Administrative Law re: Approach, Discretionary Powers, Judicial Interference and the Doctrine of Legitimate Expectation

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HMA28-20 : TRIANGLE LIMITED and HIPPO VALLEY ESTATES vs ZIMBABWE REVENUE AUTHORITY and OTHERS
Ruled By: ZISENGWE J

Equally untenable is the argument advanced on behalf of the second (Zimbabwe Sugar Cane Development Association), eighth (Chipiwa Mpapa Mill Group) and tenth (Farai Dumo Augustine Musikavanhu) respondents that the very fact that ZIMRA has deemed that the 23 percent milling charge as being inclusive of value added tax (VAT) ...

SC65-18 : PIONEER TRANSPORT vs MAFIKENI
Ruled By: GARWE JA, MAVANGIRA JA and BHUNU JA

This is an appeal against a judgment of the Labour Court wherein the decision to dismiss the appellant from employment that had been made by the appellant's Managing Director was set aside whilst an earlier decision by the disciplinary committee, that the respondent be issued with a second written warning, was confirmed.

The facts of the matter may be summarized as follows;

The respondent was employed as a Creditor's Clerk by the appellant. He was charged with a number of acts of misconduct. He denied all the charges. A hearing was conducted by the disciplinary committee. On 30 January 2014, the Human Resources Manager communicated the disciplinary committee's decision to the respondent in the following terms:

“RE: DETERMINATION ON HEARING

Reference is hereby made to the internal disciplinary hearing finalized on 29 January 2014 in respect (of) cases in terms of SI67 of 2012 Annexure 2 Action Code:

(i) Offence number 2; 2.2 – Gross incompetence or inefficiency in performance of work.

(ii) Offence number 2; 2.3.1 - Gross negligence.

(iii) Offence number 3; 3.7 – Insubordination.

(iv) Offence number 3; 3.14 - Wilful disobedience of a lawful order given by the employer.

After deliberations, the hearing committee passed the following verdict:

(a) Presentation of case was not properly done.

(b) You need to change your attitude towards your job and to put more effort in your job.

(c) You shall report for duty to your normal duties with effective (sic) 1 February 2014.

In light of the above, the hearing committee then agreed that you be given a second written warning which will last for the period of 3 months.

If you are aggrieved with this decision, you have the right to appeal in terms of S.I.67 of 2012 appeal procedure.”

The complainant in the disciplinary hearing appealed to the Managing Director against the Disciplinary Committee's decision. There was no appeal by the respondent.

On 10 February 2014, the Managing Director wrote to the complainant in the following terms:

“Attention: COMPLAINANT
PIONEER TRANSPORT

Re: APPEAL AGAINST DECISION IN DOUGLAS MAFIKENI HEARING

I refer to your letter addressed to me dated 3 February appealing against the decision of the Disciplinary Committee in the hearing of Douglas Mafikeni passed on 29 January 2014.

I have read through the minutes of the hearing and looked at the deliberations made, and have come to the conclusion, that, the disciplinary committee made an error in coming up with the determination.

It is very clear that Douglas Mafikeni (sic) failed to meet set deadlines and submitted creditor's listing (sic) that was grossly incorrect showing a very high level of incompetence. Despite him having been given a written warning three months earlier he still failed to improve performance in executing his duties.

Matters of discipline are determined on a balance of probability, and, as such, all these factors of failure to meet deadlines, production of incorrect creditors listing even after having been given an extension. (sic)

THEREFORE, in light of the above, I hereby overturn the determination by the Disciplinary Committee, and the respondent is found guilty of the charges and the penalty is dismissal. The respondent (sic) should be dismissed effective 12 February.”…,.

On 12 February 2014, a letter was written by the Human Resources Manager to the respondent. It reads:

“This letter serves to inform you, that, following a disciplinary committee hearing that was concluded on 29 January 2014, where the disciplinary committee made a decision to give you a second warning, an appeal was made by the complainant against that decision in terms of Part E section E1.1 of the SI67 of 2012. (sic)

A decision was made by the office, made from the office (sic) of the Managing Director, as defined in Part A4 (definitions) of the Sixth Schedule, overturning the decision of the disciplinary committee.

The decision to overturn the disciplinary committee ruling was based on the fact that you failed to meet set deadlines, you also presented a creditors listing that was grossly incorrect showing a very high level of incompetence.

It is against this background that you were found guilty in terms of SI67 of 2012 Annexure 2 sections 2.2, for gross incompetence, section 2.3.1, section 3.7 and section 3.14.

You are therefore being dismissed from Pioneer Transport with effect from 12 February 2014 and you are further advised that you have the right to appeal to the Labour Court against this decision in terms of Part E section E.3 of the Sixth Schedule within 21 working days.”

Aggrieved by the decision to dismiss him, the respondent appealed to the court a quo, arguing, inter alia, that the Managing Director had erred in considering an earlier written warning which had, in any event, expired. The appellant's contention, on the other hand, was that the earlier written warning was relevant and was therefore properly taken into consideration.

The court a quo approached the matter as one in which it needed to examine whether the appellant, as the employer, had exercised its discretion judiciously in light of section 12B(4) of the Labour Act, on the basis that it could only interfere with such discretion if it was not so exercised.

The court a quo found, that, the earlier written warning had expired, and that, therefore, the Managing Director had misdirected himself in giving any consideration to it. On that basis, the court then interfered with the appellant's decision and set aside the dismissal imposed by the appellant's Managing Director but confirmed the disciplinary committee's decision that a written warning be issued.

It may be noted at this juncture, that, the respondent averred that the first written warning is non-existent as the appellant failed to produce a copy of it in the disciplinary hearing and to the court a quo.

The appellant has not shed any light on this issue.

The appellant has now appealed to this court against the court a quo's decision on the following grounds:

(i) The court a quo grossly erred at law in interfering with the penalty of dismissal for a misconduct that goes to the root of the contract;

(ii) The court a quo erred at law in making a finding, that, an expired warning cannot be treated as a record of employment service when imposing penalty contrary to the provisions of section 12B(4) of the Labour Act [28:01] which makes it mandatory to consider such;

(iii) The court a quo misdirected itself, factually, which misdirection amounts to a point of law, in that it made a finding that the decision of the Appeals Officer to impose a penalty of dismissal was solely hinged on the issue of a previous warning which was not the case as the Appeals Officer also considered other factors like the gravity of the offence, inter alia.

The appellant's prayer (as amended) is for an order that the appeal is allowed and that the decision of the court a quo be set aside and substituted with the following:

“That the appeal be and is hereby dismissed with costs.”

The last paragraph of the letter dated 30 January 2014, to the respondent, informing him of the decision of the disciplinary committee, pointed him to S.I.67 of 2012 with regard to his right to appeal should he be aggrieved.

He did not appeal.

As already pointed out earlier, an appeal was noted by the appellant's representative who was the complainant in the Disciplinary Committee hearing.

SI67 of 2012 is the “Collective Bargaining Agreement: Transport Operating Industry.”

It incorporates, in the Sixth Schedule thereof, the Code of Conduct applicable to the entire transport operating industry. Part E, in terms of which the complainant appealed to the Managing Director, provides as follows:

“E. APPEALS AND REVIEW OF MATTERS

A party which may be aggrieved by the decision of the Disciplinary Committee, as per D.1 above, may, within 5 days –

E.1 Appeal to the Chief Executive.

E.1.1 Appeals to the Chief Executive where the issue involves dismissal or any form of termination of employment shall be in writing, and shall state the grounds of appeal.”

By stating that “a party which may be aggrieved…, may appeal” the section gives the right to appeal against the decision of the disciplinary committee to any party - including an employer who may be aggrieved by the committee's decision.

Thus, whilst it is generally undesirable for an employer to appeal against decisions that are usually viewed as decisions of its own internal disciplinary bodies; in casu, the applicable law, that is to say, the Statutory Instrument, allows, in clear terms, for an appeal against the decision of the disciplinary committee by a “party which may be aggrieved.”

Accordingly, the employer, being an aggrieved party, acted within its statutory rights in appealing against the decision of the disciplinary committee.

The respondent's averments that he was not served with a copy of the said appeal and that he was not invited to make any submissions in relation thereto were not challenged.

In addition, note is also taken that the letter that triggered the complainant's appeal to the Managing Director is not part of the record. The appellant's legal practitioner was unable to shed any light regarding the non-availability of the letter on the record.

A fundamental rule of natural justice was broken when the Managing Director made the decision that he did without hearing the respondent.

As the respondent was not served with a copy of the appeal letter, only the appellant and its Managing Director are privy to the details of the appeal.

The proceedings before the Managing Director fell foul of the axiomatic requirement of the rules of fair play in the delivery of justice.

A decision that affects the respondent was made without him being heard by the maker of the decision.

In Musarira v Anglo American Corporation 2005 (2) ZLR 267 (S) the following was said:

“I would point out here, that, as long as a charge of misconduct is preferred by an employer against an employee, there is always a certain element of institutional bias, as the employer is the offended party. However, this happens to be the situation in all misconduct cases. What is important is that the misconduct matters are dealt with in a manner that is fair and impartial and that the rules of natural justice are followed.

The rules of natural justice, in such a case, are that the party concerned –

(a) Must be given adequate notice;

(b) Must be heard or be able to present his/her side of the story; and

(c) Should be allowed to call witnesses if he/she so wishes.

See Dabner v SA Railways and Harbours 1920 AD 588 at 598.”

In casu, the respondent was not heard in the appeal before the Managing Director. By reason thereof, the said appeal proceedings must be set aside.

So axiomatic is the audi alteram partem rule, that it would be unconscionable for this or any court to uphold proceedings wherein the rule was not complied with.

The proceedings before the Managing director are a nullity.

The Labour Court did set aside the Managing Director's decision - but for different reasons.

It decided the matter on the merits, and, in doing so, it erred.

The proceedings before the Managing Director having been a nullity, the appropriate course would have been for the court a quo to remit the matter to the Managing Director for a hearing that accords with the rules of natural justice.

In the circumstances, the decision of the Managing Director ought to be set aside.

It would, however, be undesirable to have the matter remitted to him for a rehearing. This is so because the fact that the Managing Director was prepared to and did determine the matter without hearing the respondent might justifiably create an impression of partiality on his part.

Justice must be seen to be done.

For these reasons, in the interests of justice, instead of having the court a quo remitting the matter to the Managing Director, this court will order that the Labour Court re-hear the appeal instead and ensure that the rules of natural justice are complied with.

Section 89(2)(a)(i) of the Labour Act empowers and enables the Labour Court to conduct such a hearing.

Labour matters ought not be dealt with and finalized on technicalities.

The rehearing of the matter by the Labour Court will ensure that this does not happen. This is so because if such a re-hearing is not ordered, especially after the nullification of the proceedings before the Managing Director, then, the merits of the matter would remain eternally undetermined, to the prejudice of one party or the other.

Section 89(2) of the Labour Act reads:

“(2)(a) In the exercise of its functions, the Labour Court may: in the case of an appeal –

(i) Conduct a hearing into the matter or decide it on the record; or

(ii) Confirm, vary, reverse or set aside the decision, order or action that is appealed against, or substitute its own decision or order; or

(iii)…,. (repealed); or

…,. (repealed).”

In Dalny Mine v Banda 1999 (1) ZLR 220 (S) McNALLY JA stated at 221B-C:

“As a general rule, it seems to me undesirable that labour relations matters should be decided on the basis of procedural irregularities. By this, I do not mean that such irregularities should be ignored. I mean that the procedural irregularities should be put right. This can be done in one of two ways:

(i) By remitting the matter for hearing de novo and in a procedurally correct manner;

(ii) By the tribunal hearing the evidence de novo.”

He continued at 222B:

“The point I am making is that when the Tribunal decides, as it did in this case, to exercise its powers under section 97(4)(a) of the Act, and to 'proceed with the appeal by way of a hearing' then it is starting afresh, as it were, on a clean page. The errors of the past are no longer relevant.”

He continued further at 222D:

“It does not seem to me, with respect, to be a compliance with section 4(1) if the Tribunal, for technical reasons, compels an employer to reinstate (or pay damages to) a person who has been clearly shown to have committed a dismissible offence.”

The applicable statute in Dalny Mine v Banda 1999 (1) ZLR 220 (S) was the Labour Relations Act. Section 97(4)(a) of that Act is similar to section 89(2)(a) of the Labour Act which is the applicable statute in casu.

Section 97(4)(a) of the Labour Relations Act [Chapter 28:01] (Act No.16 of 1985 as amended by Act No.20 of 1994) reads:

“Upon receiving notice of an appeal, the Tribunal may –

(a) Proceed with the appeal by way of a hearing; or

(b) Decide the appeal on the record; or

(c) Remit the matter to the senior labour relations officer concerned for further investigation, and, upon the conclusion of such investigation, proceed with the appeal by way of a hearing or decide the appeal on the record.”

The similarity in the wording of the relevant portions of the two sections (89(2) and 97(4)(a)) of the current and repealed statutes respectively) justifies the applicability of the reasoning as cited above from Dalny Mine v Banda 1999 (1) ZLR 220 (S) to the instant case.

In the result, the appeal succeeds for reasons different to those raised in the grounds of appeal, and, consequently, with a result different to that in the appellant's prayer.

Accordingly, the following order is made:

1. The appeal is allowed.

2. The judgment of the Labour Court be and is hereby set aside.

3. The matter is remitted to the Labour Court for a rehearing of the appeal before a different judge of that court.

4. Each party shall bear its own costs.

SC102-21 : DOVES FUNERAL ASSURANCE (PVT) LTD vs FERNABY INVESTMENTS (PVT) LTD and QUECOM ENGINEERING (PVT) LTD and DENNIS NGORIMA and STANDARD CHARTERED BANK LTD and HOMELAND REAL ESTATE and THE SHERIFF
Ruled By: BHUNU JA, MATHONSI JA and CHITAKUNYE JA

It occurs to me, that, the failure by the appellant to file written opposition to the request for setting aside the sale made to the Sheriff, as required by Rule 359(4) of the High Court Rules, could not give rise to a default judgment.I do not read Rule 359(4) and ...

SC105-21 : WALTER MAGAYA vs ZIMBABWE GENDER COMMISSION
Ruled By: GOWORA JA, PATEL JA and UCHENA JA

The appellant is a clergyman of the Prophetic Healing and Deliverance Ministries, commonly known as the PHD Ministries.

The respondent is the Zimbabwe Gender Commission (“the Commission”), an independent commission provided for in accordance with section 245 of the Constitution and established as a body corporate in terms of section 2 of the Zimbabwe Gender Commission Act [Chapter 10:31] (the “Act”).

Its functions are set out in section 246 of the Constitution as being:

“(a) To monitor issues concerning gender equality to ensure gender equality as provided in this Constitution;

(b) To investigate possible violations of rights relating to gender;

(c) To receive and consider complaints from the public and to take such action in regard to the complaints as it considers appropriate;

(d) To conduct research into issues relating to gender and social justice, and to recommend changes to laws and practices which lead to discrimination based on gender;

(e) To advise public and private institutions on steps to be taken to ensure gender equality;

(f) To recommend affirmative action programmes to achieve gender equality;

(g) To recommend prosecution for criminal violations of rights relating to gender;

(h) To secure appropriate redress where rights relating to gender have been violated; and

(i) To do everything necessary to promote gender equality.”

On 23 August 2019, the Zimbabwe Gender Commission (Commission) issued General Notice 1444 of 2019 which it published in the Government Gazette. The General Notice authorized the respondent to conduct an investigation into complaints of sexual abuse, generally, made against the appellant.

In response, on 3 September 2019, the appellant filed an application with the High Court for a review of the decision by the respondent to launch the investigation pursuant to the General Notice.

He followed this up with an urgent chamber application in which he sought, by way of interim relief, an interdict against the conduct of the investigation by the respondent.

On 22 October 2019, the High Court dismissed the urgent chamber application with costs. This appeal is against that judgment.

PROCEEDINGS IN THE COURT A QUO

In seeking relief before the High Court, the appellant attached a draft order in which he sought the following:

“TERMS OF THE FINAL ORDER SOUGHT

That you show cause to this Honourable Court, if any, why a final order should not be made in the following terms;

1. General Notice No.1444 of 2019 published in the Gazette of 23 August 2019 be hereby declared null and void and of no force and effect.

2. That the intended investigations of the applicant, for sexual abuse by the Respondent, in terms of General Notice No.1444 of 2019, published in the Gazette of 23 August 2019, be and are hereby permanently stayed.

3. Costs will be costs in the cause.

TERMS OF THE INTERIM RELIEF GRANTED

1. Pending the determination of this matter on the return day, the intended investigations of the Applicant, for sexual abuse by the Respondent, in terms of General Notice No. 1444 of 2019, published in the Gazette of 23 August 2019, be and are hereby stayed.”

In his application for an interdict, the appellant averred that he had sought the review of the decision to cause an investigation against him on allegations of sexual abuse arising from complaints laid against him.

He contended, that, in the review, he sought to challenge the jurisdiction of the Zimbabwe Gender Commission (Commission) in respect of the General Notice as well as the intended investigation into the alleged complaints of sexual abuse.

He averred, that, the contemplated investigations were imminent, and that, by his reckoning, were due to commence, at the earliest, by 12 September 2019, by which date his application for review would not have been determined, and, that, the mere pendency of the application would not stop the Zimbabwe Gender Commission (Commission) from proceeding with the investigation of the alleged complaints of sexual abuse.

He contended, that, he had good prospects of succeeding on the review and that his rights from the review process would be rendered nugatory if the investigations were not halted pending the review.

His stance was that neither the Constitution nor the Zimbabwe Gender Commission Act [Chapter 10:31] afforded the Zimbabwe Gender Commission (Commission) the authority to conduct the contemplated investigation. To that extent, any investigation by the Commission constituted an illegality.

He contended further, that, what the Commission intended from the published notice was outside its statutory mandate, and, as a result, the appellant was entitled to the protection of the law which he was seeking from the court. Thus, it was only right that the court issue an interdict against the Zimbabwe Gender Commission (Commission).

