very much hung in the balance by reason of his dismissal from employment with Harare City Council.

The background of the matter is that between 2006 and 2009, the first defendant authorised the second defendant to use Dagbreek Farm, Nyazura, as a Distribution Centre for food to needy villagers in the area.

The plaintiff said she was neither consulted nor informed about the decision by the first defendant; she just saw the second defendant coming to her farm to distribute food and villagers from surrounding villages converged on her farm to receive the food. Her evidence was that throughout this period, she moved from office to office to get help on this issue because her property was being vandalised by people who were coming to the farm during the distribution, with some remaining on the farm thereafter. Her evidence was that she sought intervention from the councillor for her area, Minister Muchinguri, former Minister Mutasa, and the Ministry of Lands, but without success. She said she approached the second defendant in Harare, in Mutare and even sent a letter to the second defendant's headquarters in Geneva, but no steps were taken to alleviate the challenges she was facing on the property because of the people coming to the farm as a result of the food distribution. She said eventually, after narrating the degree of her losses, the Ministry of Lands advised her to go to court. Upon receiving this advice from the Ministry of Lands, she wrote a letter to the second defendant, as the Distributor at her farm, holding it accountable for the destruction of her property on the farm. She received a reply, not from the second defendant, but from the first defendant, on 14 December 2011. That letter absolved the second defendant from any wrongdoing and the letter confirmed that Dagbreek Farm was a Distribution Centre and that the first defendant had authorised the second defendant to use Dagbreek Farm as a Distribution Centre.

The plaintiff said that was the first time that she got to know that the first defendant was involved.  Although she had engaged the Councillor of her area; that Councillor never told her that in fact the designation of her farm as a Distribution Centre was a Council decision.

Thereafter, the plaintiff issued summons against both the first and the second defendants for the amounts claimed.

She gave evidence on the damage she sustained on the property which included thefts of cattle, and interference with the Zimbabwe Electricity Supply Authority (ZESA) equipment and failed crops caused by a failure to irrigate owing to the vandalism of ZESA equipment. She said at one point she lost 35 head of cattle on one day and they were never recovered. Her evidence of the missing cattle was corroborated by Lovemore Ngwenya, a neighbour, who was questioned by the police on the issue.

She said the first defendant should not have authorised the use of her farm because there were other public areas suitable for the purpose, like Folkington Primary School which has been used as a polling station previously. Her evidence that Folkington Primary School could have been used instead of her farm was corroborated by Lovemore Ngwenya who was the School Development Association Chairperson since 2007. Her evidence was that by using her farm, the first defendant opened it up to thefts and vandalism which continue up to the present day because the very act of designating the farm as a Distribution Centre made people believe that the farm had been repossessed by the State and was now “no man's land” as it were and people were doing as they pleased on the farm. She produced a bundle of documents full of invoices and receipts explaining the actual damage she suffered as a result of the vandalism and said what she claimed in the summons was actually less than the loss.

Two witnesses were called to corroborate her evidence on the distribution point in the farm, the missing cattle and failed crops and the plaintiff's case was closed.

The first defendant applied for absolution from the instance.

The court then invited both parties to make written submissions on the application. The court received submissions from both parties. I have had occasion to consider the pleadings, the evidence led on behalf of the plaintiff and the submissions from the parties.

Both the plaintiff and the first defendant referred to the case of Supreme Service Station 1969 (Pvt) Ltd v Fox and Goodridge (Pvt) Ltd 1971 (1) RLR 5 (A) where BEADLE CJ stated as follows:-

“The test therefore, boils down to this; is there sufficient evidence on which a court might make a reasonable mistake and give judgment for the plaintiff?”

BEADLE CJ went further and said:-

“- rules of procedure are made to ensure that justice is done between the parties, and, so far as possible courts should not allow rules of procedure to be used to cause an injustice…,.”

In this instance, we have the plaintiff saying the first defendant authorised use of her farm and did not do anything to avert the plunder and destruction of her property. This assertion is corroborated by the first defendant's own letter to the plaintiff dated 14 December 2011. In that letter, the first defendant confirms authorising the use of Dagbreek Farm. It calls it “Dagbreek Distribution Point” and confirms that Dagbreek Farm was a Distribution Centre. There is no mention of any servitude at all. The letter confirms authorising use of Dagbreek Farm - then denies any vandalism.

The fact that the first defendant, in its plea, says it authorised use of a servitude, and, in its submissions, calling for absolution after hearing the plaintiff's evidence on the issue it maintains that it authorised use of the servitude and not the whole farm means there is a dispute of fact on which land or part of land the first defendant authorised. It is only fair that the first defendant be called upon to give evidence on this issue, so that the court has all evidence before it makes a final determination. I am fortified in this view by what BEADLE CJ said in Supreme Service Station 1969 (Pvt) Ltd v Fox and Goodridge (Pvt) Ltd 1971 (1) RLR 5 (A) referred to by both parties. On pp 5-6 of the report, the court said;

“If the defence is peculiarly within the knowledge of a defendant, and the plaintiff has made out some case to answer, the plaintiff should not lightly be deprived of his remedy without first hearing what the defendant has to say. A defendant who might be afraid to go into the box should not be permitted to shelter behind the procedure of absolution from the instance.”

As regards the issue of what land or part of land was authorised, the first defendant is the only one in the know. It is the one which authorised the use. At this stage, the court does not even know the form of the authorisation. It is only fair that the first defendant testifies on that issue for it to be properly ventilated.

A related matter is the number of times the distribution was done.

WHETHER THE AUDI ALTERAM PARTEM RULE HAD BEEN VIOLATED

The audi alteram partem rule holds that a man shall not be condemned without being given a chance to be heard in his own defence. The rule is so basic to jurisprudence that, as EBRAHIM J said, in Dube v Chairman, Public Service Commission & Anor 1990 (2) ZLR 181 (H), it is often termed a rule of natural justice.

The rule implores public officials, judicial, and quasi-judicial officers, and, really, anyone entrusted with the power to make decisions or the power to take action affecting others adversely, to exercise such powers fairly. Fairness is the overriding consideration.

The legitimate expectation doctrine is an extension of the audi alteram partem rule. In England, in the case of Schmidt and Anor v Secretary of State for Home Affairs [1969] 1 All ER 904 (CA), LORD DENNING MR said…,:

“…, an administrative body may, in a proper case, be bound to give a person who is affected by their decision an opportunity of making representations. It all depends on whether he has some right or interest, or, I would add, some legitimate expectation, of which it would not be fair to deprive him without hearing what he has to say.”…,.

Later on, in 1971, LORD DENNING had this to say in Breen v Amalgamated Engineering Union and Ors [1971] 1 All ER 1148…,:

“It is now well settled that a statutory body, which is entrusted by a statute with a discretion, must act fairly. It does not matter whether its functions are described as judicial or quasi-judicial on the one hand, or as administrative on the other hand, or what you will. Still, it must act fairly. It must, in a proper case, give a party a chance to be heard…,.”…,.

The doctrine is also part of the South African law; see Administrator, Transvaal and Ors v Traub and Ors 1989 (4) SA 731.

In Zimbabwe, it is firmly entrenched in our law; see Health Professions Council v McGowan 1994 (2) ZLR 392 (S); Taylor v Minister of Higher Education & Anor 1996 (2) ZLR 772 (S); and Kanonhuwa v Cotton Co. of Zimbabwe 1998 (1) ZLR 68 (H) among others.

In Health Professions Council v McGowan 1994 (2) ZLR 392 (S), GUBBAY CJ stated as follows…,:

“In short, the legitimate expectation doctrine, as enunciated in Traub, simply extended the principle of natural justice beyond the established concept that a person was not entitled to a hearing unless he could show that some existing right of his had been infringed by the quasi-judicial body…,. Fairness is the overriding factor in deciding whether a person may claim a legitimate entitlement to be heard…,.”…,.

See also Affretair (Pvt) Ltd & Anor v MK Airlines (Pvt) Ltd 1996 (2) ZLR 15 (S), per McNALLY JA…,.

Thus, administrative decisions such as the one made by the Minister in the present case when he issued the withdrawal letter, are reviewable by this court.

An administrative decision made in violation of natural justice can be set aside - especially if it is to be implemented immediately. In Health Professions Council v McGowan 1994 (2) ZLR 392 (S), the learned CHIEF JUSTICE said…,:

“The general rule is that once a decision has been reached, in violation of natural justice, even if it has not been implemented, a subsequent hearing will be no meaningful substitute. The prejudicial decision taken will be set aside as procedurally invalid. In this way, the human inclination to adhere to the decision is avoided.”…,.

In the present case, not only was the Minister's decision reached in violation of natural justice but also it was to be implemented immediately. I accept that when the applicant instituted Case 2, the Minister was still to respond to his representation. However, as stated in Health Professions Council v McGowan 1994 (2) ZLR 392 (S), a subsequent hearing would be no meaningful substitute.

There may be situations where the court might accept an administrative decision taken in violation of natural justice where for, instance, a statute authorises an ex parte action by the administrative authority in an emergency or where there is a sufficient interval between the decision and its implementation during which there is a fair hearing. In Sachs v Minister of Justice, Diamond v Minister of Justice 1934 AD 11, whilst dealing with the statutory exclusion of the audi alteram partem rule in certain situations, STRATFORD ACJ said…,:

“Sacred though the maxim is held to be, Parliament is free to violate it. In all cases where, by judicial interpretation, it has to be invoked, this has been justified on the ground that the enactment impliedly incorporated it. When on the interpretation of the Act, the implication is excluded, there is the end of the matter.”

In Health Professions Council v McGowan 1994 (2) ZLR 392 (S), the learned CHIEF JUSTICE stated…,:

“The exceptions to the rule are set out by PROFESSOR BAXTER in his work on Administrative Law at pp 587–588, as follows:

'(i) Where a statute authorises emergency, ex parte action, it might be implicit in the statute that, unless natural justice is excluded altogether, a hearing need only be given after the decision is taken. If there is no urgency, however, the court will require natural justice to be observed beforehand.

(ii) A court may accept as sufficient compliance with natural justice a hearing held after the decision has been taken where:

(a) There is a sufficient interval between the taking of the decision and its implementation to allow a fair hearing;

(b) The decision-maker retains a sufficient open mind to allow himself to be persuaded that he should change his decision;

(c) The affected individual has not thereby suffered prejudice.

These are concessions to the demands of administrative efficiency, but they are limited. A hearing held after the decision can only be acceptable if, in all the circumstances, it was sufficiently fair as to have the effect of 'curing' the failure to hold one before.'”..,.

The “…, human inclination to adhere to [one's] decision…,” referred to by the learned CHIEF JUSTICE in Health Professions Council v McGowan 1994 (2) ZLR 392 (S) was probably aptly demonstrated in this case.

In his letter of 24 December 2011, aforesaid, the Minister simply stuck to his earlier decision and his earlier position that the applicant could not have the property because it was owned by an indigenous entity.

In the withdrawal letter, the Minister alleged that the withdrawal was in terms of the conditions of offer attached to the offer letter. The offer letter itself reserved to the Minister the right to withdraw or change the offer if he deemed it necessary or if the applicant was in breach of any of the set conditions. The set conditions must have been those at the back of the letter. They were these:

(1) The applicant was to take up personal and permanent residence on the property or, within 3 months of the acceptance of the offer letter, appoint a manager to personally and permanently stay there.

(2) The acceptance of the offer had to be communicated to the Minister within 30 days of the receipt of the offer letter.

(3) Developments on the property had to be initiated in accordance with the 5 year development plan submitted with the application.

(4) The applicant could not, in any way, part with possession of the property, for example, by way of cession, lease or assignment of rights, or sub-letting, without the Minister's prior written consent.

(5) The applicant had to comply with all the provisions of the Agricultural Land Resettlement Act [Chapter 20:01] pertaining to the leasing of State land, and, in addition, any special conditions which the Minister might impose.

(6) The applicant had to comply with any laws requiring the grant of any servitude over the property.

(7) The onus to notify the Minister of any change of address lay with the applicant whose failure to do so would absolve the Minister of responsibility over any misdirected mail.