Over and above the averments referred to in the aforegoing, the appellant contended, that, even if the Zimbabwe Gender Commission (Commission) had the authority to conduct an investigation, the methodology it had employed violated his constitutional rights and legal principles and rules governing evidence such as that which the Commission wished to gather. The methods adopted would lead to a compromised result which would cause him to suffer irreversible harm.

He averred that the balance of convenience was in his favour, and that, if he was not granted the relief sought, he would suffer unconscionable irreparable harm in that he would 'be put out of pocket and suffer permanent impairment of his personal dignity which no other process could remedy.' He did not have any other remedy that he could employ to stop the process which he considered illegal.

He opined, that, the Zimbabwe Gender Commission (Commission), on the other hand, would not suffer any prejudice if its intended investigation were halted.

The Zimbabwe Gender Commission (Commission) opposed the application.

It maintained, that, it had investigative functions in terms of the Constitution and its enabling Act. It contended, that, under the provisions of section 5 of the Zimbabwe Gender Commission Act [Chapter 10:31], an investigation is preceded by the promulgation of a notice in the Government Gazette and the publishing of such notice in one or more national newspapers informing the public of its intention to investigate a systemic barrier as provided in the Zimbabwe Gender Commission Act.

The Zimbabwe Gender Commission (Commission) contended, that, the notice it issued was lawful and provided for by law.

It averred, that, it had received numerous complaints of alleged sexual abuse from numerous quarters against the appellant which necessitated the issuance of the notice to facilitate the conduct of investigations into the said complaints.

It denied suggestions by the appellant that it had neither the mandate nor the authority to proceed as intended.

In so far as the prospects of success were concerned, the Zimbabwe Gender Commission argued that there were none.

It pointed to the averment by the appellant, that, there were numerous complaints against him, some of which were the subject of police investigations. The Commission averred, that, an investigation under section 5 of the Zimbabwe Gender Commission Act can only be possible where complainants and witnesses have come forward with allegations pointing to the possibility of the existence of alleged violations.

DETERMINATION BY THE COURT A QUO

The court a quo decided the application on the sole issue of whether or not the applicant's rights were likely to be violated. It said the following:

“I do not see how the applicant's rights may be violated by the investigation. He has a right to legal representation. The investigation itself is not of a criminal nature, in the sense that the respondent is not endowed with any power to impose any sanction consequent to an investigation.”

The court a quo concluded, that, the Zimbabwe Gender Commission (Commission), had, under section 7 of the Zimbabwe Gender Commission Act, the power to conduct an investigation, and, where the investigation reveals systemic barriers prejudicial to gender equality, etc, after informing the Minister, make a report to Parliament on its findings.

The court a quo found, that, there was no immediate impact on the appellant from the investigation as contemplated by the Zimbabwe Gender Commission.

THE APPEAL

The grounds of appeal are framed as follows:

“1. The court a quo misdirected itself in totally misconstruing the application before it as one for the setting aside of investigations and so erred when consideration is given to the fact that the application was actually meant to interdict the holding of unlawful investigations.

2. The court further erred in concluding, that, protection against harm to fama cannot, at law, be sought through urgent interdictory relief and so erred in arriving at a finding which is contrary to established and well-regarded authority.

3. Having found that respondent had instituted an investigation in terms of section 5 of the Gender Commission Act [Chapter 10:31] and having concluded that the issues it sought to investigate were outside the remit of the powers contained in that provision, the court a quo erred in not concluding that appellant had prospects of success in the review application and was consequently due the remedy of an interdict.

4. A fortiori, the court a quo erred in failing to appreciate that the principle of legality requires that when challenged, the exercise of public power must be justified on the basis upon which it has been specifically exercised, and that, for that reason, the notice impugned not having been properly given in terms of section 5 of the Act could not be held valid on the basis of constitutional provisions.

5. Having come to the conclusion that the process which had been instituted by the respondent was pointless and abortive, the court a quo erred in not concluding that appellant's rights were imperilled by having to be required to go through a sham and that he was consequently entitled to protection since the balance of convenience was in his favour.”

ARGUMENTS ON APPEAL

Counsel for the appellant commenced his argument by challenging the jurisdiction of the Zimbabwe Gender Commission (Commission) to conduct the investigation as set out in the General Notice.

He submitted that the General Notice had not been issued in terms of the Zimbabwe Gender Commission Act [Chapter 10:31].

He added, that, the court a quo had itself queried the necessity by the Commission to publish the General Notice, which it said was inconsistent with the Zimbabwe Gender Commission Act, and suggested that the court a quo had implied that section 5 of the Zimbabwe Gender Commission Act was inappropriately relied upon by the Commission.

Counsel for the appellant argued, that, before the court a quo, the appellant was called upon to establish a prima facie case.

He stated that the Zimbabwe Gender Commission (Commission) did not have jurisdiction to issue the General Notice.

He highlighted to this court, that, once the judge a quo made a finding that the investigation sought to be conducted by the respondent was not a section 5 process, it automatically followed that the court ought to have granted the relief sought by the appellant.

The court engaged counsel for the appellant to shed light on what he understood a General Notice to be.

To his credit, counsel accepted that a General Notice is in the nature of a statutory instrument and has the force of law.

The court also enquired from counsel whether it was possible, at law, for a court to grant an interdict the effect of which was to suspend the operation of a law that has legal force and effect.

In addition, the court directed counsel for the appellant, premised on the relief sought in the court a quo wherein the final order sought was the permanent stay of the investigations, and enquired of him whether the application for review was not a superfluous process given that the final order sought by the appellant was a permanent stay of the investigations.

Once granted by the court, in terms of the final order prayed for, the order would render the review application inconsequential.

Counsel for the appellant contended otherwise.

Per contra, counsel for the respondent submitted, that, owing to the exchange between counsel for the appellant and the court, the issue which arose for determination was whether or not a law can be set aside through an application for an interdict.

Counsel for the respondent contended, that, in view of the promulgation of the General Notice as a law, anything done pursuant thereto must be presumed to be valid.

She argued further, that, a court cannot interdict lawful conduct.

For this contention, she sought reliance on ZIMRA v Packers International SC28-16 and Mayor Logistics v ZIMRA CC07-14, which, according to her submissions, both underscored the principle that a challenge to law cannot be made in terms of an interdict.

She proceeded to argue that the Zimbabwe Gender Commission (Commission) had acted within the ambit of its powers as prescribed in terms of section 5 of the Zimbabwe Gender Commission Act in that systemic barrier to gender equality can emanate from the conduct of one person. In this regard, she argued, the appellant, being an influential leader of a great movement, it is that stature and influence that he seeks to protect.

Counsel went on to argue, that, the Constitution, in section 246, gave the Commission the mandate to carry out such investigations. She conceded, that, the functions stated in section 246 of the Constitution are not restated in the Zimbabwe Gender Commission Act but that this did not take away the Commission's authority to act in the manner that it did because the purpose of the Zimbabwe Gender Commission Act is not to restate what is in the Constitution but to augment the contents thereof.

Counsel for the respondent submitted, that, section 246 paragraphs (b) and (c) of the Constitution set out the investigative functions of the Zimbabwe Gender Commission (Commission). She also referred the court to section 2 of the Zimbabwe Gender Commission Act which defines “systemic barriers” and added that a reading of section 2 showed that the definition therein was not exhaustive, and, for that reason, the Commission took the view that organised worship is a sphere of activity as contemplated in the Zimbabwe Gender Commission Act.

In any event, counsel for the respondent argued, the Commission had decided not to proceed with the investigations and decided to await the outcome of the review application.

In response, counsel for the appellant indicated to the court, that, the authorities cited by counsel for the Commission were irrelevant and distinguishable to the present matter.

He argued, that, the General Notice was inconsistent with the Zimbabwe Gender Commission Act and this should have automatically translated to a prima facie case for the appellant enabling him to obtain relief from the court a quo.

He submitted, that, section 5 of the Zimbabwe Gender Commission Act does not allow the Commission to exercise the powers it purported to have exercised in terms of the General Notice.

He argued, that, there was no systemic barrier involved in casu that prejudiced gender equality or gender equity.

Also, the Commission was said to have failed to indicate the section of society that was to be investigated as envisaged by section 2(1) of the Zimbabwe Gender Commission Act.

In closing his submissions, counsel for the appellant stated, that, the methodology employed by the Commission was inappropriate and not in conformity with relevant provisions of the Zimbabwe Gender Commission Act.

Having said that, he prayed that the appeal be allowed and the decision of the court a quo be set aside.

ISSUE FOR DETERMINATION

The facts of the matter are not in dispute and the appeal falls for determination on the basis of the ratio decidendi of the court a quo.

Although the appellant raised numerous grounds of appeal, there is only one issue that arises for determination and is capable of disposing of this whole appeal.

The only issue is whether or not the court a quo was wrong in refusing the application for an interdict.

STATUS OF THE GENERAL NOTICE

The Zimbabwe Gender Commission (Commission) is imbued with an investigative mandate, both in terms of the Constitution and the enabling Act. It issued a General Notice, and the appellant seeks to challenge the decision to publish the Notice through the review that he has filed.

What is a General Notice?

A General Notice is a public notice published in the Government Gazette. A General Notice is in the same category as a statutory instrument. It is subsidiary legislation. It, therefore, has the force and effect of law.

It can also be viewed as a document that has legislative character, and, like any other law, it has legal force and effect.

It is an essential element of due process, and, therefore, once it is issued it must be complied with unless set aside. As a consequence, until and unless it has been set aside, anything done under or pursuant to such General Notice is lawful.

It is not necessary in this appeal to determine whether or not the Zimbabwe Gender Commission (Commission) exceeded its powers in issuing the General Notice. Whether or not the Notice is in accordance with the powers bestowed on the Commission is for the court hearing the application for review to decide.

HH169-13 : TROJAN NICKEL MINE LIMITED vs RESERVE BANK OF ZIMBABWE
Ruled By: MATHONSI J

It is WALLIS JA, with HARMS AJ, VAN HEERDEN JA, MALAN JA and PETSE AJA all concurring who waxed lyrical in Executive Officer of the Financial Services Board v Dynamic Wealth Ltd Ors 2012 (1) SA 543 when he said:“Ever since the bursting of the South Sea Bubble ...

It is WALLIS JA, with HARMS AJ, VAN HEERDEN JA, MALAN JA and PETSE AJA all concurring who waxed lyrical in Executive Officer of the Financial Services Board v Dynamic Wealth Ltd & Ors 2012 (1) SA 543 when he said:

“Ever since the bursting of the South Sea Bubble in 1720, governments have recognised the need, in the interests of the investing public, for regulation of the financial services industry.”

The plaintiff, a public company registered in Zimbabwe sued the defendant for payment of US$1,007,541=30 together with interest at the prescribed rate and costs of suit, being the plaintiff's money allegedly appropriated by the defendant from the plaintiff's bank in pursuance of a Monetary Policy Statement issued in terms of section 46 of the Reserve Bank Act [Chapter 22:15] (“the Act”) and a directive issued to banks in terms of section 35(1) of the Exchange Control Regulations, Statutory Instrument 109/96, SI109/1996.

The defendant is established in terms of section 4 of the Reserve Bank Act [Chapter 22:15] and is charged with, inter alia, the regulation of Zimbabwe's monetary system, the supervision of banking institutions, and the smooth operation of the payment system as well as acting as banker and financial advisor to, and fiscal agent of, the State.

It is salutary that the defendant performs these functions in order to regulate banking and protect the banking public.

In the discharge of its duties aforesaid, the defendant issued a Monetary Policy statement, on 1 October 2007, centralising all foreign currency accounts and directing the lodgement, at its doorsteps, of all corporate foreign currency balances held by authorised dealers.

One such authorised dealer is Banc ABC where the plaintiff maintained a foreign currency account.

In compliance with the monetary policy, and a subsequent directive issued by the defendant, Banc ABC lodged the plaintiff's foreign currency balance with the defendant.

That is the last time the plaintiff saw the money, as the defendant did not return it to Banc ABC as a result of which the plaintiff was unable to access that money.

The plaintiff then sued the defendant aforesaid seeking to recover the money but the defendant contested the action averring, in its plea, that, there was no causal nexus between the parties given that the plaintiff and the defendant did not enjoy any banking relationship and that the plaintiff should have proceeded against its Bank, that is Banc ABC, and not against the defendant.

At the pre-trial conference, the parties agreed on the issues for trial as:

“1.1. Whether or not the plaintiff has a cause of action against the defendant.

1.2. Whether or not the defendant is obliged to pay the amount claimed or any amount at all.”

When the matter initially came before me for trial, the parties were of the view that the facts were generally common cause. They then requested the deferment of the hearing to enable them, firstly, to agree on the facts, prepare and file a Statement of Agreed Facts as well as heads of argument.

In due course this was done, and the Statement of Agreed Facts signed and filed by the parties reads:

“1. The plaintiff is Trojan Nickel Mine Limited, a public company registered in accordance with the laws of Zimbabwe.

2. The defendant is the Reserve Bank of Zimbabwe. It is established in terms of the Reserve Bank of Zimbabwe Act [Cap 22:45] (“the Act”) with the power, amongst other things, to regulate the banking sector.

3. The plaintiff, at all material times, maintained a foreign currency account number ZWTROJ001CALUS0019 domiciled at Banc ABC, formerly the African Banking Corporation.

4. On 1 October 2007, the Governor of the defendant, Dr G. Gono, issued a Monetary Policy Statement in terms of section 46 of the Act. The Monetary Policy Statement provided, in pertinent part, as follows..,.:

'6.2. In order to achieve the twin objectives of boosting exporter viability and improving the economy's accountability for total export and other foreign currency receipts, as well as ensuring judicious allocation of the scarce foreign currency resources, it has become necessary that the Reserve Bank introduces a new frame-work where we pool our resources together without disadvantaging the generators of that foreign currency.

6.3. Within this spirit, of preserving and promoting the welfare of our generators of foreign currency, who are the geese that lay the golden eggs, it has become necessary that the Central Bank centralises the management of FCAs, along with the creation of an interest earning investment window that boosts exporter viability.

6.4. What this means is that, with immediate effect, all corporate FCA balances at Authorised Dealers are to be lodged at the Reserve Bank, such that each bank maintains mirror accounts for transactions tracing purposes.'

5. On 2 October 2007, the defendant's Division Chief, Exchange Control, one M.B. Mpofu, directed a minute to the Head, Exchange Control Department of all Authorised Dealers, which read(s) in pertinent part as follows:

'Dear Sir/Madam

DIRECTIVE ISSUED IN TERMS OF SECTION 35(1) OF THE EXCHANGE CONTROL REGULATIONS, STATUTORY INSTRUMENT 109 OF 1996

1. INTRODUCTION

1.1. Reference is made to the Mid-Year Monetary Policy Statement announced by the Governor on 1 October 2007. In order to operationalize the measures highlighted therein, Authorised Dealers are accordingly directed as follows…,.:

2….,.

3. CENTRALISED FCA MANAGEMENT

3.1. Authorised Dealers are advised, that, with immediate effect, all Corporate and Non-Governmental Organisations (NGOs) FCA balances, as at 1 October 2007, shall be lodged with the Reserve Bank.

3.2. Authorised Dealers shall transfer all their Corporate FCA (including EPZ Companies) and NGOs balances to the Reserve Bank by close of business on 2 October 2007, as directed by International Banking and Portfolio Management Division, and submit to Exchange Control, individual exporter balances on those transfers made.

3.3. Authorised Dealers are required to maintain mirror accounts for their exporting clients indicating individual entitlements for transaction tracking purposes.

3.4. Authorised Dealers shall submit to the Exchange Control Inspectorate monthly foreign currency account statements for their clients for which global balances should be consistent with holdings at the Reserve Bank's Internal Banking and Portfolio Management Division.

3.5. All special FCAs (transitory accounts) and FCAs for International Organisations, Embassies, and Individuals shall remain with Authorised Dealers.

3.6. In order to ensure that exporters preserve the real value of the foreign exchange deposits under the pooled framework, all such deposits shall earn an all inclusive (interest) rate of 12% per annum in foreign currency for USD, Pound, Euro, Pula and Rand.'

6. The Ban ABC was, and remains, an Authorised Dealer.

7. The plaintiff alleges, that, it had a foreign currency balance of USD1,007,541=30 as at 1 October 2007 in its FCA aforesaid.

8. Banc ABC, pursuant to the directive in para 4 above, remitted the sum of USD1,492,516=06 to the defendant.

9. The plaintiff alleges, that, it has been unable to access its funds from Banc ABC despite demand.

10. The plaintiff has sued the defendant for:

'Payment of an amount of USD1,007,541=30 which amount is due and payable to the plaintiff by the defendant: which amount represents the entire balance of the money which was held by the plaintiff in a foreign currency account in African Banking Corporation Limited: which amount was appropriated by the defendant some time in 2008: and which amount, despite demand, the defendant fails or refuses to pay.'

11. The defendant has pleaded to the summons as follows:

'The defendant pleads that there is no causal nexus between the plaintiff and the defendant, more particularly that:

(a) The plaintiff and defendant have no banking relationship and the defendant did not manage or keep a banking account of the plaintiff and owed the plaintiff no duties normally associated with a banker and its depositor.

(b) The plaintiff's claim should be against its banker and not the defendant. It is improper and there is no legal basis alleged which would entitle the plaintiff to bring a claim against the defendant.

WHEREFORE, the defendant prays for the dismissal of the plaintiff's claim with costs.'

12. The parties have joined issue and agreed on the following issues for disposition:

12.1 Whether or not the plaintiff has a cause of action against the defendant.

12.2. Whether or not the defendant is obliged to pay the amount claimed or any amount at all.

13. The parties respectfully pray that this honourable court may dispose of the agreed issues on the basis of the facts agreed herein and Heads of Argument to be filed by both parties.

DATED AT HARARE this 22nd day of May 2013.”

The Statement of Agreed Facts is duly signed by counsel for the parties.

Counsel for the plaintiff submitted, that, the plaintiff does have a cause of action against the defendant because it is the defendant which wrongfully procured a breach of the contract that exists between the plaintiff and Banc ABC. He maintained, that, an action exists in our law for the intentional and wrongful interference with contractual rights.

In addition, the plaintiff is entitled to recover from the defendant the procured money on the basis of unjust enrichment, it having been enriched at the expense of the plaintiff.

Counsel for the plaintiff strongly argued, that, the directives issued to Authorised Dealers, by the defendant, had the effect:

(i) Firstly, of inducing Banc ABC to commit a breach of its contract with the plaintiff; and

(ii) Secondly, the directives intentionally and wrongfully interfered with contractual rights.

Counsel for the defendant did not address himself to that argument. As far as he was concerned, there was no banker and client relationship between the parties, and, for that reason, the defendant does not owe the plaintiff any duty.

Counsel for the defendant insisted, that, it is the plaintiff's Bank which received the money from the plaintiff, and, for that reason, it is the one with the obligation to pay the money to the plaintiff.

Counsel for the defendant further argued, that, the plaintiff's pleadings do not allege a legal basis entitling it to bring a claim against the defendant especially as the summons does not specify that the suit is based on either contract or delict.

Relying on the judgment of BERE J in China Shougang International v Standard Chartered Bank Zimbabwe Limited HH310-11 where the learned judge stated, obiter dictum…, that there was no privity of contract between the Central Bank and a depositor at a Bank.

I do not think the decision in China Shougang International v Standard Chartered Bank Zimbabwe Limited HH310-11 needs to detain us at all because it is clearly distinguishable from the present case.

In that case, the depositor had sued its own Bank and the defendant (in casu) was not cited as a party to the proceedings. More importantly, apart from the fact that the claim was based on a banker and depositor relationship, and not on the procurement of the deposit by the present defendant, there was also no admission by the Reserve Bank of Zimbabwe (RBZ) that it had indeed appropriated the depositor's money.

I agree with counsel for the plaintiff, that, the question of wrongful procurement was not placed before the court in that matter. Therefore, the case is distinguishable.

In our law, it is generally accepted, and I did not hear counsel for the defendant argue to the contrary, that, an action exists for intentional inducement of a breach of contract.

In PQR BOBERG, The Law of Delict, Vol 1, Juta & Co. Ltd…, the point made that:

“It is well established that the intentional inducement of a breach of contract is an actionable wrong: see Atlas Organic Fertilisers (Pty) Ltd v Pikkewyn Ghwano (Pty) Ltd 1981 (2) SA 173 (T) at 202G, and the cases there-cited.”

In Dantex Investments Holdings (Pty) Ltd v Brenner & Ors NNO 1989 (1) SA 390 (AD)…, GROSSKOPF JA also made that point in stating:

“It is clear that an interference with contractual rights can, in certain circumstances, constitute a delict. What is less clear is what precisely the requirements for liability are.”

See also Roux v Hattingh 2012 (6) SA 428 and R.H. CHRISTIE, The Law of Contract, 3rd ed, Butterworths…,.

In casu, the defendant acted in terms of section 46 of the Reserve Bank Act [Chapter 22:15]. That section provides:

“In June and December of each year, the Governor shall submit to the Minister a policy statement containing –

(a) A description of the monetary policy to be followed by the Bank during the next succeeding six months, and a statement of reasons for those policies; and

(b) A statement of the principles that the Bank proposes to follow in the implementation of the monetary policy; and

(c) An evaluation of the monetary policy and its implementation for the last preceding six months.”

In order to implement the policy statement given in terms of section 46 of the Reserve Bank Act, to the effect that foreign currency balances were to be lodged with the defendant, a directive was also issued to Banks, in terms of section 35(1) of the Exchange Control Regulations, SI109 of 1996 instructing them to immediately lodge the foreign currency balances with the defendant.

Section 35(1) of the Exchange Control Regulations, SI109/96 is of peremptory application. It reads:

“Authorised dealers shall comply with such directions as may be given to them by an exchange control authority relating to -

(a) The exercise of any functions conferred on them by or under these regulations;

(b) The terms on which they are to exchange foreign currency for Zimbabwean currency;

(c) The offer of foreign currency in their possession for sale to the Reserve Bank.”

It was stated in China Shougang International v Standard Chartered Bank Zimbabwe Limited HH310-11, that, the directive given by the Governor of the defendant was invalid for want of a Ministerial approval.

I do not think it is necessary to discuss that issue in this case because it is accepted that the directive was given.

To that extent, the plaintiff's Bank was obliged to comply with the directive in terms of the law. Doing otherwise would have resulted in dire consequence to it, if not the loss of its Banking licence.

It is common cause, that, after appropriating the plaintiff's money, the defendant did not return that money and has not even begun to give any indication as when, if at all, it will repay the money.

It has contented itself with hedging behind the non-existence of a contractual relationship between it and the plaintiff. The proverbial hiding behind a finger.

Quite how and why the defendant could come to the conclusion that it can just acquire the money and refuse to repay it to the owner is one of the greatest unfathomable mysteries of this world.

There can be no doubt, that, the right to private property is one of the sacrosanct rights protected by law.

There is little doubt, that, the plaintiff should be protected against the arbitrary deprivation of its equity deposited at Banc ABC, which institution was powerless against the defendant's directive and is now unable to perform its contractual obligations, namely, paying the money to the plaintiff on demand.

To my mind, the defendant intentionally induced Banc ABC to breach its contract with the plaintiff.

I have already stated, that, an intentional inducement of a breach of contract is actionable in our law.

As a corollary to that is the submission made on behalf of the plaintiff, that, the directive which led to the appropriation of the plaintiff's foreign currency balance at Banc ABC constitutes a wrongful interference with contractual rights.

I agree.

While it is true, that, the defendant is the monetary authority charged with the management of the Banking sector and the formulation of Banking rules, I have not been directed to any authorities entitling the defendant to proscribe the release of deposits to depositors or indeed to interfere with Bankers obligations to pay balances to their clients on demand.

As a matter of policy, the security of Bank deposits should forever be protected by our courts.

Indeed, it would be an affront to the rights of depositors if ownership of their property, stored with Banks, and the culture of banking money instead of keeping it under a pillow, were to be rendered a serious economic hazard and a ruinous activity.

Our law, which protects ownership of property, is founded on a rock of wisdom. For that reason, the courts should be clear, consistent, and firm in enforcing principles protecting deposits.

Needless to say, that, the expropriation of export proceeds prior to dollarization, which have not been compensated, is one of the major factors inducing weak balance sheets of businesses resulting in poor economic performance.

I am persuaded, that, the plaintiff does have a cause of action against the defendant based on the twin concepts of the intentional inducement of a breach of contract and the wrongful interference with contractual rights: for wrongful it is if the monetary regulatory authority gives a directive for the appropriation of an individual's equity in a Bank and then failing to make good that equity.

Even if I am wrong in that conclusion, the defendant cannot escape liability on the basis of unjust enrichment.

It is now accepted, that, the general enrichment action is recognised in our law: see Industrial Equity v Walker 1996 (1) ZLR 269 (H) where BARTLETT J stated…,.:

“I am of the respectful view, that, the principal requisites for a general action on enrichment can be regarded as aptly summarised by Wouter de Vos in Verry King saanspreeklikheid in die Suid Africkaanse Reg (1958) as stated by Scholtens in the 1996 Annual Survey of South African Law, 150 at 152 as:

'(a) The defendant must be enriched;

(b) The enrichment must be at the expense of another (i.e. the plaintiff must be impoverished and there must be a causal connection between enrichment and impoverishment);

(c) The enrichment must be unjustified;

(d) The case should not come under the scope of one of the classical enrichment actions;

(e) There should be no positive rule of law which refuses the action to the impoverished person.

Obviously, these requirements can only be fulfilled if, in any given case, the action is based on a defined set of circumstances.'”

I am satisfied that all the requirements of unjust enrichment are met in the present case.

It is also not a case that would open floodgates, because, rarely do we have a situation where a depositor's foreign currency balance is appropriated the way it was in this case.

Counsel for the defendant submitted, that, the plaintiff did not plead any case based on delict, and that, for that reason, the claim should fail.

I am of the view, that, the manner in which the plaintiff pleaded its case, predicating it mainly on the fact that the amount claimed “was appropriated by the defendant” was wide enough to encompass the claim as it has been argued by counsel.

I however agree, that, it would be inappropriate, bearing in mind the banking relationship between the parties, the defendant being “a banker of banks” to direct that the money be paid directly to the plaintiff. The correct approach would be for the defendant to return the money to Banc ABC, the plaintiff's banker.

Accordingly it is ordered, that:

1. Judgment is hereby entered in favour of the plaintiff as against the defendant in the sum of USD1,007,541=30 together with interest a tempoe morae at the prescribed rate from the date of summons to date of payment.

2. The defendant is directed to deposit the said sum of USD1,007,541=30 into the plaintiff's Banc ABC account number ZWTROJ001CALUSD0019 or any other account held by the plaintiff at that Bank.

3. The defendant shall bear the costs of suit.

HHH374-19 : MUNYARADZI KEREKE vs FRANCIS MARAMWIDZE N.O.
Ruled By: HUNGWE J and WAMAMBO J

The appellant was convicted of rape, as defined in section 65 of the Criminal Law (Codification and Reform) Act [Chapter 9:23], by the Regional Magistrate, Harare, and sentenced to 14 years imprisonment of which four years were suspended for five years on the usual conditions, on 11 July 2016.

The appellant was aggrieved by both his conviction and the sentence. He now appeals against both the conviction and sentence.

Although the notice and grounds of appeal were filed timeously, this court was of the view, that, the grounds of appeal were so general and ambiguous, that, in the courts view, they did not comply with the clarity and specificity requirement in the rules of court: see Rule 22(1) of the Supreme Court (Magistrates Court) (Criminal Appeals) Rules, S.I.504/79.

Additionally, the heads of argument filed in support of the grounds of appeal did not address the grounds of appeal.

The appellant withdrew the appeal and made a fresh application for condonation for the late of filing of notice and grounds of appeal.

In that application, the appellant abandoned the earlier grounds of appeal and raised new grounds of appeal which were congruent with the already filed heads of argument.

The new grounds of appeal recite the following:

1. The court a quo seriously misdirected itself, such misdirection amounting to an error of law in convicting the appellant on the basis of a story whose actus reus is incapable of performance, or is, alternatively, implausible in the circumstances alleged and consequently not susceptible to proof beyond any reasonable doubt as is required by law, more in particular in that;

(a) The allegation that there was penetration of an eleven year old virgin, by adult appellant, whilst seated on a couch, and with the victim's panties brought down to knee level is most inconceivable;

(b) The penetration of an eleven year old virgin, by adult appellant, in a house full of people, without her screaming, is most improbable on the circumstance as to be unbelievable;

(c) The reaction of the complainant, to the act of sexual violence found to have been perpetrated against her, does not comport with reality and with a manner which can objectively be expected under such circumstances.

2. The court a quo seriously misdirected itself, such misdirection amounting to an error in law, in convicting the appellant notwithstanding the many material inconsistencies in the prosecution evidence, such inconsistences arising out of:

(i) Inconsistencies between the statement given by the complainant to the police;

(ii) Inconsistencies between the statement and the evidence given viva voce; and

(iii) Inconsistencies between the general evidence given and the scene report.

3. The court a quo misdirected itself in failing to consider the effect of the substantially similar failed charge of indecent assault on the assessment it had to make of the complainant, her testimony, the conditions under which she made the report, and her general credibility; all these factors considered.

4. The court a quo erred in law in concentrating and getting itself fixated on what it improperly found to have been appellant's suspicious conduct without considering whether there was, against the appellant, an objectively plausible case the existence of which would be the basis for the evaluation of his conduct.

5. The court a quo erred in disbelieving appellant's alibi in the absence of any evidence from the State undermining such defence and so erred in failing to consider and evaluate the quality of the evidence given by the appellant in support of the alibi.

6. Having found the sentence contended for by the State to have been draconian, the court a quo erred in effectively imposing a manifestly excessive sentence which was just as draconian as had been urged for by the prosecution.

On the basis of the above grounds of appeal, the appellant prayed for the setting aside of the conviction and the quashing of the sentence imposed. Alternatively, he prayed, that, should the conviction be upheld, then, the sentence be reduced to 5 years with 2 years suspended on the usual conditions.

The appellant was convicted after a protracted trial in which evidence was led from several witnesses.

As background to the conviction, it is appropriate that the evidence led at trial be restated and analyzed in light of the findings of fact and conclusions of law arrived at by the trial court.

It is also important to state the factual background behind the institution of the private prosecution by the complainant's guardian.

When the allegations of rape were made at the police station, against the appellant, the officers who were handling the matter would be transferred, the docket would be referred to such other offices as would give the impression that the appellant could not be prosecuted.

The long and short of the events surrounding the matter is that, ultimately, the office of the Prosecutor General declined prosecution in the matter. It also did not issue the certificate indicating this, as it was obliged to do in terms of the law: see section 16(1) of the Criminal Procedure and Evidence Act [Chapter 9;07].

When the complainant's guardian applied for a certificate to confirm this position, that certificate was not issued as a matter of course.

The complainant's guardian had to seek the intervention of the courts to get the office of the Prosecutor-General to issue the appropriate certificate authorizing a private prosecution of the appellant.

This explains why, even before this Court, the State has folded its arms, when, in normal circumstances, it ought to have vigorously demonstrated, through the office of the Prosecutor General, commitment to the duty to protect, uphold, respect, and defend the rights of a child to equal protection of the law.

Zimbabwe has ratified most, if not all, regional and international treaties and conventions on human rights. These international conventions, which bind the State, spell out obligations of State parties: see the. International Covenant On Civil and Political Rights, 1966; International Covenant on Economic and Social Rights, 1966; the African Charter on Human and Peoples Rights, 1981; Convention on the Rights of the Child, 1990; the African Children's Charter, 1990.

The Constitution of Zimbabwe gives effect to these and other rights either in its provisions or through the legislative framework made thereunder: see sections 56, 68, and 69 of the Constitution; see, generally, the Criminal Procedure and Evidence Act [Chapter 9:07].

One of the important rights enshrined in the Constitution is that of equality before the law.

The complainant had to resort to private prosecution to enforce her rights leading to the present proceedings - without State assistance.

Appealed
SC119-21 : MINISTER OF JUSTICE, LEGAL AND PARLIAMENTARY AFFAIRS and OTHERS vs CONCILIA CHINANZVAVANA and THE NATIONAL PEACE AND RECONCILIATION COMMISSION
Ruled By: GWAUNZA DCJ, GUVAVA JA and BHUNU JA

Section 324 of the Constitution provides as follows:“All constitutional obligations must be performed diligently and without delay.”

SC06-14 : ZIMASCO (PRIVATE) LIMITED vs MAYNARD MARIKANO
Ruled By: GARWE JA, GOWORA JA and OMERJEE AJA

This is an appeal against the judgment of the Labour Court dismissing an application by the appellant to file supplementary heads of argument and setting aside the decision of the appellant to terminate the respondent's contract of employment with itself.

The facts of this case are largely common cause and are these:

The respondent was employed by the appellant as a Medical Officer in 1995. He rose through the ranks to become the Health Services Manager.

In terms of his letter of appointment, the appellant's policies and procedures were incorporated into his employment contract.

On a date that is unclear on the papers, but between February and March 2009, the respondent was involved in a serious road accident whilst about the appellant's business.

The respondent suffered serious injuries to his spine as a result of which he was unable to attend to his official duties from 11 March 2009.

The respondent was allowed to go on sick leave on full pay for a period of ninety (90) days.

At the expiration of that period, the respondent was still unable to resume his duties and took more sick leave.

On 7 September 2009, the appellant's Services Director, a Mr Zvaipa, wrote to the respondent directing him to furnish a copy of his doctor's opinion, failure of which his remuneration and other benefits were to be suspended.

Following further correspondence exchanged between the two, the respondent made it clear, that, he remained in the employ of the appellant until such time as his contract was lawfully terminated.

On 18 September 2009, the appellant then wrote to the respondent advising that since he had exceeded the maximum sick leave permissible in a single year, his contract of employment was being terminated forthwith in terms of section 14(4) of the Labour Act [Chapter 28:01] (“the Act”).

Following this development, the respondent then filed an application for review with the Labour Court on 9 October 2009.

In the application, the respondent alleged, that, the termination was unlawful as the appellant had not followed the procedural steps required at law or in terms of his contract of employment in terminating his employment on medical grounds.

It appears, that, on the same date, the respondent filed what purported to be a notice of appeal against the decision to dismiss him.

It is apparent, however, that, in both cases, the respondent sought an order setting aside the decision to terminate his contract of employment.

The Labour Court treated the matter as an application for review.

After hearing submissions from both parties, the court then reserved its judgment on 15 March 2010.

On 15 November 2010, eight (8) months later, the appellant then filed an application for leave to file supplementary heads of argument. The supplementary heads of argument sought to raise the issue whether or not the Labour Court had jurisdiction to entertain an application for review in the first instance.

The application was opposed by way of a letter to the Registrar. No formal opposing papers were filed.

The Labour Court dealt with the request as part of its judgment.

The court was of the view, that, there should be finality in litigation and that to allow a party to file heads of argument after judgment had been reserved would defeat this principle.

The Court therefore dismissed the application to file supplementary heads of argument.

The court further reached the conclusion, that, an employer does not have the authority to summarily terminate an employee's contract of employment in terms of section 14(4) of the Labour Act [Chapter 28:01], and that, regard being had to the purpose of the Act, namely, the promotion of fair labour standards, the employer was under obligation to conform to the requirements of substantive and procedural fairness and that failure to give notice to an employee of an intention to terminate a contract of employment in terms of section 14(4) of the Act is fatally irregular.

The court further found, that, since the respondent's contract of employment embodied other terms applicable in the event of sickness, the appellant should have fully related to those terms and given the respondent the option either of early retirement or being medicallly boarded.

The court concluded, that, as this had not been done, there had been procedural irregularities, and, consequently, set aside the decision to terminate the contract of employment of the respondent.

It is against that order that the appellant has appealed to this Court.

Both parties to this appeal are agreed that the appeal raises three (3) issues for determination. These are:

(a) Whether or not the Labour Court had jurisdiction to entertain the respondent's application for review at first instance.

(b) Whether the Labour Court erred, as a matter of law, in declining to consider the issue of jurisdiction raised in the application to allow the filing of supplementary heads of argument.