(8) On it being established that the applicant had taken occupation of the property, a 99 year lease would be prepared for the applicant's signature.

It was common cause that the Minister's withdrawal letter was not motivated by any breach of the conditions of offer by the applicant. At any rate, in his withdrawal letter, the Minister did not specify any such condition as may have been breached by the applicant. That can only mean that the Minister withdrew the offer letter on the basis that the letter itself had reserved to him the right to do so if he deemed it necessary. His in-house counsel confirmed as much. In the one explanatory letter of 27 June 2011, to the applicant, she wrote:

“It is the Acquiring Authority's prerogative to issue offer letters and withdraw them where it deems necessary.”…,.

But, as I have already mentioned, in doing so, the Minister had to observe the rules of natural justice.

Furthermore, and at any rate, in Masunda v Minister of State for Land & Anor 2006 (2) ZLR 72 (H), this court, BERE J, held that the Agricultural Land Settlement Act [Chapter 20:01], which regulates the allocation of land, does not give the Minister unilateral powers to withdraw offer letters to beneficiaries of the land reform programme. The learned judge went on to state that it is a very basic tenet of administrative law that before a decision is taken that adversely affects another person, the affected individual has to be given an opportunity to be heard.

In the premises, I find that the Minister violated the audi alteram partem rule when he withdrew the offer letter….,.

WHETHER THERE WAS A BREACH OF THE ADMINISTRATIVE JUSTICE ACT

In my view, the Administrative Justice Act [Chapter 10:28] is an elaborate restatement of the rules of natural justice. In the case of Zindoga & Ors v Minister of Public Service, Labour and Social Welfare & Anor 2006 (2) ZLR10 (H), PATEL J…, said…,:

“It is axiomatic that any party who has a right or interest that is likely to be affected by an administrative decision or which is susceptible to being prejudiced thereby must be heard before that decision is taken. This is dictated by the time honoured precept of the common law embodied in the audi alteram partem rule and now codified in the Administrative Justice Act [Chapter 10: 28].”…,.

In substance, the Administrative Justice Act [Chapter 10:28] behoves an administrative authority to observe the rules of natural justice whenever it makes an administrative decision or takes an administrative action adverse to vested rights or legitimate expectations….,.

My view is that the Minister is undoubtedly an “administrative authority” within the meaning of that expression as defined in terms of section 2 of the Administrative Justice Act [Chapter 10:28]. His withdrawal letter was an 'administration action'. Section 2 of the Administrative Justice Act [Chapter 10:28] defines these terms as follows:

“2 Interpretation and application

(1) In this Act –

“administration action” means any action taken or decision made by an administrative authority…,.”

“administrative authority” means any person who is –

(a) An officer, employee, member, committee, council, or board of the State or a local authority or parastatal; or

(b)…,.

(c) Any other person or body authorised by any enactment to exercise or perform any administrative action concerned;”

Section 3 of the Administrative Justice Act [Chapter 10:28] reads:

“3 Duty of administrative authority

(1) An administrative authority which has the responsibility or power to take any administrative action which may affect the rights, interests or legitimate expectations of any person shall –

(a) Act lawfully, reasonably, and in a fair manner; and

(b) Act within the relevant period specified by law or, if there is no such specified period, within a reasonable period after being requested to take the action by the person concerned; and

(c) Where it has taken the action, supply written reasons therefor within the relevant period specified by law or, if there is no such specified period, within a reasonable period after being requested to supply reasons by the person concerned.

(2) In order for an administrative action to be taken in a fair manner as required by paragraph (a) of subsection (1), an administrative authority shall give a person referred to in subsection (1) –

(a) Adequate notice of the nature and purpose of the proposed action; and

(b) A reasonable opportunity to make adequate representation; and

(c) Adequate notice of any right of review or appeal, where applicable.

(3) An administrative authority may depart from any of the requirements referred to in subsection (1) or (2) if –

(a) The enactment under which the decision is made expressly provides for any of the matters referred to in those subsections so as to vary or exclude any of their requirements; or

(b) The departure is, under the circumstances, reasonable and justifiable, in which case the administrative authority shall take into account all relevant matters, including –

(i) The objects of the applicable enactment or rule of common law;

(ii) The likely effect of its action;

(iii) The urgency of the matter or the urgency of acting thereon;

(iv) The need to promote efficient administration and good governance;

(v) The need to promote the public interest.”

In my view, the Minister breached section 3 of the Administrative Justice Act [Chapter 10:28] in relation to the manner the withdrawal letter was issued. In particular, he failed to comply with paragraph (a) of subsection (1) and subsection (2). He failed in his duty to act in a fair manner; he failed to give the applicant any notice of the nature of his action and he gave the applicant no opportunity to make adequate representations before he implemented his decision, let alone before making it.

As I have observed, the Administrative Justice Act [Chapter 10:28] is a codification of the rules of natural justice as they relate to the area of Administrative Law. Therefore, the factors that are relevant to the considerations of the common law rules of natural justice would all, or largely, apply to considerations of the duties of public bodies under the Administrative Justice Act [Chapter 10:28].

In this case, I find that there were no factors that would exempt the Minister from compliance in terms of subsection (3) of section 3 of the Administrative Justice Act [Chapter 10:28]….,.

1. The decision by the first respondent in HC9527/2001, who is also the third respondent in HC601/2011, and his letter to the applicant dated 24 June 2011 purporting to withdraw the offer letter dated 7 August 2006 to the applicant in respect of the property situate in Goromonzi District, Province of Mashonaland East, called Subdivision 1 of the Remaining Extent of Stuhm, measuring approximately 534 hectares are hereby set aside.

Constitutions all over the planet place constraints on the exercise of public power for obvious reasons.

If left unchecked, Executive power can be cause for nightmare to the citizenry. BAXTER and HOEXTER could not have put it in a clearer way when they noted:

“The grandnorm of the Administration Law is to be found in the principles of the Constitution.”

Furthermore, the first respondent explained why it did not proceed with the applicant's registration.

Within a period of one month of the date set in the first respondent's Forfeiture Notice for any possible revocation of the forfeiture, namely, 27 September 2016, the second respondent had filed its objection, namely, on 28 October 2016 as aforesaid. That date was within ten days of the date when the forfeited locations could properly be relocated, namely, 18 October 2016. A further nine days later, namely, 9 Novembers 2016, the applicant's lawyers wrote the letter of demand. Before the month was out, the applicant sued, namely, on 24 November 2016.

So, in all the circumstances, quite apart from the fact that the applicant had not yet acquired any sort of right to enforce, the first respondent's reason for not having proceeded with issuing a registration certificate was quite reasonable under the circumstances.

Virtually all the parties urged me to peek into the second respondent's objection to the purported forfeiture of its mine and make a decision on it.

The applicant urged me to disregard the objection as being invalid, allegedly because the purported forfeiture had properly been carried out in accordance with the provisions of the Mines and Minerals Act [Chapter 21:05]. I was also asked to rule that the purported objection had been launched outside the prescribed time limits.

On her part, the first respondent urged me to take note of the fact that an objection had indeed been launched, and that therefore she was now enjoined to adjudicate upon it. It was argued that the applicant's reference to section 266 of the Mines and Minerals Act [Chapter 21:05] as being the provision dealing with the power of the Mining Commissioner to relocate the mining locations belonging to estates of deceased persons was misplaced because that was not the issue before the court.

On its part, the second respondent urged me to consider that the reasons proffered by it in its Notice of Objection were valid. It was argued that the first respondent had cited non-existent provisions in its purported Forfeiture Notice. Furthermore, she had given an insufficient period for objections.

With all due respect, the issue whether the first respondent's purported forfeiture of the second respondent's mining location was, or was not valid, was not before me. It could not have been before me before the first respondent herself had adjudicated upon it. For the parties to urge me to consider it was to jump the gun.

From section 345 of the Mines and Minerals Act [Chapter 21:05] onwards, the Mining Commissioner is given wide powers to resolve all kinds of mining disputes. The issue whether or not the second respondent's objection was valid fell squarely within the scope of disputes the Mining Commissioner is clothed with the necessary jurisdiction.

Counsel for the applicant did not agree.

She said because in section 345[1] of the Mines and Minerals Act [Chapter 21:05] this court is reposed with the original jurisdiction over any dispute arising under the Act, and that because as a court of justice it does not have to wait for an irregularity to play out before it can intervene, it meant there was no need for waiting for the first respondent to consider the second respondent's objection to the purported forfeiture when I could examine for myself the nature and manner of the objection and easily see that it was a nullity.

Counsel for the applicant's argument was ill-conceived. Section 345[1] of the Mines and Minerals Act [Chapter 21:05] reads:

“Except where otherwise provided in this Act, or except where both the complainant and defendant have agreed in writing that the complaint or dispute shall be investigated and decided by the Mining Commissioner in the first instance, the High Court shall have and exercise original jurisdiction in every civil matter, complaint or dispute arising under this Act, and if, in the course of any proceeding, and if it appears expedient and necessary to the Court to refer any matter to a Mining Commissioner for investigation and report, the Court may make an order to that effect.”

Even accepting that this court has the original jurisdiction, as urged upon me by the applicant, this section does not say this court can commandeer proceedings that are already underway within the Mining Commissioner's structures and finish them off itself.

In terms of section 68 of the Constitution, the applicant has a right to administrative conduct that is lawful, prompt, efficient, reasonable, proportionate, impartial and both substantively and procedurally fair.

In terms of section 69 of the Constitution, it has a right to a fair hearing in the determination of its civil rights. Those rights cannot be derogated from at the whim of an impatient and overzealous Regulatory Authority.

The concept of administrative justice is now embedded in our Constitution. It provides the skeletal infrastructure within which official power of all sorts affecting individuals must be exercised. The elements are:

1. Lawfulness, in that official decisions must be authorised by statute, prerogative or the Constitution.

2. Rationality, in that official decisions must comply with the logical framework created by the grant of power under which they are made.

3. Consistency, in that official decisions must apply legal rules consistently to all those to whom the rules apply.

4. Fairness, in that official decisions should be arrived at fairly; that is, impartially in fact and appearance giving the affected persons an opportunity to be heard.

5. Good faith in the making of decisions, in that the official must make the decision honestly and with conscientious attention to the task at hand having regard to how the decision affects those involved.

The concept of administrative justice is one which chimes to a certain degree with the notion that administrative authorities which are charged with the responsibility and power to take administrative action affecting the rights, interests, or legitimate expectations of any person should act lawfully, reasonably and in a fair manner, within a reasonable period. Where it has taken action, it must supply written reasons within a reasonable period.

See Mabuto v Women's University in Africa and Others HH698-15.

In fact, administrative justice is now embedded in our Constitution as section 68(1) of the Constitution provides that every person has a right to administrative conduct that is lawful, prompt, efficient, reasonable, proportionate, impartial and both substantively and procedurally fair. In addition, section 3(1) of the Administrative Justice Act [Chapter 10:28] provides that an administrative authority which has the power and responsibility to take any administrative action affecting the rights, interests or legitimate expectations of others shall act lawfully, reasonably and fairly within a reasonable period.

The remarks of MAKARAU JP…, in U-Tow Trailers (Pvt) Ltd v City of Harare and Another 2009 (2) ZLR 259 (H)…, about the effects of the introduction of the Administrative Justice Act [Chapter 10:28] resonate with the problem presented by this case. The learned Judge President remarked;

“That the promulgation of the Act brings in an era in Administrative Law in this jurisdiction cannot be disputed. It can no longer be business as usual for all administrative authorities as there has been a seismic shift in this branch of the law. The shift that has occurred is, in my view, profound as it brings under the judicial microscope all decisions of administrative authorities save where the provisions of section 3(3) of the Act apply. On the basis of the foregoing, I find that the decision by the first respondent summarily to terminate the lease agreement between itself and the applicant was an administrative action carried out by an administrative authority empowered to do so by the lease agreement between the parties. The Act applies to that decision. The Act provides that an administrative authority which has the responsibility or power to take any administrative action which may adversely affect a right, interest or legitimate expectation of any person shall, inter alia, act reasonably and in a fair manner. The Act proceeds to define what a fair manner, for the purposes of the Act, entails and this includes adequate notice of the nature and purpose of the proposed action and a reasonable opportunity to make adequate representations, in my view, an embodiment of the audi alteram partem rule.”