(c) Whether the Labour Court was correct, in holding, as it did, that the right to termination in terms of section 14(4) of the Labour Act was subject to procedure and that any irregularity in those procedures entitled the Labour Court to set aside the termination of the contract of employment.

In particular, whether the appellant was obliged to give the respondent the right to be heard before his contract was terminated, and, secondly, whether the appellant was obliged, in terms of the contract of employment between the respondent and itself, to comply with medical boarding procedures or the availing of an option of early retirement before the contract of employment could be terminated....,.

WHETHER THE RIGHT TO TERMINATE IN TERMS OF SECTION 14(4) OF THE LABOUR ACT WAS SUBJECT TO PROCEDURES

Two issues arise in this regard. These are:

(i) Firstly, whether a termination in terms of section 14(4) of the Labour Act is subject to substantive and procedural fairness; and

(ii) Secondly, whether, on the facts of this case, the appellant complied with the provisions of section 14(1) of the Labour Act, and, if so, whether its invocation of the provisions of section 14(4) of the Labour Act was, in the circumstances, proper.

Section 14 of the Labour Act provides:

“14 Sick Leave

(1) Unless more favourable conditions have been provided for in any employment contract or in any enactment, sick leave shall be granted in terms of this section to an employee who is prevented from attending his duties because he is ill or injured or undergoes medical treatment which was not occasioned by his failure to take reasonable precautions.

(2) During any one-year period of service of an employee, an employer, shall, at the request of the employee, supported by a certificate signed by a registered medical practitioner, grant up to ninety days sick leave on full pay.

(3) If, during any one year period of service of an employee, the employee has used up the maximum period of sick leave on full pay, an employer, shall, at the request of the employee, supported by a certificate signed by a registered medical practitioner, grant a further period of up to ninety days sick leave on half pay, where, in the opinion of the registered medical practitioner signing the certificate, it is probable that the employee will be able to resume duty after such further period of sick leave.

(4) If, during any one-year period of service, the period or aggregate periods of sick leave exceed –

(a) Ninety days sick leave on full pay; or

(b) Subject to subsection (3), one hundred and eighty days sick leave on full and half pay: the employer may terminate the employment of the employee concerned.

(5) An employee who so wishes may be granted accrued vacation leave instead of sick leave on half pay or without pay.”

It is the appellant's contention, that, section 14(4) of the Labour Act gives the employer an absolute right to elect to terminate the employment of the employee if -

(a) The employee has taken more than ninety (90) days sick leave on full pay in any one year; or

(b) The employee has taken more than one hundred and eighty (180) days sick leave on full pay and half pay in any one year period.

The appellant further argues, that, the right to terminate is not subject to compliance with any particular procedures.

The respondent, on the other hand, argues, that, section 14(4) of the Labour Act does not give an employer an unfettered right to unilaterally and summarily dismiss an employee and that fair labour standards and the audi alteram partem rule still apply in this situation.

In determining this issue, the court a quo relied on the case of Mutukwa v National Diary Co-operative Ltd 1996 (1) ZLR (1) ZLR 348 which held, inter alia, that an employer was entitled to terminate the contract of employment on notice to the employee.

The court was of the view that this principle was applicable to this case.

The reliance on the above case was clearly erroneous.

I say so because section 14(b) of the then Labour Relations Act [Cap 28:01] provided, that, unless more favourable conditions were provided in the contract, where an employee was unable, for a period exceeding one month, to fulfil the conditions of his employment, the employer was entitled to terminate the contract on due notice, in which event the employee was to be entitled to all benefits due to him up to the date of such termination.

The requirement to give notice was in terms of section 14(b) of the then Labour Relations Act [Cap 28:01] and was mandatory.

It is common cause, that, section 14(b) of the then Labour Relations Act [Cap 28:01] was repealed by Act 17/2002 which substituted the section currently in existence and which is the subject of this appeal.

The current provision makes no provision for the giving of notice.

Considering the circumstances as a whole, I would agree with counsel for the appellant, that, there was a clear legislative shift and change of policy regarding the termination of employment on the grounds of excessive sick leave.

Section 14(4) of the Labour Act has no express conditions attached to it except the requirement as to the amount of sick leave which an employee can take in any one year before the right to terminate can be exercised by an employer.

However, since the decision to terminate an employment contract has far reaching consequences, one should assume, that, before such a decision is taken, the employer would be obliged, at the very least, to advise the employee of the fact that he has taken the sick leave contemplated in section 14(4) of the Labour Act, and that, for that reason, it is intended to terminate his contract of employment in terms of that section on a date specified in such notice unless the employee returns to work before the expiration of the specified period.

In my view, it would not be proper for an employer to invoke the provisions of section 14(4) of the Labour Act, and, without notice to the employee, proceed to terminate his contract of employment.

In short, the audi alteram principle would still need to be respected, and, failure to do so would render any such termination null and void.

In the present case, however, it is apparent, that, there was correspondence between the appellant and the respondent in which the appellant made it clear that it would invoke the provisions of section 14(4) of the Labour Act.

The respondent challenged the appellant's right to terminate his employment in terms of section 14(4) of the Labour Act. The appellant then terminated the employment with effect from 18 September 2009.

I turn to deal with section 14(1) of the Labour Act.

In an ordinary employment contract, the termination of employment effected on 18 September 2009 would have been the end of the matter.

SC141-21 : WISE GARIRA and SHEPHARD MASHINGAIDZE and BAYAI BAYAI vs NATIONAL ENGINEERING WORKERS UNION and FIRST CAPITAL BANK
Ruled By: GUVAVA JA, BHUNU JA and KUDYA AJA

This is an appeal against the whole judgment of the High Court (the court a quo) which ordered the removal of the three appellants from being signatories to the first respondent's Bank account with the second respondent.The appeal is opposed by the first respondent....,.BRIEF BACKGROUND OF THE CASEThe first respondent ...

This is an appeal against the whole judgment of the High Court (the court a quo) which ordered the removal of the three appellants from being signatories to the first respondent's Bank account with the second respondent.

The appeal is opposed by the first respondent....,.

BRIEF BACKGROUND OF THE CASE

The first respondent is a duly registered trade union representing the interests of employees in the Engineering, Iron and Steel sector (hereinafter referred to as “the Union”). The Union opened and maintains a Bank Account Number 6327897 with the second respondent Bank.

On the other hand, the first and second appellants were employed by the Union as its President and Secretary General, respectively, whereas the third appellant was its Trustee.

At the inception of the Bank account, the three appellants were appointed by Union resolution, dated 15 February 2019, as signatories to the said Bank account in their respective capacities as Union officials. The union then sought to remove the appellants from the panel of signatories to its Bank account on the basis that they had ceased to be union officials.

In its founding affidavit, deposed to by Ben Mambara, the Union averred, that, the first and second appellants were dismissed from employment following disciplinary proceedings on 22 April 2019 and 14 June 2019, respectively. The third appellant's trusteeship had expired through the effluxion of time.

The Union provided documentary evidence of the appellants dismissal from office.

The appellants however resisted their removals from being Bank account signatories on the basis that they were still Union officials.

They also challenged the authenticity of the Union resolution that authorised their removal as signatories to the Union bank account.

They challenged the legitimacy of Ben Mambara as the incumbent President of the Union and deponent to its founding affidavit.

In that vein, they refused to relinquish their respective mandates as signatories to the Union's bank accounts hence the application for their removal as Bank signatories in the court a quo.

The case has been the subject of various conflicting judgments in the court a quo which are now pending in this court on appeal.

On 23 January 2020, MUSHORE J issued a lengthy order in favour of the appellants under case number HC8111/19. The order basically declared that the three appellants were the legitimate office holders entitled to run the affairs of the first respondent without let or hindrance. On the other hand, the order declared Ben Mambara to be an illegitimate President of the first respondent.

In short, the judgment restored the status quo ante prior to the appellants dismissal from office.

The judgment is now a subject of appeal and it triggered a series of other appeals under appeal case numbers SC27/2020, SC32/2020, and SC34/2020.

Following the restoration of the status quo ante by MUSHORE J's order the respondents were aggrieved by the manner in which the appellants were handling the first respondent's funds.

Resultantly, the first respondent, represented by Ben Mambara, approached the court a quo under case number HC6844/19 seeking their removal from office as signatories of its Bank account.

The first respondent was successful in this respect.

The current appeal challenges the judgment on the basis that MUSHORE J's order had barred Ben Mambara and six others from acting as the Union's officers. The appellants claim to have been declared the legitimate signatories to the Bank account by the judgment which is still extant.

Notwithstanding the appeal, the first respondent sought leave of the court a quo to execute the order removing the appellants from being signatories to its Bank account under case number HC444/20.

CHIKOWERO J dismissed the application.

Another application, for the re-activation of the Union's bank account was dismissed by MUSITU J on 15 September 2020.

DETERMINATION OF THE COURT A QUO

The court a quo found, that, Ben Mambara had the requisite authority to represent the Union.

In coming to that conclusion, the learned judge a quo reasoned that the Union, being a legal persona, could only be represented by a natural person duly authorised thereto by a valid Union resolution.

Consequently, upon the removal of the first appellant from office as Union President, the Union, by resolution, dated 15 February 2019, replaced the first appellant with Ben Mambara. The resolution also conferred him with authority to represent the respondent in these proceedings.

The resolution reads in part:

“IT WAS RESOLVED:

2. That the President, Ben Mambara, shall sign documents and represent the Union and at NEC level.

SIGNED AT BULAWAYO this 15th February 2019.

Signed
……………………………………
(SECRETARY).”

Having found that Ben Mambara was properly appointed as the Union President and Union representative, the learned judge a quo proceeded to hold, that, the appellants were no longer Union officials. That being the case, they could no longer continue to be signatories to the Union's bank account.

On the basis of such finding, he proceeded to issue the following order:

“IT IS ORDERED THAT:

1. The first respondent be and is hereby ordered to delete or remove Shepard Mashingaidze, Wise Garira, and Bayayi Bayayi from being signatories of applicant's Account No.6327897 held with the 1st respondent.

2. The 2nd to 4th Respondents jointly and severally one paying the others to be absolved, pay costs at the legal practitioner and client scale.”

Counsel for the first respondent has not, however, sought to sustain and enforce the above order.

She has, in fact, implored the court to exercise its review jurisdiction under section 25 of the Supreme Court Act [Chapter 7:13] on account of perceived irregularity.

Wherefore she prayed for an order in the following terms:

“Having utilised the powers granted to it under section 25 of the Supreme Court Act [7:13], the following is ordered:

(a) Appeals under S-27-2020, S–32–2020, S–34-2020 and S222-20 be and are hereby set consolidated.

(b) The judgment of the High Court under HC8111/2019 granted by MUSHORE J on 23rd January 2020 be and is hereby set aside.

(c) The judgment of the High Court under HC6844/20 by TAGU J on 20th May 2020 be and is hereby set aside.

(d) The judgment of the High Court under HC444/20 granted by CHIKOWERO J on 8th July 2020 be and is hereby set aside.

(e) The judgment of the High Court under HC594/20 by MUSITHU J on 15th September 200 be and is hereby set aside.

(f) HC8111/19 is remitted back to the High Court for a hearing de novo before a different judge.

(g) Pending the determination of HC8111/19, 2nd Plaintiff, third plaintiff, 3rd-9th Defendants Plaintiff shall not take any steps that will interfere with the operations of the 1st Defendant.…,.

2. It is thus prayed.”

It is plain that the above relief sought is premised on the ill-conceived assumption that the court would grant the request for consolidation.

Paragraph 'g' of the draft order, however, seems to have some merits because it seeks to protect the Bank account from abuse by persons who are, for the time being, no longer its officials pending the final determination of the parties competing rights.

The Court, having dismissed the prayer for consolidation, paragraphs (a) to (f) of the first respondent's prayer cannot stand as they are premised on the envisaged consolidation which never materialised.

For that reason, the Court cannot interfere with appeals which are not before it.

I will therefore focus on the instant appeal before this Court.

No application for review can be brought in terms of section 25 of the Supreme Court Act. The court acts mero motu. Thus, counsel for the first respondent was merely raising the court's attention to exercise its discretion in this regard....,.

Paragraph (g) of the first respondent's prayer seeks to downgrade the order granted by the court a quo in HC8111/20 to a temporary interdict pending the determination of the main dispute on appeal.

There is need to interrogate that proposal on the merits.

It is common cause that the first and second appellants were employed by the Union. They were dismissed from employment following disciplinary proceedings. They have since appealed against their dismissal.

That much is not in dispute.

In terms of section 92E(2) of the Labour Act [Chapter 28:01] an appeal shall not suspend the decision appealed against.

In interpreting the section, in CFI Retail (Pvt) Ltd v Manyika SC08-16…, MALABA DCJ…, observed that:

“Section 92E(2) provides, that, the noting of an appeal to the Labour Court against a determination or decision does not have the effect of suspending the operation of the determination or decision appealed against.

The purpose of the section is to provide for the effect of the noting of an appeal in terms of the Act on the enforcement of the determination or decision.

The provision is the reversal of the common law principle that the noting of an appeal against a judgment or decision of a tribunal or lower court suspends the execution of the judgment or decision pending the determination of an appeal.”

The same applies to appeals against the judgments or decisions of the Labour Court.

This is because there is no statutory provision for the suspension of its judgments or decisions pending appeal. The common law rule, that an appeal suspends the decision appealed against, only applies to superior courts of inherent jurisdiction.

In Founders Building Society v Mazula 2000 (1) ZLR 529 the court held that:

“The rule that an appeal suspends the operation of the decision appealed against applies only to superior courts. It does not apply to other tribunals unless the relevant statute so provides.”

In the absence of statutory authorisation, the common law rule that an appeal suspends the judgment or decision appealed against does not apply to any appeals in terms of the Labour Act.

Had the appellants wanted to remain in office, despite their dismissal from employment, they should have successfully applied for an interim order staying execution pending appeal in terms of section 92E(3) of the Labour Act: see Greenland v Zimbabwe Community Health Intervention Research Project (ZICHIRE) HH93-13.

This they did not do.

What this means is that whether or not they have appealed against their dismissals in terms of the Labour Act, it does not matter whether or not the dismissals were correct at law. It is therefore an exercise in futility for both appellants, at this stage, to impugn or cast aspersions on the decision of the inferior tribunal that dismissed them from employment.

They stand dismissed from employment until their respective appeals have been reversed on appeal.

As regards the third appellant, it is common cause that he was appointed as Trustee by Union resolution and was removed from office by Union resolution on account of the expiration of his term of office.

Following his removal from office, he is de facto out of office.

The net result is that all the three appellants are de facto out of office as Union officials.

Although they have appealed against their removal from office, in the interim, the balance of convenience favours the respondents.

It is highly undesirable, and a recipe for disaster and irreparable harm, that a person dismissed from office, whether rightly or wrongly, continues to be a signatory to his/her principal's Bank account pending appeal.

Having come to the unassailable conclusion, that, the appellants are currently no longer officials of the first respondent, the court a quo cannot be faulted for holding, that, the appellants are unsuited to be signatories to the first respondent's Bank account as things stand.

The court a quo, however, fell into error in making a final order before the parties competing rights have been conclusively determined on appeal.

The mere fact that there were numerous conflicting decisions on the same matter emanating from the same court on various aspects of the matter meant that there was uncertainty on the appellants prospects of success on appeal.

Despite that knowledge, they chose not to obey judicial and administrative processes that removed them from office and ultimately from being signatories to the first respondent's Bank account.

It is always wrong for a person to insist on being a signatory to another's Bank account without that person's consent. Even assuming for one moment that the appellants had been wrongfully removed from office, they had no right to fasten onto being signatories to the Union's bank account without its consent.

HH79-12 : MARIANE SABETA vs COMMISSIONER GENERAL ZIMBABWE REVENUE AUTHORITY
Ruled By: MATHONSI J

This is an application for an order compelling the respondent to assess capital gains tax payable in respect of the sale of Stand 965 Mabelreign Township, Harare and to receive such tax from the Deputy Sheriff for Harare on the pain of costs of the application.

The said property is currently registered in the name of a company known as Ellseck Investments (Private) Ltd.

The genesis of the matter is that the applicant concluded a sale agreement with Ellseck Investments (Pvt) Ltd for the purchase of Stand 965 Mabelreign Township for US$48,000 on 14 January 2010. She says she paid the full purchase price to the seller through mortgage finance from ZB Building Society.

Conveyancers, Danziger & Partners, were instructed to attend to the transfer of the property into the applicant's name.

The applicant states, that, before purchasing the property aforesaid, she had diligently conducted a Deeds Office search and satisfied herself that indeed the property was registered in the name of the seller and was not encumbered in any way.

It turns out that the seller did not co-operate in the process of transfer of the property to the applicant resulting in the applicant approaching this court, in case No. HC6737/10, for an order compelling the seller to perform its obligations in terms of the agreement of the parties and the law.

On 8 December 2010, this court, per MAVANGIRA J, issued an order against Ellseck Investments (Pvt) Ltd in favour of the applicant which reads as follows:

“IT IS HEREBY ORDERED THAT:

1. The Respondent shall, within ten (10) days of service of this court order upon it, provide Messrs Danziger & Partners Legal Practitioners with all the information and documents necessary for the registration of transfer of Stand 965 Mabelreign Township, Harare into the name of the applicant.

2. The Respondent shall, also within ten (10) days of service of this court order upon it, appoint a representative and execute all the necessary legal documents authorizing such representative to do everything necessary for the purpose of effecting transfer of Stand 965 Mabelreign Township, Harare into the name of the applicant including complying with all the administrative requirements of the registration of the transfer.

3. In the event of the Respondent failing to comply with paragraphs 1 and 2 above, the Deputy Sheriff for Harare shall be authorized to carry out all the acts required of the respondent to enable transfer of Stand 965 Mabelreign Township, Harare to be registered into the name of the applicant.

4. The Respondent shall bear the costs of this application on the legal practitioner and client scale.”

One of the acts required to enable transfer of the property to the applicant is payment of capital gains tax, assessed by the respondent in this case in terms of the Capital Gains Tax Act [Chapter 23:01].

It would appear that Ellseck Investments (Pvt) Ltd did not comply with the court order issued by MAVANGIRA J. forcing the applicant to fall back on the alternative term of the order, that of the Deputy Sheriff performing the acts necessary to give transfer to the applicant.

When the Deputy Sheriff approached the respondent's office for assessment and payment of Capital Gains Tax, he did not get any joy. The respondent refused to perform his statutory duties according to the Deputy Sheriff's return of 20 April 2011;

“Attempted to obtain assessment of capital gains tax in the presents (sic) of instructing attorney; Mrs Dzangare, advised that they could not comply with the requirements since there were outstanding payments.”

In a letter written to the conveyancer, on 21 March 2011, on behalf of the respondent, his position on the matter was set out thus:

“We wish to draw your attention to the fact that the initial transfer of the above mentioned Stand, from Clyde Chitsinde to Ellseck Investments Private Limited, was done fraudulently as no capital gains tax was paid as is required by the law.

The Zimbabwe Revenue Authority is therefore not in a position to accept payment of capital gains tax from Ellseck Investments Private Limited or to issue a capital gains clearance certificate in respect of the transfer from Chivhu Property Limited to your client as the initial transfer was tainted with illegability.

Thus, the original seller of the property, that is, Clyde Chitsinde, should first come and pay capital gains tax in respect of the sale of the property to Ellseck Investments Private Limited before capital gains tax in respect of the sale in question.”

It was not explained why the sins of the previous seller should be visited upon the doorsteps of the current seller, or, indeed, the applicant, who, for all intents and purposes, is the only interested party to the whole exercise.

Neither was it explained what prejudice would be suffered by the collector of taxes if capital gains tax was assessed and paid by or on behalf of Ellseck (Pvt) Ltd, which tax is now due, the property having been sold to the applicant.

In his opposing affidavit, the respondent also made reference to the fact, that, his investigations have revealed that the applicant purchased the same property from Clyde Chitsinde and he wondered why she had to buy the same property again from Ellseck (Pvt) Ltd.

In support of that claim, he attached handwritten office notes of interviews whose author is not disclosed.

He did not explain why an affidavit could not be obtained from the author to buttress his case, especially as those notes have no evidentiary value whatsoever.

I therefore reject those notes.

Counsel for both parties are agreed, that, the only issue to be determined is whether the respondent is empowered, by the legislation that he administers, to refuse to assess and receive capital gains tax on the basis that it has come to his attention that the previous owner of the property sold did not pay capital gains tax when he sold the property himself.

Counsel for the applicant argued, that, neither the Revenue Authority Act [Chapter 23:11] or the Capital Gains Tax Act [Chapter 23:04] empower the respondent to refuse to assess and collect capital gains tax.

He further submitted, that, the respondent has both criminal and civil remedies to deal with tax defaulters without resorting to the unorthodox actions he has employed in this matter.

He is aware of the particulars and whereabouts of the defaulter, Clyde Chitsinde, and should pursue those remedies against him.

On the other hand, counsel for the respondent strongly argued, that, the respondent is not obliged to issue a tax clearance certificate to the applicant because she is not a person entitled to it in terms of section 34(c) of the Revenue Authority Act and is not covered by section 6 of the Capital Gains Tax Act, which is the charging section.

He took the view, that, only the seller, Ellseck (Pvt) Ltd was entitled to be issued with the clearance certificate. In terms of the court order referred to above, it is the Deputy Sheriff who is entitled to the clearance certificate.

When his attention was drawn to the Deputy Sheriff's return of service, to the effect that the respondent still refused to issue the clearance certificate to him, counsel for the respondent could not explain that.

In my view, there is a court order clothing the Deputy Sheriff with authority to enter the shoes of Ellseck Investments and pay Capital Gains Tax on its behalf in order to facilitate transfer of the property to the applicant.

That court order is still binding and must be complied with.

The respondent has refused to let the Deputy Sheriff satisfy the terms of that order. For him to then argue, that, the applicant is not entitled to a clearance certificate is a red herring.

The Zimbabwe Revenue Authority, which the respondent heads, is established in terms of section 3 of the Revenue Authority Act [Chapter 23:11] and its functions and authority are set out in section 4 as read with the 2nd Schedule thereof.

Its main function is to act as an agent of the State in assessing, collecting, and enforcing the payment of all revenues.

In respect of capital gains tax, section 6, as read with section 22B of the Capital Gains Tax [Chapter 23:01] provides for the charging, levying, and collection of it against any person receiving a capital gain.

As a creature of statute, the Zimbabwe Revenue Authority (ZIMRA) is required to act in terms of the enabling statute.

The relevant statutes enjoin it to assess and collect the tax that is due. On the face of it, it cannot set conditions for the performance of its statutory obligations.

Regarding proof of title to immovable property, section 14(a) of the Deeds Registries Act [Chapter 20:05] provides;

“Subject to this act, or any other law, the ownership of land may be conveyed from one person to another only by means of a deed of transfer executed or attested by the registrar.”

Section 8(1) of the Deeds Registries Act [Chapter 20:05] provides:

“Save as is otherwise provided in this Act, or in any other enactment, no registered deed of grant, deed of transfer, certificate of title or other deed confirming or conveying title to land, or any real right in land other than a mortgage bond, and no cession of any registered bond not made as security shall be cancelled by a registrar except upon an order of court.”

It is common cause, that, Ellseck Investments holds title to Stand 965 Mabelreign Township which is registered at the Deeds Office.

The Registrar is the custodian and keeper of such titles.

It must therefore be accepted, that, the title deed held by Ellseck Investments is prima facie proof of ownership and an announcement to the whole world to deal with the title holder in accordance with the Deed of Transfer.

The Registrar of Deeds had not questioned the validity of that Deed, which, in any event, cannot be cancelled without a court order in terms of section 8(1) of the Deeds Registries Act.

What we have here is a case in which the applicant has relied on the records at the Deeds Office to purchase the property. She has gone ahead to obtain an order authorizing the Deputy Sheriff to pay capital gains tax.

The respondent has refused to assess the tax thereby frustrating the execution of a court order.

His reasons for doing so are that the applicant may have colluded with a previous owner to avoid tax.

I have already said that the respondents claim is not only unsubstantiated but premised on the inadmissible evidence, the notes of an unnamed officer, and have rejected that claim.

Therefore, all that remains is evidence of a bona fide purchaser who is entitled to take transfer upon assessment and payment of tax.

I do not agree with counsel for the respondent, that, the respondent is entitled to refuse to assess and receive tax in the circumstances of this matter.

I agree with counsel for the applicant, that, if the respondent has proof that a previous owner avoided paying capital gains tax, he has the latitude, that, in terms of the Capital Gains Tax Act, to pursue the defaulter and recover that tax as he has both Criminal and Civil remedies in that regard.

The respondent should, in the meantime, collect capital gains tax from the current seller.

The issues arising out of this dispute are such that it would not have been obvious that the respondent could not contest the application. I am of the view, that, he was entitled to bring his argument before the court for adjudication and cannot be said to have acted unreasonably. For that reason, this is a case in which each party should bear its own costs.

In the result, I make the following order; that:

1. The respondent shall, within ten days of service of this order upon him, assess the capital gains tax payable in respect of the sale of Stand 965 Mabelreign Township, Harare by Ellseck Investments (Pvt) Ltd to the applicant.

2. The respondent should receive payment of the capital gains tax payable by Ellseck Investment (Pvt) Ltd from the Deputy Sheriff for Harare and issue a Capital Gains Tax Withholding Tax Certificate to the Deputy Sheriff upon receipt of the payment.

3. Each party shall bear its own costs.

HB46-15 : ZENZO NTULIKI vs TIMOTHY SEAN WHITE and OFFICER COMMANDING MATEBELELAND SOUTH PROVINCE and THE SHERIFF OF ZIMBABWE N.O.
Ruled By: MOYO J

In my view, administrative decisions should be taken within the ambit of the law.

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

This is an urgent chamber application in terms of which the applicant seeks the following relief as set out in the provisional order:“TERMS OF FINAL ORDER SOUGHTThat you show cause to this Honourable Court why a final order should not be made in the following terms:1. That, it be and ...

This is an urgent chamber application in terms of which the applicant seeks the following relief as set out in the provisional order:

“TERMS OF FINAL ORDER SOUGHT

That you show cause to this Honourable Court why a final order should not be made in the following terms:

1. That, it be and is hereby declared, that, the letter of Mr A Tsimba, in his capacity as Acting Provincial Resettlement Officer, Mashonaland East Province drawn on the 10 May 2017 for the Ministry of Lands and Resettlement providing an eviction/vacate date and cessation of possession, occupation, use and all farming activities on Plots 3 and 5 of Ivordale Farm by 30 June 2017 is null and void and of no force or effect on account that, in its effect and implementation, it violates sections 68 and 69 of the Constitution of Zimbabwe and section 3 of the Administrative Justice Act [Chapter 10:28].

2. That, it be and is hereby declared that applicant, his agents, representatives, invitees and employees are entitled to the continued possession, occupation and use of the whole of subdivision 2 of Ivordale in the Goromonzi District of Mashonaland East Province measuring approximately 449.792ha (“the property”) until such time as a final determination has been rendered with regard to applicant's review proceedings and relief in HC12727/16.

3. That respondents, jointly and severally, the one paying the other to be absolved, pay the costs of this suit.

INTERIM RELIEF

Pending the determination of this matter, applicant is granted the following relief:

(a) That first and second respondents and all other persons acting through them be and are hereby interdicted from interfering with applicant's farming operations, possession, and control of movable and immovable property including livestock on Subdivision 2 of Ivordale in the Goromonzi District of Mashonaland East Province measuring approximately 449.792ha, as reflected in applicant's offer letter dated 16 July 2014, incorporating as it does newly depicted Plots '3' and '5' as set out in a subdivision plan drawn by officers in the 1st respondent Ministry and fresh offer letters in favour of 2nd respondent and an unknown person.

(b) That, it be and is hereby declared that the interim relief granted by his Lorship, Mr Justice Chitapi, in favour of the applicant, on 11 January 2017, in HC12511/16, shall continue to apply until such time as a final determination is made by the High Court in regard to the validity of the withdrawal of applicant's offer letter and downsizing of applicant's property.”

The application was opposed and was heard before me on 5 June 2017....,.

On the merits, counsel for the applicant submitted, that, the applicant had satisfied the requirements of an interim interdict and that in regard to the fear of harm actual or imminent she emphasised the significance of the events of 29 May 2017, in particular, the opinion as allegedly expressed i.e. that the letter contained a notice to cease farming operations and activities on subdivisions for Plot 345.

The applicant further argued, that, unless the interdict was granted, the applicant risked suffering irreparable loss of the winter wheat crop, and, if ejected, the pending review application, if eventually successful, would become of academic value only if not brutum fulmen.

She argued further that the applicant did not have an alternative satisfactory remedy to the interim interdict.

She therefore submitted, that, the respondents had to be stopped in their tracks by the grant of the paragraph (a) of the interim relief per provisional order after the applicant abandoned paragraph (b) of the interim relief sought.

The first and second respondents opposed the application and stressed, that, the respondents did not regard the letter, dated 10 May 2017, as a Court Order, and thus did not intend to act upon it to eject the applicant as suggested by the applicant.

They also argued that the application was not necessary in the light of CHITAPI J's judgment granting a Spoliation Order to the applicant.

They therefore, on that basis, sought the dismissal of the application....,.

The letter of 10 May 2017, from Tsimba, the Acting Provincial Resettlement Officer Mashonaland East, addressed to the applicant, reads as follows:

“Re: Cut-Off Date of Occupation and Farming Activities at Plot 3 & 5 Ivordale Farm Goromonzi

Reference is made to the above.

You are advised, that, the cut-off date of your occupation and farming activities at Plot 3 & 5 Ivordale is 30 June 2017 which was reached after assessment of your farming activities in the stated submissions on 9 February 2017. You have to confine your farming activities in sub-division 4 of Ivordale Farm measuring 247.09 hectares which was allocated to you. After 30 June, no further activities by you at plot 3 & 5 of Ivordale Farm will be entertained.”

After listening to the parties submissions, l make the following findings:

(i) The interim relief of a spoliation order granted to the applicant by CHITAPI J, in HC12511/16, is extant and all respondents are bound by it as the provisional order has not been discharged.

HH595-15 : MAKANDI TEA AND COFFEE ESTATE (PVT) LTD vs THE ATTORNEY GENERAL OF ZIMBABWE N.O. and V. GAPARA N.O.
Ruled By: MAKONI J

This is an application for review of the second respondent's decision in which he declined to stay proceedings before him in terms of section 7 of the Arbitration (Resolution of International Investment Disputes) Act [Chapter 7:03] (the Act).

The background to the matter is that the applicant is a company duly incorporated in terms of the laws of Zimbabwe, which is in the business of growing coffee, macadamia nuts, avocados, and maize.

On 8 July 2010, the applicant registered a request for arbitration with the International Centre for Settlement of Investment Disputes (ICSZD), against the Government of Zimbabwe (State), in relation to land which the applicant lawfully owned and occupied before a dispute arose with the State.

The State subsequently defended these proceedings which are pending.

On 28 April 2011, a director of the applicant, Bernard Alexander Josef von Pezold (Pezold) was summoned to appear at Chipinge Magistrates Court facing charges of contravening section 3 of the Gazetted Lands (Consequential Provisions) Act [Chapter 20:28].

It was alleged, that, the applicant continued in occupation of gazetted land without lawful authority.

In his defence, the applicant denied the allegations and asserted, that, the State is prohibited from bringing the charges under the Constitution of Zimbabwe, the statutes, and international laws ratified by the State.

The applicant relied on Article 26 of the convention which deals with the effect of arbitration and section 7 of the Arbitration (Resolution of International Investment Disputes) Act [Chapter 7:03] which deals with stay of court proceeding where the matter is within the jurisdiction of the International Centre for Settlement of Investment Disputes (ICSZD).

The applicant then mounted an application for stay of proceedings in terms of section 7 of the Arbitration (Resolution of International Investment Disputes) Act.

It is this application that was dismissed by the second respondent which is the subject of this review.

The following are the grounds for review as set out in the Court Application:

“(i) The effect of section 7 of the Arbitration (International Investment Disputes) Act [Chapter 7:03] ('the Act') as read with Article 26 of the International Convention on Settlement of International Disputes Convention (18 March 1965), ratified by the respondent on 20 May 1994;

(ii) The significance of the Bilateral Investments Protection and Promotion Agreement (BIPPA) between Zimbabwe and Germany;

(iii) The effect of section 16(9b) of the Constitution of Zimbabwe on the dispute;

(iv) The difference between ownership and occupation, and, as such, the fact that the applicant had a residual right with respect to occupation;

(v) Instead, he erroneously suggested, that, a separate but related constitutional application had been dismissed by the Magistrates Court on the alleged ground that the applicant was abusing court process; and

(vi) He erroneously reasoned, that, because a previous application, on with the same parties, on a different cause of action, had been dismissed, therefore, the application before him was to be dismissed.”

The application is opposed.

The opposing affidavit was filed by the trial magistrate, the second respondent.

The applicant took issue, in limine, with the propriety of the second respondent deposing to the opposing affidavit.

It was submitted, that, the second respondent needed no protection which would justify his mounting of this opposition. The proper course would have been for a representative of the first respondent to depose to the opposing affidavit.

The respondents did not make any submissions in opposition to this point.

In Leopard Rock Hotel (Pvt) Ltd v Wallen Construction (Pvt) Ltd 1994 (1) ZLR 255 (S) at 278B-F, the following was stated:

“Such belief in the mind of the reasonable litigant is bound to be heightened by the fact, that, not only has the arbitrator refused to recuse himself, but, he has descended into the arena of battle by actively participating in the proceedings for his removal and making common cause with the party maintaining that he should not recuse himself.”

The court continued at 279B-F:

“In my view, in circumstances such as these, an arbitrator, umpire, judge or other adjudicating body has one of two choices. The first is that he could file an affidavit setting out facts which he considers may be of assistance to the court. So long as such facts are stated colourlessly, no-one could object; but, if the affidavit should err plainly in support of one of the parties, it might expose the adjudicator to the odium of the court.

It is most undesirable that any arbiter or other adjudicator of a dispute should appear to be pitching camp with, or rendering assistance to, one of the contestants to the dispute before him: for, the other party is likely to gain that impression that the arbiter and his adversary are conspiring against him: and such an impression would reinforce his belief that the arbiter is biased against him: see the remarks of McNALLY JA in Blue Ribbon Foods Ltd v Dube NO & Anor 1993 (2) ZLR 146 (S) at 148.

When the arbiter makes common cause with one of the parties in such proceedings, any façade of justice is shattered; the arbiter is seen to have descended into the arena with the possible consequential blurring of his vision by the dust of battle. Unconsciously, he deprives himself of the advantage of calm and dispassionate observation.

The second choice of the arbitrator or umpire, when served with notice of motion for his removal, or to set aside his award, is to take no action and abide by the court's decision.”

The proper approach in this matter would have been for the second respondent to set out facts which he considered would be of assistance to the court and end there. In the alternative, he would have asked a representative of the first respondent to file the opposing affidavit on behalf of the respondents rather than file an affidavit where he clearly supports one side.

The grounds upon which this court can exercise its powers of review are laid down in section 26 of the High Court Act [Chapter 7:06]. These have been canvassed in a number of authorities in our jurisdiction.

In Tenesi v PSC 1996 (2) ZLR 44, quoted with approval in Ramilewa v Secretary of the Public Service Commission 1988 (1) ZLR 257 (H)…, GREENLAND J quoted with approval from SA Defence and Aid Fund and Anor v Minister of Justice 1967 (1) SA 31 (C), where CORBETT J…, said…,:

“The court can interfere and declare the exercise of the power invalid on the ground of a non-observance of the jurisdictional fact only where it is shown that the repository of the power, in deciding that the pre-requisite fact or state of affairs existed, acted mala fide or from ulterior motive or failed to apply his mind to the matter: see eg Minister of the Interior v Bechler and Others supra [1948 (3) SA 409 (A)]; African Commercial and Distributive Workers Union v Schoeman NO and Another 1951 (4) 266 (T); Sachs 1953 (1) SA 392 (A).”