In fact, section 2 of the Administrative Justice Act [Chapter 10:28] gives a very wide definition of an administrative authority. It provides;

“'administrative authority' means any person who is –

(a) An officer, employee, member, committee, council, or board of the State or a local authority or parastatal; or

(b) A committee, or board appointed by or in terms of any enactment; or

(c) A Minister or Deputy Minister of the State; or

(d) Any other person or body authorised by any enactment to exercise any administrative power or duty.”

Since the pronouncement in U-Tow Trailers (Pvt) Ltd v City of Harare and Another 2009 (2) ZLR 259 (H) was made, administrative law has evolved even more significantly in that the concept of administrative justice has now received Constitutional recognition. Section 68 of the Constitution, which is contained in the Declaration of Rights [Chapter 4], provides:

“(1) Every person has a right to administrative conduct that is lawful, prompt, efficient, reasonable, proportionate, impartial and both substantively and procedurally fair.

(2) Any person whose right, freedom, interest or legitimate expectation has been adversely affected by administrative conduct has the right to be given promptly, and in writing, the reasons for the conduct.

(3)…,.”

The concept of administrative justice includes the requirement that official power affecting individuals must be exercised fairly in that official decisions should be arrived at fairly, that is, impartially in fact and appearance giving the affected person an opportunity to be heard: Telecel Zimbabwe (Pvt) Ltd v Postal and Telecommunications Regulatory Authority of Zimbabwe and Others HH446-15.

It is the embodiment of the audi alteram partem rule.

I would still not agree with counsel for the first respondent that the letter of 2 July 2012 is a determination by the Mining Commissioner which is binding on the parties.

For a start, the letter appears to be an internal correspondence between the engineer and the Commissioner which was not meant for the parties. In fact, none of the parties claimed receipt of that document at the time suggesting that if at all the Mining Commissioner had elected to adopt the findings of the engineer in resolving a dispute between the parties, he did not communicate that decision to the parties.

They cannot therefore be bound by what was stored in the mind of that official.

More importantly, the Mining Commissioner had already made a decision on the dispute between the parties which he communicated to them by letter of 4 June 2012….,. What business had he, therefore, on 3 July 2012, to request the parties to come for another determination?…,.

In resolving a mining dispute and determining whether there has been any encroachment, the Mining Commissioner exercises judicial power. To that extent, he is subject to the usual trappings on the exercise of such power including the rules of natural justice. In that regard, once the Mining Commissioner has pronounced himself on a matter…, he becomes functus officio and cannot revisit the same dispute in order to review his own decision.

The following observed matters are pertinent:

(i) On 6 December 2006, Government issued Special Grant 4765 [“the grant”] to Zimbabwe Mining Development Corporation [“the corporation”]. The Grant covered an area of 63,548 hectares. It is situated within the Reserved Area No.1518 in Mutare Mining District.

(ii) The terms and conditions of the grant were spelt out for the corporation's observance as well as compliance. Those were stated at the time that the grant was issued to the corporation.

(iii) On 2 February 2010, the corporation addressed a letter to the first respondent's Chief Mining Commissioner. The letter reads, in part, as follows:

“Dear Sir

RE: SPECIAL GRANT NO.4765 MARANGE DIAMOND FIELD SEGMENTATION OF SPECIAL GRANT (FIRST LOT)

We wish to apply for the segmentation of SPECIAL GRANT NO.4765 located in the Marange Communal Lands.

We wish to transfer title of the Southern Portion of the SG 4765 measuring 3,731 hectares as shown in the attached plan. The title of that portion is to be transferred to ANJIN INVESTMENTS (PVT) LTD a joint venture between ZMDC & local companies and Chinese Company.”

(iv) The first respondent's Permanent Secretary replied to the abovementioned application. His letter which, was dated 2 February 2010, made reference to SPECIAL GRANT NO.4765 AND Anjin Investments. It reads:

“Dear Sirs

CESSION OF PART OF SPECIAL GRANT 4765 FROM ZIMBABWE MINING DEVELOPMENT CORPORATION (ZMDC) TO ANJIN INVESTMENS (PVT) LTD

The above mentioned matter refers.

We are pleased to confirm that cession of part of SPECIAL GRANT 4765 measuring 3731 hectares from ZMDC to Anjin Investments has been approved by the Secretary for Mines and Mining Development.

Anjin Investments (Pvt) Ltd is a Joint Venture between Matt Bronze (Pvt) Ltd and Anhui Economic Construction Group Co.”

(v) The above correspondence between the corporation and the first respondent resulted in the endorsement which appears in Special Grant 4765. The endorsement reads:

“3731 hectares of Special Grant 4765 have been ceded to Anjin Investments (Pvt) Ltd w.e.f. 2^nd February 2010.”

(vi) The grant, as issued to the corporation, has a total area of 63,548 hectares. The area was reduced to 59,817 hectares after the cession to the applicant of 3,731 hectares on 2 February 2010. The applicant made mention of Special Grant 5247. It, however, stated that its application did not have any bearing on that Special Grant. It said its application related to the respondents' conduct vis–a-vis Special Grant 4765 only. It was for the mentioned reason that the observations which the court made in the foregoing paragraphs centred on Special Grant 4765 to the total exclusion of Special Grant 5247.

The applicant did not say the conduct of the respondents infringed its rights in the ceded portion of the Grant. It said the conduct in question infringed its rights in Special Grant 4765. It, in that regard, acknowledged as well as accepted the fact that its rights in the ceded portion of the Grant did not, and do not exist, independently of the Grant itself. It, in other words, portrayed the correct view which was that its rights in the ceded portion of the Grant exists in, and were exercised by it through, Special Grant 4765 which the first respondent issued to the corporation on 6 December 2006.

The applicant's reliance on clauses 8 and 10 of Special Grant 4765 fortified the view which the court held, and still holds, on this aspect of the matter. Those clauses came into existence before the applicant was born. They were incorporated into the Grant at the time that the first respondent issued Special Grant 4765 to the corporation. The applicant cannot, under the stated set of circumstances, be heard to argue, on the one hand, that the ceded portion of the Grant existed or exists independently of the Grant and, on the other, that the clauses which relate to Special Grant 4765 also relate to it. It cannot, in short, blow both hot and cold.

Clause 8, upon which the applicant rested its case, reads:

“The holder shall mine this special grant as long as is feasible provide inspection fees are paid as provided in the Mines and Minerals Act [Chapter 21:05]”…,.

Whilst the definition of the phrase “the holder” is not available in the Grant, the fact that the clause pre-existed the birth of the applicant supports the proposition that the phrase, by way of deductive logic, refers to the corporation as the holder and not the applicant. The applicant, on its part, did not produce any evidence which showed that the “ceded” portion of the Grant existed outside that Grant itself. All it was able to show was the endorsement which appeared in the Grant. The endorsement is not evidence of the existence of the applicant's mining rights outside the Grant.

The applicant's assertion, which was to the effect that clause 8 of the Grant allowed it to work the sites which were ceded to it for an indefinite period of time was misplaced. It ran contrary to section 291 of the Mines and Minerals Act [Chapter 21:05] [“the Act”]. The section is peremptory in form and nature. No Special Grant nor agreement can supercede it.

The applicant stated, and in the court's view correctly so, that the Permanent Secretary for the Ministry of Mines and Mining Development has a discretion to cancel a Special Grant if the holder thereof fails to comply with any provision of the Grant or with the provisions of the Act. Clause 10 of the Grant has words to a similar effect. Section 291 of the Mines and Minerals Act [Chapter 21:05] is one provision which the applicant and the corporation failed to comply with. The section reads:

“ISSUE OF SPECIAL GRANTS

1. The Secretary may issue to any person -

(a) A special grant to carry out prospecting operations; or

(b) A special grant to carry out mining operations for mining purposes;

upon a defined area situated within an area which has been reserved against prospecting or pegging under section thirty-five for a period which shall be specified in such special grant and on such terms and conditions…,.”…,.

It was on the basis of the section that the Secretary for Mines and Mining Development wrote and advised the applicant, on 22 February 2016, that Special Grant 4765 had expired. He did not say the ceded portion of the Grant had expired. He referred to Special Grant 4765 as a whole, as, in his opinion, no real cession had occurred as the applicant continued to submit.

In writing as he did, the Secretary was acknowledging that the holders of the ceded and 'residual' portions of the Grant were operating outside the law. He advised them that their conduct, in continuing to mine on an expired Grant, was unlawful. He also acknowledged that the holders of the rights which appeared in the Grant were, in the past, compliant with the law in that they had, or at least one of them – the corporation – had, from time to time, applied for the renewal of its, or their, title in the Grant. Reference is made in this regard to Annexures C and E which the first respondent attached to his opposing papers.

It is recorded that, notwithstanding the existence in the Grant of clause 8 which said the holder of the Grant would mine in perpetuity, the corporation applied, on its behalf as well as on behalf of the applicant, for the renewal of the Grant. Annexure C, for instance, showed that the Grant which was issued to the corporation on 6 December 2006 was given a lifespan of four years. Its initial expiry date was 4 December 2010. Annexure E showed that Special Grant 4765, which expired on 4 December 2010, remained un-renewed from that date to date. The appendix to that annexure is pertinent. It showed that the corporation should have renewed the whole grant and not the residual portion of the same as the applicant contended. Column 3 of the appendix is relevant. It makes reference to the area of 63,548 and not to the residual area of 59,817 hectares.

It requires little, if any, effort to observe that Special Grant 4765 had expired for five (5) years running before the first respondent declared it to have been invalid on 22 February 2016. The Special Grant had been allowed to operate outside the law for that stated period of time. The corporation and the applicant took no steps at all to keep the Grant within the confines of the law. The obligation to renew the Grant rested upon them or upon one of them on behalf of the other and not upon the first respondent. The first respondent gave them a very long rope with which they hanged themselves as has occurred in casu.

The applicant stated that its expectation was that the Grant would remain valid for as long as the mining operations were viable to enable it to recoup the investment it made in the mining project.

Whilst its expectation was noble, the same did not permit it to live and continue to operate its mining of diamonds outside the law.

It is the duty of every person who resides in any country to comply with the laws of the country from which he conducts his business. Where a person whose business interests run in conflict with the laws of the territory from which he conducts his business is adversely affected by his unwholesome conduct vis-à-vis the territory's laws, the person cannot receive the sympathy of the offended country's courts which he approaches with dirty hands. He should first purge his quilt before he runs to the courts of the territory to seek relief of whatever form or nature.

The applicant, in the court's view, is not an exception to the above-stated position. It continued to conduct its mining operations with a Special Grant which had expired. It was aware, from as far back as December 2010, that the Grant which was issued to the corporation, with a portion having been ceded to it, was no longer valid. It made no effort to have it renewed. It, in fact, took pleasure in operating outside the law for five consecutive years. The law cannot support its un-wholesome conduct in the mentioned regard.

The sworn duty of any court, the world over, is to ensure that parties who bring matters to it have, in the first place, complied with the letter and spirit of any law which applies to their cases. It is not the duty of a court to perpetuate an illegality. To do so would run contrary to judicial ethics, the court's rules, procedures as well as practice and above all, the law itself which every person is bound to observe and obey without exception.

In the instant case, it is evident that the letter, Annexure E, which the corporation addressed to the first respondent's Permanent Secretary on 30 September 2015 was an attempt by the corporation to have the Grant further renewed. The corporation wrote the letter on behalf of the applicant and on its own behalf, so it would appear. The fact that the letter was written five (5) years after the event goes to show that the corporation and the applicant suffered an inexcusable dereliction of duty towards the first respondent, and, through him, the Government of Zimbabwe as a whole. The applicant, through the corporation, was candid enough to acknowledge, in the letter, that Special Grant 4765 had expired. Various reasons were advanced for the non-renewal of the Grant. In the letter, the corporation appealed to the Ministry of the first respondent to “reconsider its earlier position not to extend the exemption of its payment of renewal of Special Grant fees and grant ZMDC exemption to update its diamond Special Grant fees for a further period of 3 years up to 2016 to….,.”