In casu, the applicant contends, that, the second respondent failed to address his mind to the issues before him. He asked himself the wrong question, and, as a result, addressed the wrong question.

The position, in such cases, was laid down in Bridges & Hulmes P/L v The Magistrate, Kwekwe & Ors 1996 ZLR 189 (HC)…, where it was stated:

“Because of the wrong question of law, he directed his inquiry at matters he should not have considered and failed to apply his mind to the matters in issue.”

In casu, the applicant had previously applied for referral to the Supreme Court of certain questions relating to the violation of the Declaration of Rights.

What was sought in that application was a determination of whether or not the applicant had been denied the right to the protection of law as guaranteed under section 18(1) of the Constitution.

The magistrate dismissed the application.

In the proceedings under review, the applicant made an application in terms of section 7 of the Arbitration (Resolution of International Investment Disputes) Act [Chapter 7:03].

Section 7 of the Arbitration (Resolution of International Investment Disputes) Act provides:

“7. Stay of court proceedings where matter within jurisdiction of Centre

If any proceedings are instituted in any court in regard to any matter which, under the Convention, is required to be submitted to the Centre for conciliation or arbitration, any party to the proceedings may apply to the court to stay the proceedings, and the court, unless satisfied that the matter is not required to be submitted to the Centre under the Convention, shall make an order staying the proceedings.”

The applicant argued, before the second respondent, that, the criminal proceedings before him were proceedings within the contemplation of section 7 of the Arbitration (Resolution of International Investment Disputes) Act. He therefore applied for relief pending the determination of related proceedings in the International Centre for Settlement of Investment Disputes (ICSZD) to which the Arbitration (Resolution of International Investment Disputes) Act applied.

The second respondent was therefore enjoined to interpret section 7 of the Arbitration (Resolution of International Investment Disputes) Act and determine whether or not the proceedings before him fall under the definition of proceedings as enunciated in the section.

The second respondent did not address his mind to this issue, but, instead, said the following:

“It is important to note, that, this application is preceded by another application under section 24(2) of the Constitution of Zimbabwe wherein was sought a referral of the matter to the Supreme Court of Zimbabwe for the resolution of what the applicant alleged were constitutional questions. The application was dismissed by this court and the reasons for the dismissal are filed of record.

The instant application was opposed by the State on the grounds, inter alia, that the applicant was abusing court process by bringing the same application before the Court which had already made its decision on it.

I do not see the difference, in essence and content, between the two applications.”

Clearly, the magistrate fell into error, as did the magistrate in Williams & Anor v Msipa N.O. and Anor SC22-10.

In that matter…,MALABA DCJ observed:

“The reasons for the refusal by the magistrate of the request by the applicant for the referral to the Supreme Court of the two constitutional questions show that he raised, for his consideration, the false issue of the postponement of the trial.”

In casu, the magistrate raised the false issue, that, the present application, being made in terms of section 7 of the Arbitration (Resolution of International Investment Disputes) Act, is the same as an application made for the referral of a constitutional issue to the Supreme Court.

This was not the same application. The issues are clearly different.

In the first application, the relief sought was referral to the Supreme Court on the basis that the prosecution was a breach of the applicant's fundamental rights.

What the second respondent was required to determine was whether the request was frivolous and vexatious.

This question did not arise in the present proceedings.

What the second respondent was required to determine, in the proceedings under review, was whether prosecution of the applicant amounted to 'proceedings' within the contemplation of section 7 of the Arbitration (Resolution of International Investment Disputes) Act.

If he had found in the positive, the second respondent would have no discretion. The section is couched in peremptory terms.

It is clear, that, the second respondent failed to apply his mind to these differences of substance.

He considered, that, the two distinct and separate applications that required distinct and separate jurisdictional facts for the determination, were the same.

The reasoning of the second respondent falls within the four corners of what has come to be known as the Wednesbury principles, namely, that:

“It is true to say, that, a decision on a competent matter is so unreasonable that no reasonable authority could ever have come to it, then the court can interfere.”

See Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1947] 2 ALL ER 280....,.

The second respondent, in its opposing affidavit and in his Heads of Argument, does not address the pertinent question whether the proceedings before him were 'proceedings' as contemplated by section 7 of the Arbitration (Resolution of International Investment Disputes) Act.

There is no mention of section 7 of the Arbitration (Resolution of International Investment Disputes) Act in his Heads of Argument at all.

He did not apply his mind to the real issue before him.

Before I conclude, I would want to observe, that, the second respondent, in his opposing affidavit, took offence by the adoption of the Wednesbury formulation in the court application.

He felt that it was contempous of his office and that of the entire judicial system.

Whilst the expression that the second respondent had “taken long leave of mind” might have gone over board, it is not uncommon to find, in court judgements, expressions such as 'no reasonable authority could ever have come to it:' see Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1947] 2 ALL ER 280; 'He just did not apply his mind to the consideration of that question:' see Williams & Anor v Msipa N.O. and Anor SC22-10 …,.

This is not meant to be an attack on the person of the second respondent or his office.

CC02-21 : TEMBA MLISWA vs PARLIAMENT OF THE REPUBLIC OF ZIMBABWE
Ruled By: MALABA CJ, GWAUNZA DCJ, GARWE AJCC, MAKARAU AJCC, GOWORA AJCC, HLATSHWAYO AJCC and PATEL AJCC

BackgroundThe applicant is a duly elected Member of Parliament for the Norton Constituency. On 24 June 2020, during an ordinary sitting of the National Assembly over which the Speaker of Parliament was presiding, he was removed from Parliament and suspended for six consecutive sittings for allegedly behaving in a violent ...

Background

The applicant is a duly elected Member of Parliament for the Norton Constituency. On 24 June 2020, during an ordinary sitting of the National Assembly over which the Speaker of Parliament was presiding, he was removed from Parliament and suspended for six consecutive sittings for allegedly behaving in a violent and grossly disorderly manner.

The expulsion and suspension were ordered by the Speaker of Parliament (“the Speaker”).

Aggrieved by the expulsion and suspension, the applicant filed this application on 20 July 2020. The application, brought specifically in terms of section 167(2(d) of the Constitution, alleged that the respondent had failed to fulfil a constitutional obligation to ensure compliance with its Standing Orders.

In particular, the applicant sought to demonstrate how the expulsion was inconsistent with the procedures and the powers granted to the Speaker by the Standing Orders and in terms of which the Speaker purportedly acted.

The applicant further denied having been disorderly as alleged or at all. He also challenged the propriety and validity of the punishment that was meted out to him on the basis that he was not afforded the right to be heard before he was punished.

The application was opposed with the respondent's opposing affidavit being deposed to by the Speaker.

In addition to opposing the matter on the merits, the respondent raised five preliminary points.

Not necessarily in the same order in which the points were raised in the opposing affidavit, the respondent;

(i) Challenged the jurisdiction of this Court;

(ii) The validity of the application itself, by alleging that it was fatally defective for want of compliance with the rules of the court; and

(iii) The efficacy of the relief sought which it alleged was moot since the applicant had already served the punishment by the time of the filing of the application.

(iv) The respondent also challenged the non-joinder of the Speaker which it alleged was fatal to the application; and

(v) Finally, it requested that this Court withholds its jurisdiction as the matter was pending before the High Court where similar relief had been sought under case no. HC3367/2020.

Regarding the merits of the application, the respondent contended, in the main, that, the applicant had indeed behaved in a disorderly manner and that the punishment meted out to him was appropriate and in accordance with the powers granted to the Speaker by the Standing Orders. The respondent specifically denied, that, the Speaker had exceeded his authority and powers as alleged in the application or at all....,.

As stated above, the respondent raised the issue of the jurisdiction of this Court as one of its preliminary points. This it however did in direct response to the allegation that the applicant had not been afforded the right to be heard before he was punished.

In response to this specific allegation, the respondent contended, that, the applicant ought to have approached the High Court on review, challenging the procedure leading to his punishment. It was thus the position of the respondent, erroneously held in my view, that, since the High Court also enjoyed review jurisdiction in the matter, the jurisdiction of this Court was not triggered.

Whilst nothing turns on this point, I wish to note, in passing, that, this Court enjoys concurrent jurisdiction with other courts in constitutional matters. The coincidence of jurisdiction with the other courts does not oust the jurisdiction of this court.

The position may be contrasted with instances where this court has been granted exclusive jurisdiction. In those instances, naturally, it is the jurisdiction of the other courts that is ousted even if the matter is, technically, a constitutional matter....,.

That the power granted to the courts by the new Constitution, to hold public officers accountable to the Constitution, marks a clear departure from the State power sharing arrangement provided for under the repealed Constitution, and the jurisprudence that emerged under that order is now commonplace.

Our constitutional order has evolved from one where the conduct of those wielding public power was predominantly immune to judicial review, insulated and shielded from such by the strict application of the doctrine of separation of powers, to one where the conduct of all public affairs must measure up to the constitutional imperatives under the watchful eye of the judiciary, which, in turn, is also obliged to always venerate the Constitution.

Commenting on the new constitutional order, PATEL JA, in Judicial Service Commission v Zibani & Others SC68-17 had this to say:

“It is axiomatic that Zimbabwe is a constitutional in contradistinction to a parliamentary democracy: see Biti & Anor v Minister of Justice, Legal and Parliamentary Affairs & Anor 2002 (1) ZLR 177 (S) at 190A-B. This fundamental principle and its concomitant legal ramifications are codified in section 2 of the Constitution as follows:

(1) This Constitution is the supreme law of Zimbabwe, and, any law, practice, custom or conduct inconsistent with it is invalid to the extent of the inconsistency.

(2) The obligations imposed by this Constitution are binding on every person, natural or juristic, including the State and all executive, legislative, and judicial institutions and agencies of government at every level, and must be fulfilled by them.”

Adding a building block onto the now settled jurisprudence on the new Constitutional dispensation, HLATSHWAYO JCC, in Chironga and Another v Minister of Justice, Legal and Parliamentary Affairs and Others CC14-20 opens his judgment by noting that:

“One of the crucial elements of the new constitutional dispensation, ushered in by the 2013 Constitution, is to make a decisive break from turning a blind eye to constitutional obligations. To achieve this goal, the drafters of the Zimbabwean Constitution Amendment No.20 Act 2013 (“the Constitution”) adopted the rule of law and the supremacy of the Constitution as some of the core founding values and principles of our constitutional democracy. For this reason, public office bearers ignore their constitutional obligations at their own peril.”

The above remarks are ample evidence, if any is needed, that, the doctrines of constitutional supremacy and accountability, under the new Constitution, have been fully embraced by this Court and underpin the jurisprudence that is emerging therefrom.

Appealed
CC01-20 : WILLMORE MAKUMIRE vs MINISTER OF PUBLIC SERVICE, LABOUR & SOCIAL WELFARE and ATTORNEY-GENERAL OF ZIMBABWE
Ruled By: MALABA CJ, GARWE JCC, MAKARAU JCC, GOWORA JCC, PATEL JCC, GUVAVA JCC, MAVANGIRA JCC, MAKONI JCC and BERE JCC

Section 68(1) of the Constitution protects the right of every person to administrative justice.

CC04-13 : BRIAN JAMES vs ZIMBABWE ELECTORAL COMMISSION and MINISTER OF LOCAL GOVERNMENT RURAL & URBAN DEVELOPMENT and MINISTER OF JUSTICE & LEGAL AFFAIRS and OTHERS
Ruled By: CHIDYAUSIKU CJ, MALABA DCJ, ZIYAMBI JA, GWAUNZA JA, GARWE JA, GOWORA JA, PATEL JA, HLATSHWAYO JA and CHIWESHE AJA

It is trite, that, any administrative decision adversely affecting the rights of another must be accompanied by the reasons for that decision.

CC10-22 : FRANCIS BERE vs JUDICIAL SERVICE COMMISSION and SIMBI MUBAKO and REKAYI MAPOSA and TAKAWIRA NZOMBE and VIRGINIA MABHIZA and PRESIDENT OF ZIMBABWE and MINISTER OF JUSTICE LEGAL & PARLIAMENTARY AFFAIRS
Ruled By: GARWE JCC, HLATSHWAYO JCC and PATEL JCC

This is an application lodged in terms of Rule 32 of the Constitutional Court Rules 2016, for leave to appeal against the whole judgment of the Supreme Court (the court a quo) handed down on 14 January 2022 as Judgment SC01-22.The decision of the court a quo had dismissed the ...

This is an application lodged in terms of Rule 32 of the Constitutional Court Rules 2016, for leave to appeal against the whole judgment of the Supreme Court (the court a quo) handed down on 14 January 2022 as Judgment SC01-22.

The decision of the court a quo had dismissed the applicant's appeal against the judgment of the High Court in Case No. HC2302/20.

The Background

The applicant is a former judge of the Supreme Court. He has cited seven respondents in all. The first respondent is the Judicial Service Commission. The second, third, and fourth respondents (Simbi Veke Mubako, Rekayi Maposa and Takawira Nzombe) were the members of a Tribunal that was established to inquire into the question of the applicant's removal from judicial office. The fifth respondent (Virginia Mabhiza) was the Secretary of that Tribunal. The sixth respondent is the President of Zimbabwe, while the seventh respondent is the Minister of Justice, Legal and Parliamentary Affairs.

Both the sixth and seventh respondents are cited in their official capacities.

On 3 March 2020, the applicant was suspended from judicial office following the appointment of the aforementioned Tribunal by the sixth respondent (hereinafter “the President”). The Tribunal was established to consider the applicant's suitability to hold the office of a judge. The suspension was pursuant to a resolution by the first respondent (hereinafter “the JSC”) made on 13 December 2019 to refer the question of his removal from office to the President.

The applicant was dissatisfied with the manner in which his case had been referred to the President.

Consequently, on 13 May 2020, he filed an application in terms of section 4 of the Administrative Justice Act [Chapter 10:28] alleging, that, the Judicial Service Commission (JSC) had failed to comply with section 3(1)(a) of the Administrative Justice Act by failing to act lawfully, reasonably, and in a fair manner when it gave advice to the President, in terms of section 187(3) of the Constitution.

The High Court dismissed the application before it with costs in favour of the Judicial Service Commission (JSC). The court found that the question of the applicant's alleged gross misconduct was a matter for the Tribunal to determine.

On appeal to the Supreme Court, the applicant raised five grounds of appeal, which are largely replicated in the intended grounds of appeal to this Court in the event that the instant application for leave to appeal is granted.

The Supreme Court upheld the finding of the High Court, that, the deponent to the Judicial Service Commission's opposing affidavit was lawfully authorised to do so. The court a quo also upheld the finding of the High Court, that, the applicant had failed to prove that the JSC was inquorate and functus officio at its meeting held on 13 December 2019. Lastly, the court held, that, the applicant's right to be heard had not been violated.

In the event, the court dismissed the applicant's appeal with no order as to costs.

The intended appeal before this Court is predicated on the assertion, that, the court a quo erred by avoiding an in-depth determination of various constitutional issues before it, despite having been alive to those issues.

The applicant accordingly asserts, that, the question of whether or not there was a constitutional matter before the court a quo must be answered in the affirmative. He further avers that the intended appeal to this Court does enjoy prospects of success.

The intended grounds of appeal

As paraphrased, the intended five grounds of appeal asseverate that the court a quo erred and thereby misdirected itself in the following respects:

(i) In determining that the appeal was moot when the challenge to the referral by the Judicial Service Commission (JSC), under section 187(3) of the Constitution, was that it was unconstitutional.

(ii) In not finding, that, any person who was not a member of the Judicial Service Commission (JSC) was prohibited from representing it in any application pursuant to section 187(3), and, consequently, in not finding that the JSC was not properly before the High Court.

(iii) In not finding that section 344 of the Constitution places the onus to prove that it had a quorum on the Judicial Service Commission (JSC) and not on the appellant.

(iv) In not finding that section 187(3) of the Constitution requires the Judicial Service Commission (JSC) to grant a judge the full scope of the audi alteram partem rule before sending its advice to the President.

(v) In not finding that the Judicial Service Commission (JSC) is required to determine the existence or otherwise of the jurisdictional facts under section 187(3) before sending its advice to the President.

The applicant avers that the foregoing grounds of appeal enjoy prospects of success for a number of reasons:

(i) As regards the first ground, he contends, that, mootness does not arise when a thing is void for being unconstitutional.

(ii) On the second ground, he states, that, the Constitution does not permit the Judicial Service Commission (JSC) to delegate to its Secretary the critically important duty of defending in court its advice to the President under section 187(3) of the Constitution.

(iii) With respect to the third ground, he argues, that, section 344 of the Constitution would be undermined if a constitutional body is not obliged to prove that it had a quorum and that the independence of the judiciary would be threatened by the possibility of an inquorate Judicial Service Commission (JSC) proceeding in terms of section 187(3) of the Constitution.

In relation to the fourth and fifth grounds, he avers, that, a rigorous process preceding the tendering of advice in terms of section 187(3) of the Constitution requires the full scope of the audi alteram partem rule and a finding by the Judicial Service Commission (JSC) on the existence of the jurisdictional facts contemplated in section 187(1) of the Constitution.

(iv) Lastly, the applicant asserts, that, the intended appeal is of public importance because it is central to the independence of the judiciary. He contends, that, the position of this Court on the issues raised will clarify the law and protect the Constitution.

In the premises, he prays for an order for leave to appeal to be granted.

The Judicial Service Commission (JSC), through an affidavit deposed to by its Secretary, firmly opposes the instant application.

It denies that there are any constitutional issues or matters to be decided as contemplated by Rule 32(2) of the Rules. It also asserts, that, the issues that were before the court a quo were resolved on non-constitutional bases. It further disputes the argument, that, it is in the public interest to grant leave to appeal. It is contended that the application does not satisfy the requirements for leave to appeal under Rule 32 of the Constitutional Court Rules.

The sixth and seventh respondents (President of Zimbabwe and the Minister of Justice, Legal and Parliamentary Affairs) also oppose the application through an affidavit deposed to by the seventh respondent.

In essence, it is averred, that, the court a quo did not decide any constitutional matter. Consequently, it is argued that the applicant has failed to show that his application has any prospects of success.

Both respondents pray that the application be dismissed with costs.

Applications for Leave to Appeal

Applications for leave to appeal to this Court are governed by Rule 32 of the Constitutional Court Rules. The requirements to be satisfied by an applicant seeking leave to appeal are now firmly established in the jurisprudence of the Court. They are as follows:

(i) The constitutional matter raised in the decision to be appealed against, and any other connected issues, must be clearly and concisely set out.

(ii) The applicant must intend to apply for leave to appeal against the decision of the subordinate court on a constitutional matter.

(iii) The applicant must demonstrate prospects of success on appeal.

(iv) The intended appeal must be in the interests of justice which are a paramount consideration.

See Cold Chain (Pvt) Ltd t/a Sea Harvest v Makoni 2017 (1) ZLR 14 (CC)…,.; Muza M v Saruchera N.O. & Ors CC05-19; Bonnyview Estate (Pvt) Ltd v Zimbabwe Platinum Mine (Pvt) Ltd & Anor CC06-19; Ismail v St. Johns College & Ors CC19-19; TBIC Investments (Pvt) Ltd v Mangenje & Ors CC15-20; Rita Mbatha v National Foods CC06-21; Gift Konjana v Dexter Nduna CC09-21.

I shall address each of the above requirements ad seriatim in their application to the facts and circumstances of the present matter.

Clear and concise exposition of constitutional matter

The application in casu, at its outset, relates to the requirements of Rule 32(3)(c) of the Constitutional Court Rules and proceeds to set out “the constitutional matters raised in the decision sought to be appealed against.”

These matters tally with the five grounds of appeal delineated in the draft notice of appeal. They are further elaborated in the applicant's founding affidavit.

There can be no doubt, and this appears to be common cause, that the applicant has satisfied and complied with the requirements of Rule 32(3)(c) of the Constitutional Court Rules.

Decision appealed against on constitutional matter

The more difficult question that arises herein is whether or not the decisions of the High Court and the Supreme Court, being the decisions impugned in casu, bear upon any constitutional issue or matter.

Counsel for the applicant answers that question in the affirmative.

He submits, that, the relevant constitutional matters were raised, both in the High Court and before the Supreme Court. In support of his position, he refers to several passages in the applicant's founding affidavit before the High Court and in his heads of argument before both of the subordinate courts.

Counsel for the applicant further submits, that, the fact that the Supreme Court wrote its judgment without reference to these points is irrelevant.

He nevertheless accepts, that, the mere reference to a constitutional point, whether in the pleadings or in the judgment to be appealed against, is not sufficient to satisfy the requisite test.

He is absolutely correct in that respect: see Moyo v Sgt. Chacha & Ors CC19-17; Chani v Mwayera J & Ors CC02-20.

He also contends, much less persuasively so in my view, that a constitutional matter does not cease to be so simply because there is no reference to the Constitution itself.

It is necessary to pinpoint the relevant references adverted to by counsel.

In the founding affidavit in Case No. HC2302-20 at paragraph 12, the applicant avers, that, the President can only act under section 187(3) of the Constitution, if the advice given to him is lawful in compliance with section 3(1)(a) of the Administrative Justice Act. At paragraphs 55 and 56, the applicant asserts that no jurisdictional circumstances exist that would have entitled the Judicial Service Commission (JSC) to refer the matter to the President.

In particular, he avers that the JSC does not appear to have addressed its mind at all to the grounds for removal from judicial office prescribed by section 187(1) of the Constitution. He then argues, that, if the decision to refer the matter to the President was premised on facts incapable of sustaining any of the three grounds for the removal of a judge “such a decision was grossly unreasonable and irrational.”

At paragraph 57, the applicant attacks the decision of the Judicial Service Commission (JSC) to revisit his case on the basis of new allegations without having been availed an opportunity to consider and respond to those allegations. This was in violation of the audi alteram partem rule and “the dictates of natural justice.”

At paragraphs 63, 65 and 66, the applicant avers that the JSC was both inquorate and improperly constituted when it took the decision to refer his matter to the President and the subsequent decision to suspend him.

These decisions were made outside its constitutive instruments, in particular section 189 of the Constitution, and, therefore “liable to be set aside as being unlawful and grossly irregular.”

At paragraph 68, the applicant assails the failure of the Judicial Service Commission (JSC) to place before the High Court a record of its minutes and deliberations, in keeping with its mandate under section 191 of the Constitution to conduct its business in “a just, fair, and transparent manner.”

At paragraph 70, the applicant observes that the office of a judge is sacrosanct; and, at paragraph 77, he affirms the need for the JSC to protect its judges from unmeritorious attacks on their dignity and standing.

He then concludes that the JSC's advice to the President “was contrary to section 3(1)(a) of [the Administrative Justice Act] and thus null and void”. Accordingly “the subsequent acts of [the President are a nullity and must be set aside.”

Turning to the applicant's heads of argument in the High Court, paragraphs 2 to 4 address the point, that, the Judicial Service Commission (JSC) cannot delegate its constitutional duties, in particular, the defence of its conduct under section 187(3) of the Constitution, to its Secretary or Acting Secretary. The same point is addressed at paragraphs 2 to 7 of the applicant's heads of argument before the Supreme Court.

The applicant reiterates the argument that the JSC was not properly before the High Court, as the deponent to its opposing affidavit was prohibited by the Constitution from representing it in an application brought by a judge pursuant to section 187(3) of the Constitution.

At paragraphs 11 to 17, the applicant sets out his attack on the quorum of the Judicial Service Commission (JSC) at the meeting whereat it decided to refer his matter to the President under section 187(3) of the Constitution. Reliance is placed upon section 341(1) and (2) of the Constitution pertaining to the quorum of any constitutional body.

It is argued, that, the decision of the JSC “was unconstitutional, unlawful and null and void” and that, consequently, the onus to prove that it was quorate at the meeting in question shifted to and lay upon the JSC rather than the applicant.

At paragraphs 36 to 43, the applicant canvasses the alleged failure of the High Court to determine the existence or otherwise of the jurisdictional facts under section 187(1) of the Constitution warranting the referral of the applicant's case to the President in terms of section 187(3). It is argued, that, the actions of the JSC, under section 187(3) of the Constitution, are “clearly subject to review” and that “what was before the court a quo was a challenge to the prior administrative action of advising [the President] under section 187(3) of the Constitution.”

It is further argued that the failure of the Judicial Service Commission (JSC) to “indicate the ground under section 187(1) that is being “relied on” rendered “the action under section 187(3) unconstitutional, unlawful and null and void.”

Lastly, it is submitted that “section 187(1) requires [the JSC] to first reach the conclusion that there is a prima facie case…, before acting under section 187(3)” and that “to reach the prima facie verdict, [the JSC] must carry out an adjudicative process and set out reasons for its conclusions…, before invoking section 187(3).”

Counsel for the first respondent submits, that, the application before the High Court was clearly premised on the provisions of the Administrative Justice Act. The court was not seized with any specific constitutional challenge. In essence, so it is argued, the applicant did not file any constitutional matter before the High Court or the Supreme Court.

Consequently, the doctrines of subsidiarity and avoidance come into play. Additionally, leave to appeal is a very limited right, and, in the present case, there is no basis for appealing to this Court.

Counsel for the sixth and seventh respondents adopts the same stance.

He submits, that, the applicant did not directly impugn the conduct of the Judicial Service Commission (JSC) on any constitutional ground. He filed what was essentially an Administrative Law matter and he cannot deviate from that position. Furthermore, the applicant attacks the Supreme Court for not making various findings. This shows that there was no proper basis for that court to adjudge any constitutional matter.

It is further argued, that, references to the Constitution before the High Court and the Supreme Court were purely incidental and not directly relied upon. Such references were only ancillary and in support of section 3 of the Administrative Justice Act. Accordingly, both subordinate courts were correct in not dealing with the case as involving any constitutional matter.

In reply, counsel for the applicant argues, that, where a constitutional issue arises in any litigation, the court may deal with it, and, if it does address that issue, then a constitutional appeal must lie against its decision.

Moreover, a point raising a constitutional issue may be taken at any time.

Co-counsel for the applicant submits, that, when one relates to the Administrative Justice Act then one is seeking to enforce the Constitution itself.

As regards referrals to the President under section 187(3) of the Constitution, the Judicial Service Commission (JSC) must apply its mind to that process and choose to apply the procedures available under the Judicial Code of Ethics as opposed to a referral to the President in terms of section 187(3) of the Constitution.

Proceedings in the High Court

The application before the High Court, in its heading, declares, categorically and unequivocally, that, it is a court application in terms of section 4 of the Administrative Justice Act.

Again, in paragraphs 5 and 6 of the application, it is asserted that the Judicial Service Commission (JSC), being an administrative authority, failed to act in accordance with section 3(1)(a) of the Administrative Justice Act and that its decision, to refer the matter to the President, was “unlawful, grossly irregular and therefore invalid.”

In similar vein, the founding affidavit in the High Court sets out the nature of the application in paragraph 11 as being made in terms of section 4 of the Administrative Justice Act and on the premise that the JSC did not comply with section 3(1)(a) of the Administrative Justice Act in that it failed “to act lawfully, reasonably, and in a fair manner.”

On the other hand, paragraph 7(5) of the application, relating to the alternative prayer sought, is framed on the basis that Proclamation No.1 of 2020 does not set out the jurisdictional circumstances necessary to found a prima facie case for the dismissal of a judge as envisaged by section 187(3) of the Constitution. This is also mirrored in paragraph 5 of the draft order sought in the High Court.

Additionally, the founding affidavit, in paragraph 56 refers to the failure of the JSC to apply its mind to the grounds for the removal of a judge in terms of section 187(1) of the Constitution.

However, very notably, the conclusion drawn in that regard is that the decision of the Judicial Service Commission (JSC), to refer the matter to the President, was “grossly unreasonable and irrational.”

Turning to the record of proceedings before the High Court, counsel for the applicant, in addressing the propriety of the JSC's opposing affidavit, its allegedly inquorate status, and the absence of jurisdictional circumstances warranting referral of the matter to the President, certainly appears to have relied upon various provisions of the Constitution in order to buttress his arguments.

Nevertheless, it is abundantly clear, that, the judgment of the High Court, and its reasoning in arriving at its conclusions, are not in any way grounded upon any constitutional principle or requirement. On the contrary, the judgment and the reasons therefor are firmly anchored in the relevant provisions of the Administrative Justice Act.

Having regard to the pleadings and proceedings in the High Court, it appears to me, that, the applicant did not raise any specific constitutional issue for determination by that court.

To the extent that he did allude to certain provisions of the Constitution, he did so purely incidentally in order to demonstrate the alleged failure of the Judicial Service Commission (JSC) “to act lawfully, reasonably and in a fair manner” in compliance with section 3(1)(a) of the Administrative Justice Act.

The applicant's cause of action, as expounded throughout the application and his founding affidavit, was essentially predicated on the perceived unlawful, unreasonable, and unprocedural conduct of the JSC, in alleged violation of its duties and obligations as an administrative authority, albeit as a creature of the Constitution.

Constitutional matter in the High Court

In section 332 of the Constitution, a constitutional matter is defined as “a matter in which there is an issue involving the interpretation, protection, or enforcement of the Constitution.”

Accordingly, a constitutional matter arises where there is an issue in dispute raising questions of law, the resolution of which requires the interpretation, protection, or enforcement of the Constitution.

In South Africa, it is settled law that a constitutional matter cannot arise for the first time on appeal when it was not available or in existence in the subordinate court. This rule was stated as follows in Prince v President, Cape Law Society & Ors 2001 (2) SA 388 (CC)…,:

“Parties who challenge the constitutionality of a provision in a statute must raise the constitutionality of the provisions sought to be challenged at the time they institute proceedings. In addition, a party must place before the court information relevant to the determination of the constitutionality of the impugned provisions….,.

I would emphasise that all this information must be placed before the court of first instance….,.

It is not sufficient for a party to raise the constitutionality of a statute only in the heads of argument, without laying a proper foundation for such challenge in the papers or in the pleadings.

The other party must be left in no doubt as to the nature of the case it has to meet and the relief that is sought. Nor can parties hope to supplement and make their case on appeal.”…,.

Similarly, the established practice of this Court is that in order to determine whether or not there was a constitutional matter before the court a quo, the dispute must be traced back to the court of origin, in this case, the High Court: see Ismail v St. Johns College & Ors CC19-19…,.

I shall proceed to consider the relevant issues that arose for determination in the High Court.

The first issue relates to the representation of the Judicial Service Commission (JSC) by its Secretary. The court considered this to be justified on the basis of section 10(2) of the Judicial Service Act [Chapter 7:18], which bestows the Secretary with the competence to represent the JSC.

It is trite that a constitutional matter cannot arise where the impugned conduct is predicated on an unchallenged and valid statute: see Magurure & Ors v Cargo Carriers International Hauliers (Pvt) Ltd CC15-16…,.

In casu, the question of the legality of the JSC's representation by its Secretary was determined on the basis of extant statutory provisions, which provisions must be presumed to be constitutional: see Mujuru v President of Zimbabwe & Ors CC08-18.

Thus, no constitutional matter could arise in respect of conduct based on the Judicial Service Act and the High Court Rules, unless the provisions in question were themselves impugned for being unconstitutional.

Accordingly, in respect of the first issue, there was no constitutional issue involved.

The second issue concerns the quorum of the Judicial Service Commission (JSC) at its meeting of 13 December 2019.

Both the High Court and the Supreme Court dismissed the claim that the JSC was inquorate on the basis of the absence of pertinent evidence.

The questions as to the proof that was required to show that the JSC did not have the requisite quorum and the party upon whom the onus to prove the same rested are undoubtedly questions of evidence.

In casu, there was no allegation by the applicant, based on any provision of the Constitution, to the effect that he was not required to prove that the Judicial Service Commission (JSC) was inquorate at the relevant time.

In the absence of any such averment, no constitutional matter could have arisen regarding the party upon whom the onus rested to prove that the JSC was quorate or inquorate.

The third issue revolves around the applicant's contention that section 187(3) of the Constitution enjoined the Judicial Service Commission (JSC) to accord to him “the full scope of the audi alteram partem rule” before transmitting its advice to the President.

Critically, the applicant's founding affidavit does not state that he based his entitlement to the full scope of the rule on section 187(3) or any other provision of the Constitution.

Once again, in the absence of any such statement, the constitutional basis of the audi alteram partem rule could not have arisen as an issue for determination before the High Court. Rather, the issue seems to have been raised by way of inference from the Administrative Justice Act and the common law.

Thus, it cannot be said that there was a constitutional issue in this regard.

The fourth issue pertains to the question whether or not the Judicial Service Commission (JSC) was required to determine the existence or otherwise of jurisdictional grounds under section 187(1) of the Constitution before forwarding its advice to the President.

Here, too, although the applicant averred that any one of the three jurisdictional facts in section 187(1) of the Constitution had to be established before the question of his removal was referred to the President, he did not base such requirement on the Constitution.

Instead, he took the position, that, the advice given by the Judicial Service Commission (JSC) “should have been reasonable and grounded in logic.”

He added that the JSC never informed him of the accusation against him that warranted a referral of his matter to the President. He therefore concluded that the decision of the JSC “was grossly unreasonable and irrational.”

It is evident that the applicant did not specifically regard the source of the requirement to establish the jurisdictional facts as being section 187(1) or section 187(3) or any other provision of the Constitution.

In as much as his application was premised on the Administrative Justice Act, it is plausible to assume that he considered that Act to be the legal basis of the supposed requirement to establish jurisdictional facts.

Accordingly, no constitutional matter could have arisen in the absence of a properly pleaded basis that the requirement to establish the requisite jurisdictional facts arose from the Constitution.

Having regard to all of the foregoing, I am constrained to conclude that there was no clearly defined constitutional matter before the High Court, and, consequently, on appeal from that court to the Supreme Court. This is so because the applicant's pleadings in the High Court are entirely unsupportive of the constitutional matters that he alleges to have been before the court.

To put it differently, no constitutional matter could have arisen in that court in the absence of pleadings grounding the determination of the alleged constitutional issues.

It therefore follows that the jurisdiction of this Court cannot be activated as section 167(1)(b) of the Constitution stipulates that the Constitutional Court only decides constitutional matters.

As was held in Cold Chain (Pvt) Ltd t/a Sea Harvest v Makoni 2017 (1) ZLR 14 (CC)…,:

“If the subordinate court had no constitutional matter before it to hear and determine, no grounds of appeal can lie to the Constitutional Court, as a litigant cannot allege that the subordinate court misdirected itself in respect of a matter it was never called upon to decide for the purposes of resolution of the dispute between the parties.”…,.

This Court has recently reinforced the position that the right of appeal to the Court is a limited right, strictly confined to an appeal against the decision of a subordinate court on a constitutional matter only: see Rita Mbatha v National Foods CC06-21 …,.

Proceedings in the Supreme Court

Turning to the proceedings in the Supreme Court, the grounds of appeal before that court are tendentiously framed in a manner importing the supposed application of section 187 of the Constitution.

The oblique references to that provision appear to have been inserted to cloak and circumvent the absence of any constitutional determination in the judgment of the High Court.

Be that as it may, the Supreme Court dismissed all the grounds of appeal in their entirety without venturing into the constitutional domain. The court a quo predicated its findings and decision exclusively on the relevant statutory provisions and the applicable principles of the common law. It did not traverse or determine any constitutional question.

In my view, the Supreme Court quite correctly proceeded on that basis given that the impugned decision of the High Court was devoid of any constitutional issue or determination. In short, neither of the subordinate courts can be impeached for any alleged constitutional aberration in its reasoning or judgment....,.

Costs

The applicant has not sought costs in this matter. However, the Judicial Service Commission (JSC), in its heads of argument, has motivated the Court to grant costs on a legal practitioner and client scale.

Similarly, the sixth and seventh respondents, through their heads of argument and submissions in court, have also sought costs, albeit on the ordinary scale.

The respondents claims for costs are premised on the argument that the application is devoid of merit.