It is evident that the corporation had, earlier on, requested the first respondent's Ministry to extend to it an exemption of payment of fees for the renewal of the Special Grant. The first respondent, it is clear, had turned down the corporation's request. The letter of 30 September 2015 was, therefore, an appeal to the Ministry to reconsider its earlier position.

The request, and the appeal, of the corporation and the applicant would, in the court's view, have made sense if the applicant and the corporation were not conducting mining operations in terms of the expired Grant or an expired part of the Grant. They advanced, as a reason for the non-renewal of the Grant, that they were financially constrained. They stated that they were not able to raise the necessary fees which related to the renewal of the Grant.

The attitude which the first respondent took towards them would appear to be understandable. It was, so it would appear, premised on the question as to where they were channeling the money which they were receiving from their operations which they continued to conduct on the strength of an invalid Special Grant. The Permanent Secretary's letter of 22 February 2016 spelt out the attitude of the first respondent's Ministry to the request and the appeal to a point where no further debate of the same was required. The Permanent Secretary exercised his discretion against the applicant and the corporation. He acknowledged the fact that both of them had breached the condition upon which the Special Grant was issued to them as well as section 291 of the Mines and Minerals Act [Chapter 21:05].

The manner in which he used his discretion cannot be faulted.

The conduct of the first respondent could not, under the stated circumstances, be said to have been unlawful, unreasonable or disproportionate as the applicant alleged. He simply pronounced what the law says. He could not cancel the Grant which ceased to exist five years ago by operation of the law. What he did was to declare the position as it was and to direct that the corporation and the applicant do cease forthwith their operations which they continued to engage upon a Special Grant which had expired.

The applicant's statement which was to the effect that the first respondent did not follow due process of law when it directed companies which were in the same boat with it to cease operations did not hold.

It would have held if the Grant from which it derived its authority to work the site(s) was valid. The Grant was, unfortunately, invalid. The first respondent did not, therefore, have any obligation to the applicant or to anyone who was in the same position as the latter to have directed in any manner other than what he did.

The corporation, and the applicant, have only themselves to blame for the unfortunate position in which they found themselves. They took solace in continuing to break the law with impugnity. They could not be heard to cry foul when the law descended upon them as it did….,.

The applicant's case was unsustainable. It could not prove its case on a balance of probabilities. The application is, accordingly, dismissed with costs.

One of the fundamental tenets of Administrative Law is that delegated legislation, including by-laws, may be reviewed and set aside on the ground of unreasonableness. This is the settled position not only in England, particularly after the famous case of Kruse v Johnson [1898] 2 QB 91, but also, albeit somewhat less consistently, under Roman-Dutch Law. See, generally, BAXTER: Administrative Law...,.

As observed by the learned author, “unreasonableness has always been a ground for review of delegated legislation but it was not until Kruse v Johnson that the concept was given an identifiable and specific meaning.”...,.

The need for judicial restraint in the administrative realm is also captured in the maxim omnia praesumuntur rite et solemniter esse acta.

It is trite that every enactment, by implication, imports the principle underlying this maxim. See BENNION: Statutory Interpretation…,. The maxim establishes the presumption that an enactment, or delegated legislation, is properly passed or correctly made, until the contrary is proved. As applied to the exercise of official or administrative functions, it must be presumed that the powers conferred will be fairly and reasonably administered and will not be abused....,.

Insofar as concerns the exercise of any power or discretion conferred by any enactment, it is axiomatic that the functionary invested with the power to act or decide must comply with such rules of natural justice as are appropriate to the function to be performed as well as the time and circumstance in question. The two basic requirements in this regard enjoin the functionary concerned to decide, without bias, and to allow representations to be made before the decision is reached or any consequential action is taken.

These basic tenets, as derived from the common law and embodied in the maxims nemo debet esse judex in sua aut propria causa, and audi alteram partem, are now codified in section 3 of the Administrative Justice Act [Chapter 10:28] and reaffirmed in section 68 of the Constitution.

The fact that council may have passed a resolution authorizing the levying of charges does not imply that the applicant is required to pay such levy because it is not empowered to do so in terms of the Rural District Councils Act [Chapter 29:13].

Section 68(2) of the Constitution stipulates thus;

“Any person whose right, freedom, interest or legitimate expectation has been adversely affected by administrative conduct has the right to be given, promptly, and in writing, the reason for the conduct.”

It is my considered view that section 68 gives a person a right to prompt, and written, reasons for any administrative action taken. It therefore follows, in my view, that where administrative action is taken, and a party is adversely affected by it, he has a right to request for and be promptly supplied with written reasons. I do not hold the view that an affected party should sit back, and not ask for reasons, only to say the decision is unfair as no reasons were provided. Section 68 of the Constitution of Zimbabwe simply endorsed, and incorporated into the Supreme law of the land, the provisions of the Administrative Justice Act [Chapter 10:28].

In my view, the Administrative Justice Act is an act of Parliament that compliments the provisions of section 68 of the Constitution. It actually provides, in its preamble, as follows:

“To provide for the right to administrative action and decisions that are lawful, reasonable and procedurally fair; to provide for the entitlement to written reasons for administrative action or decisions…,.”

Section 3(1)(b) of the Administrative Justice Act [Chapter 10:28] provides thus:

“An administrative authority which has the responsibility or power to take any administrative action which may affect the rights, interests or legitimate expectations of any person shall…, -

(b) Where it has taken the action, supply written reasons therefore within the relevant period specified by law, or, if there is no such specified period, after being requested to supply reasons by the person concerned.”

In terms of section 340(1)(c) of the Constitution, the power to appoint a substantive office holder includes the power to appoint a person to act in that office…,. Section 340(1)(c) of the Constitution reads;

“340 (1) Except as otherwise provided in this Constitution, a power under this Constitution to appoint a person to an office includes a similar power -

(a)…,.

(b)…,.

(c) To appoint a person to act in that office;”…,.

In Zambezi Proteins (Pvt) Ltd & Others v Minister of Environment & Tourism & Anor 1996 (1) ZLR 378 (H), GARWE J…, quoted from PROFESSOR FELTOE's book, Guide to Zimbabwean Administrative Law.., as follows:-

“As the function of the Court is not to delve into the substantive correctness of administrative decision, but only to ascertain whether there have been any procedural irregularities or action of an ultra vires nature, it would seem to follow that on review the Court has no power to overturn a decision simply because it considers it to be unreasonable. If it was to do so, it would, in effect, be substituting its own decision in place of the decision of the body empowered to make this decision.”

The learned author remarks further:

“In certain circumstances, however, the courts will set aside decision of a grossly unreasonable nature. A well recognised ground for doing this is where the decision is not only grossly unreasonable but is so grossly unreasonable that it is only explicable on the basis of mala fides, ulterior motive or failure of the decision-maker to apply its mind to the decision it had to make.”

Paragraph 2 in the above quoted passages sets out the grounds upon which the court may interfere with an administrative decision.

Whilst sections 36 of the Value Added Tax Act [Chapter 23:12] and 69(1) of the Income Tax Act [Chapter 23:06] provide that the occurrence of any of the specified events shall not suspend the taxpayer's obligation to pay the tax assessed to be due and payable, they, at the same time, create a remedy for the amelioration of possible financial hardships faced by an individual taxpayer. They give the Commissioner the discretionary power to suspend the obligation pending the determination of the appeal by the Fiscal Appeals Court or pending the decision by a court….,.

The legislature decided to place the responsibility of deciding whether or not the particular circumstances of a taxpayer entitle him or her to a directive suspending the obligation to pay the assessed tax on the Commissioner.

A court of law would be acting unlawfully if it usurped the discretionary powers of the Commissioner and ordered a suspension of the obligation on a taxpayer to pay assessed tax pending determination of an appeal by the Fiscal Appeal Court….,.

Section 136 of the Environmental Management Act [Chapter 20:27] (EMA) provides that:

“136 Observation of rules of natural justice

In the exercise of any function in terms of this Act, the Minister, the Secretary, the Agency, the Director- General and any other person or authority shall ensure that the rules commonly known as the rules of natural justice are duly observed, and, in particular, shall take all reasonable steps to ensure that every person whose interests are likely to be affected by the exercise of the function is given an adequate opportunity to make representations in the matter.”

It is common cause that the Minister did not observe the rules of natural justice when he issued General Notice 313/2012.

No reasonable steps were taken to ensure that every person whose interests were likely to be affected was given adequate opportunity to make representations in the matter….,.

It was submitted, on behalf of the respondents, that General Notice 313 of 2012 amounted to a notice of invitation to the public to object and that the letter of complaint written by the applicant amounted to an opportunity to make representations.

I respectfully disagree with that view.

In terms of General Notice 313/2012, notice was given, in terms of section 113(1) of the Environmental Management Act [Chapter 20:27] (EMA), that the Minister had declared the land 'described' in the schedule as wetlands. That cannot, in any language, be interpreted as an invitation to make representations.

Section 136 of the Environmental Management Act [Chapter 20:27] (EMA) enjoins the Minister to observe the rules of natural justice for every action that he takes or decision that he makes. It is my view that, the rules of natural justice were flagrantly flouted, by the gazetting of General Notice 313 of 2012.

The court is fortified in this view by the persuasive submission made on behalf of the applicant, that the promulgation of General Notice 313 of 2012 was in breach of section 3 of the Administrative Justice Act [Chapter 10:28], which provides that:

“3 Duty of administrative authority

(1) An administrative authority which has the responsibility or power to take any administrative action which may affect the rights, interests or legitimate expectations of any person shall -

(a) Act lawfully, reasonably and in a fair manner; and

(b) Act within the relevant period specified by law or, if there is no such specified period, within a reasonable period after being requested to take the action by the person concerned; and

(c) Where it has taken the action, supply written reasons therefor within the relevant period specified by law or, if there is no such specified period, within a reasonable period after being requested to supply reasons by the person concerned.

(2) In order for an administrative action to be taken in a fair manner as required by paragraph (a) of subsection (1), an administrative authority shall give a person referred to in subsection (1) -

(a) Adequate notice of the nature and purpose of the proposed action; and

(b) A reasonable opportunity to make adequate representations; and

(c) Adequate notice of any right of review or appeal where applicable.”

It is settled in our law that the Minister is an 'administrative authority' for purposes of the Administrative Justice Act (see Marufu v Minister of Transport 2009 (2) ZLR 458…,.) and that he is enjoined to act as fairly as possible, by giving adequate notice of his intention, by allowing a reasonable time period within which affected parties can make representations, and by providing reasons for his decision within a reasonable period of adverse representations being made. The Minister did not do so before, or after he caused General Notice 313/2012 to be promulgated.

Section 130 of the Environmental Management Act [Chapter 20:27] (EMA) provides for appeals against any decision of any authority in terms of the Environmental Management Act as follows:

“130 Appeal against decision of authority

(1) Subject to this section, any person who is aggrieved by any decision of any authority in terms of this Act, may, within twenty-eight days after being notified of the decision or action of the authority concerned, appeal in writing to the Minister, submitting with his appeal such fee as may be prescribed:

(2) For the purpose of determining an appeal noted in terms of subsection (1), the Minister (if he is not the authority concerned in the appeal) may require the authority to furnish him with the reasons for the decision or action that is the subject of the appeal and a copy of any evidence upon which the reasons are based.

(3) The Minister, after due and expeditious inquiry, may make such order on any appeal noted in terms of subsection (1) as he considers just.

(4) An appeal shall lie to the Administrative Court against any order of the Minister in terms of subsection (3).

(5) An appeal in terms of subsection (4) shall be made in the form and manner and within the period prescribed in the rules of court.

(6) On appeal, in terms of subsection (4), the Administrative Court may confirm, vary or set aside the decision or action appealed against and may make such order, whether as to costs or otherwise, as the court thinks just.”

It is hoped that the citizens of Zimbabwe will vigorously pursue and enforce their rights as provided in terms of the Environmental Management Act, lest we be judged and found wanting, by future generations, for failing to play our part in preserving and protecting the environment.

However, it is my considered view that even if the High Court were to issue the decalaratur that is sought by the applicant, no consequential relief will flow from such a course of action.

It is only pursuant to the noting of an appeal against the action of the Minister, in terms of section 130 of the Environmental Management Act, to the Administrative Court, that the decision of the Minister may be confirmed, varied, or set aside.

The land that was declared to be 'wetland' remains so declared until the Administrative Court makes a finding in regards to the propriety of the action of the Minister in making the declaration. Section 136(6) of the Environmental Management Act empowers the Administrative Court to confirm, vary or set aside the decision or action appealed against. This court, in terms of section 14 of the High Court Act [Chapter 7:06] is empowered to:

“14 High Court may determine future or contingent rights

The High Court may, in its discretion, at the instance of any interested person, inquire into and determine any existing, future or contingent right or obligation, notwithstanding that such person cannot claim any relief consequential upon such determination.”

This court therefore declares that it was not open to the second respondent to make decisions based on the apparent validity of General Notices 313/12 and 380/2013, which were null and void for contravening the provisions of section 113, as read with section 136 of the Environmental Management Act [Chapter 20:27] (EMA).

The Minister was required to give all parties likely to be affected by his decision a reasonable opportunity within which to make representations and observe each person's right to be heard in deference to the time honoured rule of audi alterem partem. It is this court's view that the general notices were indeed ultra vires the Environmental Management Act, which, in section 113, only provided for a declaration that a wetland was an ecologically sensitive area.

Section 113(1) of the Environmental Management Act [Chapter 20:27] presupposes the existence of a wetland. The definition of wetland is clear. It is a question of fact not law whether a piece of land is a wetland. Not all wetlands are ecologically sensitive, and declaring a wetland to be ecologically sensitive must surely be based on scientific study and determination of such ecological sensitivity. A wetland will not become ecologically sensitive just because it has been declared to be so….,.

For these reasons, the relief sought by the applicants is granted, as follows: IT IS HEREBY ORDERED THAT:

1. General Notices 313/2012 and 380/2013 be and are hereby declared a nullity and are of no force or effect.

2. The first and second respondents pay the costs of this application, jointly and severally, the one paying and the other to be absolved.

The audi principle was described by MILNE JA in South African Roads Board v Johannesburg City Council SA 1 (A) as being;

“…, a rule of natural justice which comes into play whenever a statute empowers a public official or body to do an act or give a decision prejudicially affecting an individual in his liberty or property or existing rights, or whenever such an individual has a legitimate expectation entitling him to a hearing, unless the statute expressly, or by implication, indicates the contrary.”

It should be noted that the duty to act fairly, however, is concerned only with the manner in which decisions are taken; it does not relate to whether the decision itself is fair or not. What the duty to act fairly demands of the public official or body concerned was succinctly stated by LORD MUSTIL in Doodly v Secretary of State for the Home Department and Other Appeals [1993] 3 ALL ER 92 (HL) as follows:

“What does fairness require in the present case? My Lords, I think it is unnecessary to refer by name or to quote from any of the often-cited authorities which the courts have explained what is essentially an intuitive judgment. They are far too well known. From this, I derive the following;

(1) Where an act of Parliament confers an administrative power, there is a presumption that it will be exercised in a manner which is fair in all the circumstances.

(2) The standards of fairness are not immutable. They may change with the passage of time both in the general and in their application to decisions of a particular type.

(3) The principles of fairness are not to be applied by rote identically in every situation. What fairness demands is dependent on the context of the decision and this is to be taken into account in all its aspects.

(4) An essential feature of the context is the statute which creates the discretion as regards both its language and the shape of the legal and administrative system within which the decision is taken.

(5) Fairness will very often require that a person who may be adversely affected by the decision will have an opportunity to make representations on his own behalf, either before the decision is taken, with a view to producing a favourable result, or after it is taken, with a view to procuring its modification, or both.

(6) Since the person affected usually cannot make worthwhile representations without knowing what factors may weigh against his interests, fairness will very often require that he be informed of the gist of the case which he has to answer.”…,.

I associate myself with SMALBERGER JA's remarks in Administrator Transvaal, Ors v Theletsane and Ors 1991 (2) SA 192 (A)…,. The learned judge of appeal stated that;

“What the audi rule calls for is a fair hearing. Fairness is often an elusive concept; to determine its existence within a given act or set of circumstances is not always an easy task. No specific all encompassing test can be laid down for determining whether a hearing is fair - everything will depend upon the circumstances of the particular case. There are, however, at least two fundamental requirements that need to be satisfied before a hearing can be said to be fair; there must be notice of the contemplated action and a proper opportunity to be heard.”…,.

Significantly, however, there is nothing to show what evidence was placed before the first respondent to enable him to come to the conclusion that the third respondent was the deceased's wife…,.

The conclusion by the first respondent that the deceased had two wives is therefore not based upon any evidence which was placed before him. That is where the gross irregularity would arise, in the sense that in the absence of evidence the conclusion was so grossly unreasonable that no reasonable person who had applied his mind to the matter before him would have come to that conclusion.

Section 68[1] of the Constitution says:

“Every person has a right to administrative conduct that is lawful, prompt, efficient, reasonable, proportionate, impartial and both substantively and procedural fair.”

The right to benefit from the provisions of the Customs and Excise (General) Regulations, S.I.154 of 2001 has created, in my view, a substantive legitimate expectation for permanent returning residents to Zimbabwe to enjoy the associated benefits which flow from the Regulations.

The authorities administering the Regulations must do so rationally, fairly, non-arbitrarily and in an unbiased manner. If a denial of a legitimate expectation, in a given case, amounts to denial of a right guaranteed or is arbitrary, discriminatory, unfair or biased, gross abuse of power or violation of principles of natural justice, the same can be questioned on well-known grounds of review.

In R (Bhatt Murphy) v Secretary of State for the Home Department [2008] EWCA Civ 755 LORD JUSTICE LAWS expressed how, arising from the doctrine of legitimate expectation, an abuse of power may be established:

“A very broad summary of the place of legitimate expectations in public law might be expressed as follows.

The power of public authorities to change policy is constrained by the legal duty to be fair (and other constraints which the law imposes). A change of policy which would otherwise be legally unexceptionable may be held unfair by reason of prior action, or inaction, by the authority. If it has distinctly promised to consult those affected or potentially affected, then, ordinarily, it must consult (the paradigm case of procedural expectation). If it has distinctly promised to preserve existing policy for a specific person or group who would be substantially affected by the change, then, ordinarily, it must keep its promise (substantive expectation). If, without any promise, it has established a policy distinctly and substantially affecting a specific person or group who in the circumstances was in reason entitled to rely on its continuance, and did so, then, ordinarily it must consult before effecting any change (the secondary case of procedural expectation).

To do otherwise, in any of these instances, would be to act so unfairly as to perpetrate an abuse of power.”…,.

In Affretair (Pvt) Ltd v MK Airlines (Pvt) Ltd 1996 (2) ZLR 15…, it is written:

“The duty of the Courts is not to dismiss the authority and take over its functions, but to ensure, as far as humanly and legally possible, that it carries out its functions fairly and transparently. If we are satisfied it has done that, we cannot interfere just because we do not approve of its conclusion. But, at the other end of the scale, if the conclusion is hopelessly wrong, the Courts may say that it could only have been arrived at by reference to improper considerations or by failure to refer to proper considerations. In these cases we reason backwards from the effect to the cause. We say 'the result is so bizarre that the process by which it was reached must have been unfair or lacking in transparency.'”

So, in the result, the courts will expect from administrative bodies decisions that are:

“1. Legal, in the sense that they are made within the framework of the law which empowers them to make the decision, and after the application of the appropriate criteria laid down in the statute or statutory instrument;

2. Rational, in the sense that they are not so wrong as to lead to the conclusion that they could only have been reached by a failure to apply the right criteria or by the application, whether deliberately or not, of the wrong criteria.

3. Procedurally proper, in the sense that the appropriate procedures required by the statute have been followed and that the principles of natural justice have been observed.

4. Justifiable, in that the administrative body will give its decision, at least when the decision is challenged, with reasons. The purpose of requiring reasons is that the Court can then more readily determine the propriety and reviewability of the decision.”

See also Metsola v Chairman of the PSC & Anor 1989 (3) ZLR 147; Patriotic Front-ZAPU v Minister of Justice, Legal & Parliamentary Affairs 1985 (1) ZLR 305 (SC)…,.; 1986 (1) SA 532 (ZS)…,.

Section 33 of the Extradition Act [Chapter 9:08]…, is as follows:

“33 Discharge from extradition

[1] If any person in custody awaiting his extradition in terms of this Act is still in custody after the expiry of a period of two months beginning with the first day on which he could, in terms of this Act, have been extradited, he may apply to the High Court for his discharge from custody.

[2] If, upon application made in terms of subsection (1), the High Court is satisfied that reasonable notice of the proposed application has been given to the Minister it shall, unless good cause to the contrary is shown, order that the applicant be forthwith discharged.”…,.

In the instant case, I granted the application for discharge at the close of submissions.

I did not regard the alleged endemic corruption within the Zimbabwe Republic Police or the military's 'Operation Restore Legacy' as such good cause as contemplated by section 33 of the Extradition Act. The Ministry of Home Affairs' inaction for five to seven months cannot be sufficient excuse where the liberty of an individual is concerned. The Minister might himself have been under some discomposure by reason of the factional combat within his own political party but the Permanent Secretary, and the entire bureaucracy under him, had been in office.

Only after the applicants had actually launched the application did the Permanent Secretary purport to swing into action.

Furthermore, not only were the applicants not facing any criminal charges locally, but, also, the South African authorities themselves had remained mum ever since their application for extradition had been granted. The crime was allegedly committed in June 2016. The extradition order was granted exactly a year later. More than seven months later, the requesting country had made no follow-up.

It is because of such lackadaisical, easy-going, indifferent and laid back approach to Government business that such laws as section 33 of the Extradition Act [Chapter 9:08] are promulgated.

In their statements of defense, the respondents denied any wrongdoing, and averred that the allocation of the properties to them was done by council officials over whom they had no control or influence, and that they had no legal duty to scrutinize council allocations or to refuse what was allocated to them….,.

Councilor Maxwell Katsande, under cross-examination by Mr Mutsonziwa, told the Disciplinary Committee that the special resolution pertaining to allocation of stands was explained to them as a full council. He said that there was no need for him to go and research further on its meaning or interpretation….,.

The Disciplinary Committee found that the Director of Housing did not approach council for amendment of the special resolution for authority to allocate the stands to the four councillors. It was found that the councillors were not at liberty to claim that just because the Director of Housing failed to carry out his duties properly, they had no choice but to accept the stands. As councillors, they were the authors and custodians of the council resolutions. They knew the spirit and letter of the resolutions and that it was wrong to go beyond the boundaries prescribed by the resolutions….,.

In the light of his admission that the resolutions were explained to them, Councillor Katsande's lack of appreciation of the meaning of the resolution is baffling. It brings to mind the question of the duty of care that reposes in public officials to acquaint themselves with and uphold the policies of the institutions they serve on behalf of members of the public.

This is a chamber application for an order for direct access to the Constitutional Court (“the Court”) made in terms of Rule 21(2) of the Constitutional Court Rules, S.I.61 of 2016 (“the Rules”).

FACTUAL BACKGROUND

In 2014, the University of Zimbabwe awarded a Doctor of Philosophy degree to Mrs Ntombizodwa Grace Mugabe (nee Marufu) (“Mrs Mugabe”). The applicant was the Vice-Chancellor of the University at the time. The applicant stated that, to his knowledge, the degree was awarded in accordance with the University of Zimbabwe Act [Chapter 25:16] as well as the statutes and ordinances of the University. In February 2018, the applicant was arrested by members of the Zimbabwe Anti-Corruption Commission. He was charged with criminal abuse of office as defined in section 174(1)(a) of the Criminal Law (Codification and Reform) Act [Chapter 9:23] on the allegation that he had improperly awarded the degree to Mrs Mugabe.

The applicant was arraigned before the Harare Magistrates Court on initial remand. He was suspended from his position as the Vice Chancellor of the University of Zimbabwe by the President pending finalisation of the criminal charges. On 23 July 2018 the second respondent issued authority to prosecute to the third and fourth respondents. He purported to do so in terms of section 259 of the Constitution of Zimbabwe Amendment (No.20) Act 2013 (“the Constitution”). The third and fourth respondents are members of the Special Anti-Corruption Unit in the Office of the President and Cabinet (“the Unit”).

When the trial began, on 5 September 2018, the third and fourth respondents appeared as prosecutors in the case. The applicant objected to their right to prosecute at the public instance. The applicant raised three constitutional questions. The questions were –

“(i) Whether the grant of authority to prosecute to the third and fourth respondents, purportedly under section 259 of the Constitution, being persons other than employees of the National Prosecuting Authority, was ultra vires section 259 of the Constitution?

(ii) Whether the grant of the said authority is ultra vires section 263 of the Constitution and a wilful abdication of constitutional power by the Prosecutor-General, thereby infringing his rights aforesaid?

(iii) Whether, in any event, the grant of the said authority undermines the protective scheme of inherent prosecutorial independence afforded him by section 258 through to section 263 of the Constitution, and, as such, a breach of his rights aforesaid?”

The right to administrative justice, as enshrined in section 68(1) of the Constitution, does not cover judicial decisions.

Section 68 of the Constitution is given effect by the Administrative Justice Act [Chapter 10:28], section 2 of which defines 'administrative action' and 'administrative authority'. Administrative action is taken to mean “any action taken or decision made by an administrative authority and the words 'act', 'acting' and 'actions' shall be construed and applied accordingly”. An administrative authority is defined as follows:

“'administrative authority' means any person who is -

(a) An officer, employee, member, committee, council, or board of the State or a local authority or parastatal; or

(b) A committee, or board appointed by or in terms of any enactment; or

(c) A Minister or Deputy Minister of the State; or

(d) Any other person or body authorised by any enactment to exercise or perform any administrative power or duty;

and who has the lawful authority to carry out the administrative action concerned.”

A proper reading of these provisions shows that courts of law do not fall under the category of administrative authorities. Neither do their decisions constitute administrative actions.

This is an appeal against the judgment of the Labour Court dismissing an appeal and review application instituted by the appellant against a decision of the Retrenchment Board (the Board). The decision was communicated to the parties on 28 April 2017….,.

The court a quo…, rejected the appellant's argument that its application for exemption must be deemed to have been granted by operation of law in terms of section 12C(3) of the Labour Act [Chapter 28:01] because the Retrenchment Board had failed to respond to the application within 14 days after it was lodged.

The court found that the provision did not require the Board to determine the application within 14 days. What was required was that the Board should respond to the application within that period and it had effectively done so by calling the parties, on 3 March 2017, to appear for a hearing on 9 March 2017….,.

The second ground of appeal relates to the argument that the appellant's application for exemption must be deemed to have been granted by operation of law because the Retrenchment Board's response was made more than 14 days after receiving the request for exemption.

This ground hinges on the correct interpretation of section 12C(3) and related provisions of the Labour Act….,.

Section 12C of the Labour Act, which was introduced by section 5 of the Labour Amendment Act No.5 of 2015…,. In subsection (3)…, it states as follows:

“(3) Where an employer alleges financial incapacity and consequent inability to pay the minimum retrenchment package timeously or at all, the employer shall apply, in writing, to be exempted from paying the full minimum retrenchment package or any part of it to -

(a) The employment council established for the undertaking or industry; or

(b) If there is no employment council for the undertaking concerned, to the Retrenchment Board;

which shall respond to the request within fourteen days of receiving the notice (failing which response the application is deemed to have been granted).

(4) In considering its response to a request for exemption in terms of subsection (3) the employment council or Retrenchment Board….,.”

(a) Shall, where the employer alleges complete inability to pay the minimum retrenchment package, be entitled to demand and receive such proof as it considers requisite to satisfy itself that the employer is so unable, and, if so unable on the date when the notice of termination of employment takes effect, may propose to the employer a scheme to pay the minimum retrenchment package by instalments over a period of time;

(b) Shall, where the employer offers to pay the minimum retrenchment package by instalments over a period of time, consider whether the offer is a reasonable one, and may propose an alternative payment schedule;

(c) May inquire from the employer whether he or she has considered, or may wish to consider, specifically or in general, the alternatives to termination of employment provided for in section 12D.”

The crisp issue for determination in casu, as I perceive it, is this: Do the words 'respond' and 'response', as used in section 12C(3) as read with section 12C(4) of the Labour Act, mean “definitively decide or determine” within the prescribed period of 14 days, or do they mean something entirely different in keeping with the ordinary usage of those words?

Counsel for the appellant submits that to respond, in the context of section 12C, is to give a final answer or determination. The intention is to ensure that every application for exemption is determined expeditiously. Section 12C(4) highlights the factors that have to be considered before delivering a response, i.e. a final determination under section 12C(3).

The language of the latter provision is peremptory and the courts cannot allow any extension of the stipulated 14 day period. In the instant case, the final determination was made well beyond that period, and, therefore, the exemption sought by the appellant must be deemed to have been granted by operation of law.

Counsel for the respondents submits that the ordinary meaning of respond is that the Retrenchment Board must communicate its receipt of the application for exemption….,.

The word 'respond', in its ordinary connotation, means “to say or do something as a reaction to something that has been said or done” (per the Cambridge English Dictionary). The word clearly does not denote anything akin to a final or definitive decision on anything raised by one person for a response to be given by another. Rather, it signifies an exchange of words or conduct between one or more individuals.

In the present context, the ordinary meaning of 'respond' necessitates that the Board should react to an application for exemption within 14 days….,.

My reading of section 12C(4) is that it provides a guiding template for the Retrenchment Board in considering its response to an application for exemption. In my view, it does not, as is contended on behalf of the appellant, operate to transmute the ordinary meaning of 'respond' into one necessitating that the Retrenchment Board make a final and definitive determination within 14 days.

It is not the function of the court to make an institution ungovernable by excessive and intrusive incursion into matters under the purview of administrative authorities.

A Board of Suitability is a management tool designed to assist the Commissioner General to manage the service in accordance with necessary discipline. It therefore facilitates the removal of medically-unfit, lazy, incompetent or un-qualified members from the force, including those found to be unsuitable under disciplinary processes. Any person aggrieved by the outcome of a Board of Suitability is entitled to appeal to the Police Service Commission in terms of section 51 of the Police Act [Chapter 11:10], and, in those circumstances, the outcome of the Board is stayed pending such appeal.

However, to seek to stop the convening of a Board of Suitability is tantamount to interfering with the local remedies available to a member consequent upon the management and administrative function of the Commissioner General.

The courts have always been loathe to substitute themselves for administrative authorities or arrogate to themselves management functions of authorities mandated with the power to run institutions, preferring to maintain their role of judicially supervising the manner in which authorities conduct themselves.

Specifically, the courts have refrained from interfering with management processes and have established clear principles as to when to do so. See Affretair (Pvt) Ltd & Anor v MK Airlines (Pvt) Ltd 1996 (2) ZLR 15…,. See also Arafas Mtausi Gwaradzimba N.O. v Gurta A.G. SC10-15…,.

This is a position which is not peculiar to this jurisdiction only. See Premier, Mpumalanga v Association of Estate Agents School 1999 (2) (CC) 113…,. See also, Chief Constable of the North of Wales Police v Evans [1982] 3 ALL ER 141 (HL)…,.

In my view, the case law thus supports the proposition that the courts expect administrative authorities to carry out their normal function, legally, rationally, properly and justifiably and only interfere where such function has been carried out in a biased and/or prejudicial manner in circumstances where the court is in as good a position as the authority to substitute its decision. Prior to the authority carrying out its function, the courts will only interfere where there is likely to be undue delay or the authority will reach a foregone conclusion. This, in our view, is also in line with the doctrine of margin of appreciation. Hence, courts have generally restricted themselves to reviewing the manner in which administrative/management processes have been conducted, rather than stopping the processes altogether.

I see no reason to depart from this time-honoured and reasonable stance, for if it is the function of the court to scrutinize the decisions of an administrator (BAXTER's Administrative Law…,.).

The respondents' cumulative conduct, starting from allowing the applicant to progress to the final year despite her un-completed courses, culminating in them, inter alia, accepting her fees for the fourth year; allowing her to register for the fourth year, and allowing her to complete the course work, which they marked, must have created a legitimate expectation in the mind of the applicant that she had been granted the dispensation to sit her final examination despite her carry overs….,.

The respondents had, by their own conduct or inaction, fed that expectation.

Among other things, they had allowed her to carry forward failed courses for the first and second years. She had successfully enrolled for the fourth year. She had attended lectures for that year. The University had accepted her fees for it. She had completed the course work. The University had marked and passed her. She had been entered for the final examination. Only at the eleventh hour was she removed from the list of those to sit the examination. She was not advised in person. She had discovered it through her own effort - and quite by chance…..,.

The courts would not interfere with what would be the prerogative of the University's Senate - except in cases of manifest injustice.

Section 68 of the Constitution reads:

“68 Right to administrative justice

(1) Every person has a right to administrative conduct that is lawful, prompt, efficient, reasonable, proportionate, impartial and both substantially and procedurally fair.

(2) Any person whose right, freedom, interest or legitimate expectation has been adversely affected by administrative conduct has the right to be given, promptly and in writing, the reason for that conduct.

(3) An Act of Parliament must give effect to these rights, and must -

(a) Provide for the review of administrative conduct by a court, or, where appropriate, by an independent and impartial tribunal;

(b) Impose a duty on the State to give effect to the rights in subsection (1) and (2); and

(c) Promote an efficient administration.”

Section 3 of the Administrative Justice Act [Chapter 10:28] (AJA) reads:

“3 Duty of administrative authority

(1) An administrative authority which has the responsibility or power to take any administrative action which may affect the rights, interests or legitimate expectation of any person shall –

(a) Act lawfully, reasonably and in a fair manner; and

(b) Act within the relevant period specified by law, or, if there is no such specified period, within a reasonable period after being requested to take the action by the person concerned; and

(c) Where it has taken the action, supply written reasons therefor within a reasonable period after being requested to supply reasons by the person concerned.

(2) In order for an administrative action to be taken in a fair manner, as required by paragraph (a) of subsection (1), an administrative authority shall give a person referred to in subsection (1) –

(a) Adequate notice of the nature and purpose of the proposed action; and

(b) A reasonable opportunity to make adequate representations; and

(c) Adequate notice of any right of review or appeal where applicable.”

Subsection (3) provides instances when an administrative authority may depart from the requirements of subsections (1) and (2). Section 4 provides for the relief against administrative authorities for breach of the Administrative Justice Act. An aggrieved person may apply to this court for relief. The relief includes, inter alia, the right to have the decision concerned set aside. The court can refer the matter back to the administrative authority for consideration or re-consideration. It can also give several other directions.

Section 3(1)(c) of the Toll Roads Act [Chapter 13:13] provides that the Minister of Transport may fix the amount of any toll after consulting the minister responsible for finance….,.

One of the applicant's complaints, on lack of consultation, was that the Minister of Transport, without consulting the general motoring public, promulgated S.I.106 of 2014 which imposed punitive toll increases.

But, the law does not make it obligatory for the Minister of Transport to consult anyone else other than the Minister of Finance. Therefore, there is no valid complaint on this point….,.

The judgment of the Constitutional Court of South Africa, in National Treasury and Ors v Opposition to Urban Tolling Alliance & Ors 2012 (6) SA 229; Opposition to Urban Tolling Alliance & Ors v South African National Roads Agency Limited 2013 (4) All SALR 639 (Judgment No. 90/2013 of the Supreme Court of Appeal of South Africa)…, cited with approval the following passage in the case of Doctors for Life International v Speaker of the National Assembly and Others 2006 (6) SA 416 (CC) 2006 (12) BCLR1399;

“(W)here the Constitution or valid legislation has entrusted specific powers and functions to a particular branch of Government, courts may not usurp that power or function by making a decision of the their preference that would frustrate the balance of power implied in the principle of separation of powers. The primary responsibility of a court is not to make decisions reserved for or within the domain of other branches of Government, but, rather, to ensure that the concerned branches of Government exercise their authority within the bounds of the Constitution. This would especially be so where the decision in issue is policy-laden as well as polycentric.”

In paragraphs 66 to 68, on page 241, the court held as follows:

“[66] A court must carefully consider whether the grant of the temporary restraining order pending a review will cut across or prevent the proper exercise of a power or duty that the law has vested in the authority to be interdicted. Thus, courts are obliged to recognise and assess the impact of temporary restraining orders when dealing with those matters pertaining to the best application, operation and dissemination of public resources. What this means is that a court is obliged to ask itself not whether an interim interdict against an authorised State functionary is competent but rather whether it is constitutionally appropriate to grant the interdict.

[67] The harm and inconvenience to motorists, which the High Court relies on, result from a national executive decision about the ordering of public resources, over which the executive Government disposes and for which it, and it alone, has the public responsibility. Thus, the duty of determining how public resources are to be drawn upon and re-ordered lies in the heartland of executive-Government function and domain. What is more, absent any proof of unlawfulness or fraud or corruption, the power and the prerogative to formulate and implement policy on how to finance public projects reside in the exclusive domain of the national executive subject to budgetary appropriations by Parliament.

[68] Another consideration is that the collection and ordering of public resources inevitably call for policy-laden and polycentric decision-making. Courts are not always well suited to make decisions of that order. It bears repetition that a court considering the grant of an interim interdict against the exercise of power within the camp of Government must have the separation of powers consideration at the very fore front.”

I adopt the same approach in this case.

I do find nothing unprocedural in the way the Minister of Transport promulgated S.I.106 of 2014. It was within his power to craft it. It was an action within the exclusive domain of the executive to decide how road construction, rehabilitation and maintenance should be funded. Such a decision is manifestly policy-laden and polycentric.

In my view, section 68 of the Constitution and the Administrative Justice Act are, in most ways, a mere codification of the traditional powers of the courts to review the exercise of the functions of the executive. In my view, the Administrative Justice Act is merely an elaborate restatement of the rules of natural justice. In the case of Zindoga & Ors v Minister of Public Service, Labour and Social Welfare & Anor 2006 (2) ZLR 10 (H), PATEL J said…,:

“It is axiomatic that any party who has a right or interest that is likely to be affected by an administrative decision or which is susceptible to being prejudiced thereby must be heard before that decision is taken. This is dictated by the time honoured precept of the common law embodied in the audi alteram partem rule and now codified in the Administrative Justice Act [Chapter 10: 28].”…,.

The courts exercise the powers of review within those bounds as have been developed through case law such as PF-ZAPU v Minister of Justice 1985 (2) ZLR 305 (SC) and the e-tolling cases referred to above.

If the applicant argues that something is unreasonable, the obvious question is unreasonable compared to what? If something is disproportionate or punitive, in relation to what? Aren't these mere abstract concepts that defy precision?

Without some kind of empirical evidence, how does a court quantify unreasonableness?

This is an action for the vindication of the plaintiff's vehicle. The salient features of this action may be summarised as follows:

The plaintiff is the registered owner of a Toyota Land Cruiser registration no. ACF 1290. The defendant was appointed a non-executive Chairman of the plaintiff's Board of Directors since 2006. He was allocated the above referenced vehicle for his use in July 2011, a month before he was removed from the plaintiff's Board. Upon his removal as chairperson, the defendant did not return the motor vehicle and has refused to return the vehicle to the plaintiff.

The plaintiff called its Company Secretary, Mr Tembelani Kohle Ncube, as its only witness. His evidence is summarized as follows:

The plaintiff is the owner of the Toyota Land Cruiser in issue. The defendant has possession of the vehicle which was allocated to him as non-executive chairperson of the plaintiff's Board of Directors. He was allocated the vehicle to use for both business and private purposes during his tenure of office. The defendant has been removed as the chairperson of the plaintiff and he is not entitled to possess the vehicle. He is not aware of any policy or resolution which entitles former Board chairpersons and members to retain vehicles issued to them. The chairperson is issued with a vehicle he uses in terms of a Board resolution. The motor vehicle policy available covers executive, middle managers, and employees, other than directors, who are entitled to motor vehicles in terms of their employment contracts. The defendant was previously issued two Mercedes Benz vehicles and a Toyota Prado and these were returned to the pool when he was allocated a new car. The defendant returned these vehicles because he had a replacement vehicle. The defendant was not entitled to retain the vehicle when he ceased to be a Board member or non-executive Chairperson. A Board meeting of 11 December 2012 resolved that the incumbent chairperson purchase his vehicle and it is specific to that incumbent chairperson. When the defendant was in office, there was no such policy and the company would retain the vehicle.

The witness was not aware of any non-executive Director, before the defendant, who retained his official vehicle.

The defendant testified as follows:

He was the non-executive chairperson of the plaintiff for the past six (6) years. He started using the vehicle in issue in 2011.The vehicle belongs to the plaintiff and he possesses it. He is entitled to the vehicle because his predecessors were allowed to purchase their vehicles after leaving the company. His predecessor, Mr Kadenga, was allowed to purchase his vehicle after leaving the company. Mr Kudenga was offered his vehicle but he turned down the offer because he was not happy with its state. The practice is to allow chairpersons to exercise the right to purchase their vehicles. He expected that he would be offered to purchase the vehicle. He was treated unfairly as he was not offered the vehicle. He served the company well. He is prepared to pay for the vehicle.

The current position, as from December 2012, is that a non executive chairperson can purchase his vehicle at 20% of book value. The company has decided to come up with a resolution to cover or protect a certain individual so that he can benefit by purchasing his vehicle when he leaves the company.

The witness contended that although there was no resolution allowing chairpersons to purchase their official vehicles, there was an understanding and a practice in place that allowed purchase of vehicles by non-executive chairpersons. The witness conceded that his letter of appointment does not mention the right of retention of the vehicle on termination of the appointment. He expected that the company would offer him the vehicle as shown by precedent. He is holding onto the vehicle for justice to prevail and wants the parties to negotiate and if he is given a fair price he will pay. Without prejudice negotiations have failed.

The evidence of Mr Fortune Chasi, to the effect that previous non-executive chairpersons were offered to purchase their issues and that same may have taken the offers, was admitted by consent of both parties.

The issue that will dispose of this dispute is whether the defendant is entitled to possess the plaintiff's car by reason of the fact that the same ought to have been offered to him for purchase because former non–executive directors were offered their issues.

The rei vindicatio is a common law remedy which is based on the principle that an owner of property cannot be deprived of his property without his consent and is entitled to recover it from any person who possesses it without his consent.

In Chetty v Naidoo 1974 (3) SA 13 the court recognised that an owner has exclusive possession of his property and that no other person may withhold that right from the owner unless he is vested with an enforceable right against the owner. Similar sentiments were expressed by MALABA J…, in the case of Stanbic Finance Zimbabwe v Chivhunga 1999 (1) ZLR 262 (HC) where he made the following remarks;

“The owner may claim his property wherever found, from whosoever is holding it. It is inherent in the nature of ownership that possession of the rei should normally be with the owner and it follows that no other person may withhold it from the owner unless he is vested with some right enforceable against the owner (e.g. a right of retention or a contractual right). The owner, in instituting a rei vindicatio, need, therefore, do no more than allege and prove that he is the owner and that the defendant is holding the res; the onus being on the defendant to allege and establish any right to continue to hold against the owner.”

See also Oakland Nominees v Gelria Mining & Investment Co. Limited 1976 (1) SA 441 (A).

A litigant seeking to rely on the plea of rei vindicatio must prove the following;

(i) That he is the owner of the property in question. See Jolly v Shannon and Anor 1998 (1) ZLR 78 (HC).

(ii) Once ownership is proved, its continuation is presumed. See Stanbic Finance Zimbabwe v Chivhunga 1999 (1) ZLR 262 (HC).

(iii) He must also prove that at the time of commencement of the action, the defendant was in possession of the property. See Masuli v Jera HH67-07.

(iv) He is enjoined to prove that the defendant's possession was without the plaintiff's consent or concurrence.

The law does not permit that a property owner be deprived of his property against his will and is entitled to recover it from any person who possesses it against his will. See Stanbic Finance Zimbabwe v Chivhunga 1999 (1) ZLR 262 (HC). Once ownership has been proved, the onus is on the defendant to prove a right of retention. See Chetty v Naidoo 1974 (3) SA 13, Claudius Chenga v Virginia Chikadaya and Ors SC07-13.

In Introduction to Law, C.G Van Der MERWE and J.E Du PLESSIS summarises the defences available in a vindicatory action as follows;

1. The defendant had acquired the property by prescription;

2. The third party is the owner;

3. The property was alienated or destroyed; or

4. The defendant has a superior contractual right to possess.

In Oakland Nominees v Gelria Mining & Investment Co. Limited 1976 (1) SA 441 (A) HOLMES JA said the following on the requirement placed on the defendant to have an enforceable right against the owner;

“Our law jealously protects the right of ownership and the correlative right of the owner in regard to his property, unless, of course, the possessor has some enforceable right against the owner.”

It is common cause that the plaintiff is the owner of the vehicle in issue and the defendant has possession of it. The plaintiff avers that the defendant possesses the vehicle without its consent.

The defendant conceded that he is in possession of the vehicle without the plaintiff's consent or concurrence. The defendant did not pursue his stance that he is entitled to the vehicle as a terminal benefit. The thrust of his defence was that he is entitled to possess and purchase the vehicle because former chairpersons were allowed to purchase their issues and he expected that he would be offered to purchase his vehicle in accordance with that practice. He alluded to a resolution passed in December 2012 which enables the incumbent chairperson to purchase his issue.

The plaintiff conceded that former chairpersons may have been offered their issues. The plaintiff's motor car policy covers employees - other than Directors. It does not cover non-executive Directors whose benefits are covered by resolutions of the Board. There is no vehicle policy or Board resolution entitling the defendant to purchase the vehicle at the end of his term. There is no contractual right to possess the vehicle. There is also no proof of an offer to purchase the vehicle either express or implied.

I am not in agreement with the defendant's contention, in his closing submissions, that he was offered directorship on the understanding that the plaintiff would offer him his last car provided that he had to pay for it.

There is simply no evidence to support that assertion.

In the absence of a car policy Board resolution entitling him to purchase the vehicle, or an offer to purchase the vehicle, the defendant does not have a claim of right over the vehicle.

The defendant is trying to arm twist the plaintiff into selling the vehicle to him on the premise that other directors have previously been offered to buy their own issues. This state of affairs does not entitle him to purchase the vehicle. The fact that the plaintiff offered previous directors their vehicles after the termination of their contracts does not bind the plaintiff to sell this vehicle to the defendant. The plaintiff has no obligation to sell the vehicle to him.

The defendant is holding the vehicle against the wishes of the plaintiff.

It is entirely in the discretion of the plaintiff whether to offer the vehicle to him. The court would err were it to compel the plaintiff to sell the vehicle to the defendant in the absence of an offer to sell the car or proof of some other entitlement. Similar sentiments were expressed by NDOU J in Dhege v Dell Medical Centre HB50-04 where he remarked as follows;

“In the circumstances, it cannot be argued that the respondent…, was obliged to sell the company car to applicant. The court cannot compel a party to exercise its discretion in a particular fashion. The court can compel a party to do what is mandatory in terms of an existing agreement. The right to purchase the company car could only be exercised after an offer had been made to the employee and not before. The option to offer for sale, cars used by employees, was a privilege and not a right.”

The defendant's right to use the vehicle ceased when he left the plaintiff's company. The fact that other directors were allowed to purchase their issues does not confer rights on him to purchase the vehicle.

I agree with counsel for the plaintiff's contention that the hope and expectation of an offer does not justify possession of the vehicle.

The defendant's expectation that the vehicle would be sold to him is not legitimate. His hold on to the vehicle is unlawful. The defendant has failed to show that he has contractual or enforceable rights against the plaintiff. He has no legal justification to continue holding onto the plaintiff's vehicle. The applicant is entitled to the order sought.

In the result it is ordered as follows:

1. The defendant is ordered to return Toyota Land Cruiser registration number ACF 1290 within 7 days of the service of this order on him.

2. Should the defendant fail to comply with this order, the Deputy Sheriff be authorised to seize from the defendant a Toyota Land Cruiser registration number ACF1290.

3. Costs of suit.

This was an opposed court application that I heard on 16 September 2013. Soon after argument I issued the following order:

“1. The Respondent's objections in limine are dismissed.

2. The Applicant's application to delete “(Private)” in the name of the Respondent [and] in its place to substitute “(Zimbabwe)” is granted.

3. It is hereby declared that the Applicant is entitled to purchase [the] motor vehicle, namely, a Mazda Familia Registration number AAM 7769 at 10% of its market value.

4. The Respondent is directed to cause an evaluation of the said motor vehicle to establish its open market value and to sell to the Applicant the vehicle at 10% of the market value so established.

5. The Respondent shall pay the costs of suit.”...,.

In this matter the applicant sought an order declaring, in the main, that she was entitled to purchase a certain Mazda Familia motor vehicle, registration no. AAM 7769 (hereafter referred to as “the motor vehicle” or “the vehicle”), at 10% of the market value. The facts were largely common cause. They were these;

The applicant had just resigned from employment with the respondent after five years. The motor vehicle had been a company car issued to her in terms of the respondent's motor vehicle policy. She applied to buy it. Initially, the sole dispute was whether the applicant was entitled to buy the vehicle at 10% of the market value as she contended, or at the market value, less 10%, as the respondent contended. The applicant based her claim on a document that she said was the relevant motor vehicle policy that governed her employment.

The respondent based its contention on another document that it said was the amended policy that had been introduced during the applicant's tenure of employment and which, allegedly, had replaced the applicant's document.

With time, the dispute escalated to include the argument that the sale of any company vehicle to incumbent holders was at the discretion of the respondent as the employer and owner of such vehicles and that in the applicant's case, the respondent had decided against selling. It was also argued that when initially the respondent had communicated its offer to her the applicant had purported to accept something else which had not been in the respondent's offer....,.

The crux of the matter before me was which of the two documents touted by the parties as the motor vehicle policy governed the applicant's employment at the relevant time?

Two other issues raised, somewhat belatedly, were;

(1) Whether or not the respondent had agreed to sell the motor vehicle to the applicant; and

(2) If it had, at what price?

I had no hesitation in dismissing the respondent's document. In my view, it was a clumsy counterfeit.

Both documents were fairly extensive and comprehensive. One remarkable thing about them was that the print, the font, the graphics, the design, the layout and virtually everything else, was identical. Even the wording was identical, except only in the one clause germane to the dispute. That was clause 11.0. In my view, that was where the respondent got caught out.

I shall demonstrate this.

The heading on the applicant's document, in upper case, was “MOTOR VEHICLE POLICY NO. 1 OF 2008”. The respondent argued that this document had been amended or replaced in May 2011. Incidentally, the applicant had resigned from employment in June 2011. If the applicant's document had been amended or replaced in May 2011, one would reasonably expect the amending or replacement document to reflect the date of its own inception or, at least, to say something different somewhere. But except for clause 11.0, it did not.

The respondent's document was also headed, in identical font and case, “MOTOR VEHICLE POLICY NO. 1 OF 2008”. The second part of the heading of the applicant's document read “AMENDMENT NO.1 OF JANUARY 2011”. The respondent's document was also headed “AMENDMENT NO.1 OF JANUARY 2011”.

How could both documents purport to be the same amending document and purport to be amending the same old policy?

But, that was not all.

On the applicant's document, after the headings, there followed some twelve main clauses, some with sub-clauses. These were spread over some nine pages, starting with clause 1.0 up to clause 12.0. The contentious clause, 11.0, headed “DISPOSAL”, was towards the bottom of page nine on the applicant's document. It was exactly the same on the respondent's document; the only difference being that in the case of the respondent's document, clause 11.0 occupied a slightly larger space, and, consequently, left not enough room for the next clause, namely, cause 12.0. Both documents indicated that they went up to page ten. However, page ten of the applicant's document was not attached. But this was immaterial. It was not even an issue. The dispute centred on clause 11.0.

I shall come to it in a moment. For now, I continue with my analysis of the other areas so as to place clause 11.0 in context.

Clause 1.1 on the applicant's document said; “This amended policy shall be effective from 1^st May of 2011 and its implementation will not be in retrospect.”

The corresponding clause on the respondent's document said exactly the same thing. On the foot of every page on the applicant's document were boxes with names and signatures of two of the respondent's officials who had prepared and approved the policy. In the boxes, apart from the names and the signatures, were three inscriptions stating that it was Motor Vehicle Policy No.1 of 2011, which was effective from 1 May 2011 and was replacing Policy No.1 of 2008. It was exactly the same thing on the respondent's document.

The respondent continued to argue that its document replaced the applicant's document in May 2011 but gave no exact date when this had been. I rejected that contention. It was manifestly untruthful. How could the respondent's document be effective from the same date as that of the applicant's?

The respondent accepted the applicant's document as genuine.

So, if the applicant's document had been first in time, as the respondent acknowledged, how then could its own document apply retrospectively given that clause 1.1 in both documents was against retrospective application?

The applicant maintained that the respondent's document was a fabrication. She said if at all it had been brought in at some stage, then it could only have been after her departure as nobody had brought it to her attention during her tenure.

That sounded plausible enough to me.

The next clause after clause 11.0 on the applicant's document was an incomplete clause 12.0 headed “EXISTING VEHICLES”. Its sub-clause [i.] was accommodated on the bottom of page nine. The whole of clause 12.0 on the respondent's document was on page ten. None of its sub-clauses could be accommodated on page nine. That was because on the respondent's document clause 11.0, the bone of contention, had some words altered, some added in, and a whole new sub-clause inserted. On the applicant's document clause 11.0 read as follows:

“11.0 DISPOSAL

(i) On the attainment of 120,000km mileage, comprised of monthly allowable business and private mileage or upon attaining of 5 years of age, provided the vehicle has been in use for a minimum of 3 years, the vehicle may be offered to the employee for purchase.

(ii) An employee whose vehicle is being replaced will have the right of first refusal offer to purchase the vehicle at 10% of open market value or at book value, whichever is the lesser.”

On the other hand, clause 11.0 on the respondent's document read like this:

“11.0 DISPOSAL

(i) Upon the attainment of 5 years of age, provided the vehicle has been in use for a minimum of 3 years, the vehicle may [author's emphasis] offered to the employee for purchase.

(ii.) The vehicle may be purchased at market value less 10% or depreciated net book value, whichever is the lesser.

(iii) The Group Chief Executive Office will approve the disposal of all company cars.”

It was not difficult to see that the new clause 11.0 in the respondent's document had far reaching changes which constituted a serious diminution of rights and benefits accorded to employees under the old policy. Demonstrably, those changes were meant to ward off the applicant's claim.

For example, and to begin with, the applicant's clause 11.0 only had two sub clauses. The respondent's had three. Next, the reference to a mileage of 120,000 kilometres in the applicant's document was completely scrapped off in the respondent's. It was common cause that the applicant's vehicle had clocked over 165,500 kilometres on the dash board. Furthermore, by highlighting, in the respondent's document, the word “may” in the obligation to offer the vehicle for sale, it was obviously meant to emphasize the discretion of the employer in that regard - that was the bulwark of the respondent's argument at the hearing.

However, and more importantly, the price at which the vehicle could be sold was increased phenomenally from 10% of the open market value to a market value less 10%. The whopping difference was dramatized by the figures that were disclosed in the papers. After some three valuations the vehicle's open market value had been agreed at $3,500. The applicant had tendered $315, being the 10% of the market value less another 10%. The respondent rejected that and demanded a purchase price of $3,150 which was the market value less the 10%. Finally, in the new document, the respondent's highest office would now have to be involved in the disposal of such vehicles, something that was not there in the applicant's document.

There was nothing to suggest that clause 11.0 in the respondent's document was a genuine amendment. Even if it was, there was nothing to show that it had been effected during the applicant's tenure of employment, or that it had been brought to her attention and that she had consented to it. What I found probable was that clause 11.0 in the respondent's document had been inserted after the fact. Therefore, that document was not the actual motor policy vehicle that was in place during the applicant's tenure of employment. It was partly for that reason that I found for the applicant.

But, there were other reasons.

As pointed out before, the respondent's argument was further developed to say that it had the sole discretion to sell or not to sell company vehicles to incumbent users and that it was not obliged, in terms of the motor policy, to sell to the applicant.

Predictably, the spotlight was on the word “may” to stress the discretion reposed in the respondent in that regard.

The respondent's argument was also developed to say that even if I found that it had agreed to sell to the applicant, the sale was not perfecta, allegedly because what the respondent had offered is not what the applicant had accepted. It was put this way in the respondent's heads of argument:

“6.2 Further, for a contract to be formed it is necessary that the offeree must, in agreeing, accept the exact terms offered by the offeror. Where the offeree makes a counter-offer or signifies a qualified acceptance of the offer, the offer is taken to have been refused and no contract is formed – see Orion Investments (Private) Limited v Ujaama (sic) Investments (Private) Limited 1987 (1) ZLR (sic).

6.3 The Applicant was made an offer to purchase the vehicle, the Applicant accepted an offer that was not made to her, and, as such, no contract came into existence.”

The fallacy in the respondents' two arguments above is exposed by the detail. It was abundantly clear from the motor vehicle policy that, among other things, the possession of a company vehicle for both business and private use for certain grades was an integral employment benefit. It was said company vehicles were provided for those grades as part of a competitive, market-related package to cater for the employees' specific operational needs so as to capture best and modern reward practices. Clause 3.1 was more succinct:

“3.1 There are two reasons why the Company issues motor vehicles to employees. The first is due to seniority of the employee, such as a manager, in order that he or she can undertake the work necessary at the level at which that person is employed and also as part of the remuneration package of that individual. These will be issued with Company cars.”

I am not suggesting for a moment that the right of an employee to a company vehicle entails the right to buy it. But, in this case, it was against the philosophy of the respondent on company vehicles, as set out above, that I had to consider clause 11.0. It was the clause that provided for the sale of company vehicles to incumbent holders. That philosophy was further elucidated in clause 4.3 as follows:

“4.3 A 'company car' is one allocated to an individual in recognition of one's managerial status. It is a benefit accruing to an individual as part of his or her conditions of service. The employee is entitled to use it for both company and personal business, subject to the provisions of this policy.”…,.

Thus, in a nutshell, and in my own words, at the respondent's company, company vehicles were a reward or benefit for certain senior grades. They were an integral part of the conditions of service.

The applicant had been employed by the respondent as Group Audit Manager. It was common cause that her grade entitled her to a company car. It was also common cause that for her grade, and, in particular, in terms of clause 11.0, she was entitled to expect the respondent to sell her the vehicle after it had clocked a mileage of 120,000 kilometres, or had reached the age of five years if it had been in use for not less than three years. The applicant was also entitled to expect that when the respondent offered her to purchase the vehicle the purchase price would be 10% of the market value.

In my view, such expectation could not be taken away unilaterally by the respondent. To take it away, as the respondent had purported to do with its document, would amount to an unlawful diminution of the applicant's conditions of service: see Administrator, Transvaal and Ors v Traub and Ors 1989 (4) SA 731; Dube v Chairman, Public Service Commission & Anor 1990 (2) ZLR 181 (H); Health Professions Council v McGowan 1994 (2) ZLR 392 (S); Affretair (Pvt) Ltd & Anor v MK Airlines (Pvt) Ltd 1996 (2) ZLR 15 (S); Taylor v Minister of Education & Anor 1996 (2) ZLR 772 (S); Kanonhuwa v Cotton Co. of Zimbabwe 1998 (1) ZLR 68 (H); and Air Zimbabwe (Pvt) Ltd v Zendera & Ors 2002 (1) ZLR 132 (S).