The respondents appear to have disregarded Rule 55 of the Constitutional Court Rules which, in keeping with the established practice of this Court, provides that, generally, no costs are awarded in constitutional matters. This practice was recently re-affirmed in Mbatha v Confederation of Zimbabwe Industries & Anor CC05-21…,.

In my view, there is no basis or justification in this case to depart from the norm of not awarding costs in a constitutional matter.

Disposition

I have concluded, that, no constitutional matter was properly raised before the High Court or the Supreme Court and that neither court determined any constitutional question. It follows, that, the application for leave to appeal in casu is not one for leave to appeal against any decision of a subordinate court on a constitutional matter.

That being the case, inasmuch as there is no constitutional issue to be determined in the intended appeal, it becomes unnecessary to consider the applicant's prospects of success on appeal....,.

In the result, it is ordered that the application be and is hereby dismissed with no order as to costs.

HH24-19 : MOHAMMED ISMAIL (as the guardian of X - a minor) vs SAINT JOHNS COLLEGE and CAVALIERE COORRADO TRINCI N.O. and STEVE MARTIN N.O. and MINISTRY OF PRIMARY AND SECONDARY EDUCATION
Ruled By: CHITAKUNYE J

This is a chamber application brought on a certificate of urgency. The provisional order the applicant seeks was couched as follows:“FINAL ORDER1. That, the conduct of the 1st, 2nd and 3rd respondents consisting of ordering X, a minor enrolled as an Upper Six student at the 1st Respondent, to shave ...

This is a chamber application brought on a certificate of urgency. The provisional order the applicant seeks was couched as follows:

“FINAL ORDER

1. That, the conduct of the 1st, 2nd and 3rd respondents consisting of ordering X, a minor enrolled as an Upper Six student at the 1st Respondent, to shave his beard as a pre-condition to the continuation of his studies at the 1st Respondent, be and is hereby declared null and void and of no force or effect as an infringement of his right to freedom of religion protected by section 60 of the constitution of Zimbabwe.

2. That, the conduct of the 1st, 2nd and 3rd respondents consisting of ordering X, a minor enrolled as an Upper Six student at the 1st respondent, to shave his beard as a pre-condition to the continuation of his studies at the 1st respondent, be and is hereby declared null and void and of no force or effect as an infringement of his right not to be discriminated against on account of religion, such right being protected by section 56 of the Constitution of Zimbabwe.

3. That, the minor, X, be and is hereby allowed to remain a student of the 1st respondent while at the same time keeping his beard in accordance with the Islamic religion.

4. The respondents who oppose this order shall pay the costs of this application on a legal practitioner and client scale.

INTERIM RELIEF:

Pending determination of this matter, the Applicant is granted the following relief:

It is ordered that:

1. That, the 1st, 2nd, and 3rd respondents be and are hereby interdicted from barring X from entering the premises of the 1st respondent for purposes of continuing with his Upper Sixth Form studies notwithstanding the fact that the aforesaid Yusuf Ismail is not shaving his beard.

2. That, the 1st, 2nd and 3rd respondents be and are hereby interdicted from insisting, directly or indirectly, that X shaves his beard as a pre-condition to him continuing with his Upper Sixth Form studies at the 1st respondent.

3. That, the respondents who oppose this order shall pay the costs of this application on a legal practitioner and client scale.”

The basic facts leading to this application were that:

The applicant enrolled his son, X (hereinafter referred to as the minor), at St Johns College in 2013. At the time of enrolment, the applicant signed a contractual document 'Acceptance of Entry' in which were stated the conditions for the acceptance of the minor at St. Johns College. Amongst the terms and conditions that the applicant unequivocally accepted were clauses 2 and 3 which stated that:

“2. That, the student will be bound by all rules and requirements as laid down by the college from time to time in both academic and extra-curricular activities.

3. That, in particular, the student will be bound by the St. Johns College Code of Conduct as amended from time to time.”

The Code of Conduct stipulated the conduct that was expected from all the students without discrimination.

The particular aspect that led to this case pertains to the requirement that all students be cleanly shaven.

At the time of enrolling at the college, the minor had not yet developed a beard. However, towards the end of 2018, he developed a beard.

It is common cause, as between the parties, that, in terms of the Code of Conduct, the minor was expected to shave the beard.

In recognition of this regulation, and as the minor had already been advised to be cleanly shaven in terms of the regulation if he was to continue at the school, on the 1st of October 2018 the applicant wrote a letter to first respondent requesting that the minor be allowed to grow his beard. That letter stated, inter alia, that:

“This letter serves as a humble request to allow my son, X (L6S), to keep his beard. It is imperative that he does not shave his beard for religious purposes. X leads congregational prayers at the mosque, and, it is not permissible for those who lead the prayer to remove their beards.”

After acknowledging the valuable role played by the Regulations, in moulding boys into responsible men, the applicant proceeded to say:

“Allowing Yusuf to keep his beard will permit him to practice his faith without it interrupting his education.”

On the 3rd of October, the first respondent responded to the request with a clear NO in, inter alia, these words:

“Please note, that, we no longer grant exemptions to these requests under any circumstances, and, hence, your appeal for X to keep facial hair on religious grounds is denied. He has to shave and follow our regulations to the letter as outlined in the code of conduct.”

Despite what should have been a clear response, on the 28th of December 2018, the applicant, through his legal practitioner, wrote to the first respondent inquiring if the first respondent would carry out what he termed its threat to bar the minor from attending school if he did not shave his beard.

That letter did not yield a positive response as the first respondent indicated it was yet to refer the applicant's letter to its legal practitioners for a response as the college had been closed as from 14 December and had just opened and so was yet to consult its legal practitioners.

As the 2019 first school term drew closer, the applicant paid school fees for the minor but the school would not allow the minor to attend school without complying with the requirement to be cleanly shaven.

As a consequence, the applicant launched this application.

It is pertinent to note, that, the fact that the applicant and the minor are Muslims is common cause. In this application, the applicant emphasised the fact, that, there is a family tradition in their family to be an Imam. In this regard, the minor is studying to be an Imam hence he is now leading a congregation in prayers. It is in that respect that he said the minor has to strictly adhere to the Islamic requirement for male persons not to shave the beard. The applicant alleged, that, by refusing to allow the minor to attend school without shaving, the school is effectively asking the minor to abandon his religion.

He also alluded to the infringement of the minor's freedom to religion, protected by section 60 of the Constitution, by ordering him to shave his beard before he can be allowed into the school premises.

Other sections he said were infringed include sections 56 and 75 of the Constitution.

The first to third respondents opposed the application....,.

As regards the merits of the application, the respondents contended, that, they were not infringing on the minor's rights. Whilst it was common case that the applicant and the minor are Muslims, it was the applicant who accepted that the minor will comply with the school regulations as stipulated in the Code of Conduct.

As far as the respondents are concerned, they were simply enforcing what the parties had agreed to.

The respondents denied that the minor has been discriminated against on religious ground or at all. All the respondents wanted is for the minor to adhere to school regulations which the applicant had agreed to.

For easy of reference, the sections relied upon in this application state as follows:

“56 Equality and Non-discrimination

(1) All persons are equal before the law and have the right to equal protection and benefit of the law.

(2)…,.

(3) Every person has the right not to be treated in an unfairly discriminatory manner on such grounds as their nationality, race, colour, tribe, place of birth, ethnic or social origin, language, class, religious belief, political affiliation, opinion, custom, culture, sex, gender, marital status, age, pregnancy, disability or economic or social status, or whether they were born in or out of wedlock.

(4) A person is treated in a discriminatory manner for the purpose of subsection (3) if —

(a) They are subjected, directly or indirectly, to a condition, restriction or disability to which other people are not subjected; or

(b) Other people are accorded, directly or indirectly, a privilege or advantage which they are not accorded.

(5) Discrimination on any of the grounds listed in subsection (3) is unfair unless it is established that the discrimination is fair, reasonable, and justifiable in a democratic society based on openness, justice, human dignity, equality and freedom.

(6)…,.”

“60 Freedom of Conscience

(1) Every person has the right to freedom of conscience, which includes —

(a) Freedom of thought, opinion, religion or belief; and

(b) Freedom to practise and propagate and give expression to their thought, opinion, religion or belief, whether in public or in private and whether alone or together with others.

(2) No person may be compelled to take an oath that is contrary to their religion or belief or to take an oath in a manner that is contrary to their religion or belief.

(3) Parents and guardians of minor children have the right to determine, in accordance with their beliefs, the moral and religious upbringing of their children, provided they do not prejudice the rights to which their children are entitled under this Constitution, including their rights to education, health, safety and welfare.

(4) Any religious community may establish institutions where religious instruction may be given, even if the institution receives a subsidy or other financial assistance from the State.”

“75 Right to Education

(1) Every citizen and permanent resident of Zimbabwe has a right to —

(a) A basic State-funded education, including adult basic education; and

(b) Further education, which the State, through reasonable legislative and other measures, must make progressively available and accessible.

(2) Every person has the right to establish and maintain, at their own expense, independent educational institutions of reasonable standards, provided they do not discriminate on any ground prohibited by this Constitution.

(3) A law may provide for the registration of educational institutions referred to in subsection (2) and for the closing of any such institutions that do not meet reasonable standards prescribed for registration.

(4) The State must take reasonable legislative and other measures, within the limits of the resources available to it, to achieve the progressive realisation of the right set out in subsection (1).”

Another section of importance in this regard is section 86 of the Constitution which permits the limitation of fundamental rights in these terms:

“(1) The fundamental rights and freedoms set out in this Chapter must be exercised reasonably and with due regard for the rights and freedoms of other persons.

(2) The fundamental rights and freedoms set out in this Chapter may be limited only in terms of a law of general application and to the extent that the limitation is fair, reasonable, necessary and justifiable in a democratic society based on openness, justice, human dignity, equality and freedom, taking into account all relevant factors, including —

(a) The nature of the right or freedom concerned;

(b) The purpose of the limitation, in particular, whether it is necessary in the interests of defence, public safety, public order, public morality, public health, regional or town planning or the general public interest;

(c) The nature and extent of the limitation;

(d) The need to ensure that the enjoyment of rights and freedoms by any person does not prejudice the rights and freedoms of others;

(e) The relationship between the limitation and its purpose, in particular, whether it imposes greater restrictions on the right or freedom concerned than are necessary to achieve its purpose; and

(f) Whether there are any less restrictive means of achieving the purpose of the limitation.

(3) No law may limit the following rights enshrined in this Chapter, and no person may violate them —

(a) The right to life, except to the extent specified in section 48;

(b) The right to human dignity;

(c) The right not to be tortured or subjected to cruel, inhuman or degrading treatment or punishment;

(d) The right not to be placed in slavery or servitude;

(e) The right to a fair trial;

(f) The right to obtain an order of habeas corpus as provided in section 50(7)(a).”…,.

It is apparent that none of the rights that the applicant alleged would be infringed by the conduct of the respondents falls into the category of inviolable rights enumerated in subsection (3) of section 86 of the Constitution.

Accordingly, in the event that the applicant establishes that the conduct would violate any of the rights, it will be necessary to measure such prima facie violation as against the rights and freedoms of others, in terms of subsection (1), and within the context of the permissible derogations contemplated in subsection (2).

Counsel for both parties referred to the case of Makani & Others v Arundel School & Others 2016 (2) ZLR 157 (S) wherein the above rights were extensively discussed.

In that case, the applicants sought several declarations and consequential relief in respect of alleged violations of their children's constitutional rights.

The applicants had enrolled their children at Arundel School. In enrolling them they agreed that the children will abide by the school's Regulations. The school, being an Anglican school, had its requirements for inculcating value systems in the children. The Regulations were amended making it compulsory for all students to attend chapel prayers in order to reinforce collegiality.

The applicants and their children were practicing Jehovah's Witnesses. Their beliefs are not similar with other Christian denominations.

Upon application to the school for the admission of their children, each of the applicants completed a standard application form in which they indicated that they were Jehovah's Witnesses.

When compulsory chapel attendance was introduced and the children were being compelled to attend against their beliefs, the applicants wrote several letters to the school expressing their complaints. When the school insisted on the children attending Chapel, the applicants approached this court seeking an order for the children to continue attending school without being compelled to attend Chapel pending the determination of their application at the Constitutional Court.

The court considered issues that are also relevant in this matter.

In dealing with the right to education, as enunciated in section 75 of the Constitution, the court alluded to the fact that subsections (1) and (4) thereof pertain to right to education funded and availed by the State. As regards private schools, at page 165H-166B, the court aptly stated that:

“Subsections (2) and (3) of section 75 deal separately with private or independent educational institutions. They permit the establishment of such institutions, subject to such State supervision and control as may be necessary to ensure that they meet prescribed reasonable standards.

The right to establish and maintain an independent institution, guaranteed by subsection (2), must be construed not only in the physical and structural sense but to include as well the establishment and maintenance of educational and ethical standards.

Conversely, the provision does not envisage any right to flout the rules and regulations designed by the institution to safeguard its educational and ethical standards. The only qualification to the rights of an independent institution is that it must not discriminate on any ground prohibited by the Constitution….,.”

What this entails is that a private school is entitled to lay down rules and regulations for the admission of pupils espousing its objectives and ethos as long as those Regulations do not discriminate on any of the grounds prohibited in the Constitution.

In casu, the first respondent is a private/independent educational institution.

In opening its doors to learners, it set its objectives and ethos as stated in its Regulations, including the Code of Conduct. Thus, any learner seeking admission was made aware of the institution's Regulations and had to agree to abide by those Regulations as a pre-condition for admission.

The Code of Conduct was designed to espouse the institution's objectives and ethos thus giving it a unique identity. The Code of Conduct applied to all the learners alike and did not discriminate on any ground. The school, in effect, expected every pupil to maintain the 'St. Johns College' educational and ethical standards as espoused in the Code of Conduct.

Ex- facie, the Code of Conduct does not contravene section 56 of the Constitution as it requires all pupils to abide by the same Regulations in equal measure.

In dealing with a similar provision that required all pupils to attend chapel, PATEL JCC, in Makani & Others v Arundel School & Others 2016 (2) ZLR 157 (S)…, stated that:

“Given that this contractually agreed stipulation is intended to apply to all pupils without distinction, I do not think that it is necessarily discriminatory on the grounds of religion. Every parent who agrees to this condition does so willingly and actively chooses to abide by it implications. Thus, as I have stated earlier, in relation to the right to education, it cannot be said that this mutually agreed condition per se amounts to discriminatory treatment at the point of admission to the school.”

As noted in section 56(4) of the Constitution, what constitutes discrimination would be differentiation in treatment of the pupils.

In casu, the requirement to be cleanly shaven applied to all the pupils and the respondents enforcement of this Regulation was the same in respect of all the pupils.

In their opposition to this application, the respondents have insisted that the applicant's child be treated the same as other pupils. Any differentiation in treatment would bring disharmony within the body of students and would in fact amount to discrimination.

There was thus no discrimination in the way the respondents applied the Code of Conduct or as proscribed by the Constitution.

The other ground argued by the applicant's counsel was that the requirement for the minor to shave infringes on the minor's religious beliefs which is contrary to section 60 of the Constitution on freedom of conscience.

Whilst indeed the insistence on shaving is not in keeping with the minor's religious belief, such a condition was known to the applicant as he signed the contract for the minor's admission to the school.

It is the applicant who, in signing that contract without any reservations, compromised that minor's religious beliefs in order to gain from the educational and ethical standard enjoyed at the first respondent.

The minor can still exercise his freedom of conscience without hindrance as long as he abides by the contractual obligations the applicant accepted in enrolling him at the first respondent.

It is for the applicant and the minor to conform to their contractual obligations and not for the first respondent to be forced to conform to the applicant's beliefs now that the minor is studying to be an Imam.

The applicant must respect the first respondent's rights and interests as an independent institution.

Further, as was held in Makani & Others v Arundel School & Others 2016 (2) ZLR 157 (S)…,:

“The freedom of religion is not inviolable and may be limited in order to respect the rights and freedoms of other persons within the contemplation of section 86(1) of the Constitution of Zimbabwe 2013…,.”

The limitation may be where a person has voluntarily renounced their religious beliefs or if it is reasonable and justifiable in a democratic society.

Freedom of religion must also be exercised reasonably and with regard to the rights of others. As aptly noted by PATEL JCC in Makani & Others v Arundel School & Others 2016 (2) ZLR 157 (S)…,:

“The provision that I deem most apposite to the resolution of this matter, and which I now turn to consider, is section 86(1) of the Constitution. It declares that 'fundamental rights and freedoms…, must be exercised reasonably and with due regard for the rights and freedoms of other persons.'

The analysis of conflicting rights postulated by section 86(1) calls for an essentially unitary approach.

The question whether a given right is being exercised reasonably is inextricably intertwined with the question whether it is being exercised with due regard for the rights and freedoms of others. What is required is the balancing of actually or potentially antagonistic rights, having regard to the nature of those rights, the manner in and the extent to which they impinge upon one another, and the circumstances in which they have been or are to be exercised.”

In casu, on admission of the minor, the applicant agreed to abide by the Regulations of the school - including the Code of Conduct.

The first respondent, as party to that contract, expected the applicant to comply.

The school, as a private educational institution, has a right to the observance of its institutional objectives and ethos. As long as those objectives and ethos do not discriminate on any ground stated in the Constitution, the first respondent is justified in insisting on the observance of its Regulations.

The principle of mutual respect and tolerance requires that the applicant accommodate the institutional rights and interests of the school in pursuing its perceived objectives, so long as those objectives are not pursued unreasonably, and, equally importantly, so long as they do not radically undermine the religious beliefs and convictions of any of its pupils.

To expect the school to forego its objectives and ethos to accommodate those of its pupils would lead to some form of loss of identity as espoused from the institutions objectives and ethos.

One can imagine a situation where pupils with varying antagonistic or conflicting religious beliefs each wanting to practice their beliefs at the expense of the institutional objectives and ethos. This would make a mockery of the contract the parents of the pupils would have entered to abide by the school Regulations in order to maintain the private school's objectives and ethos.

I am of the view, that, as long as those Regulations do not contravene Constitutional provisions, parties must respect the sanctity of their contract.

Whilst being cognisant of the importance of education and the fact that the minor in question is supposed to enrol for his sixth form, it is my view, that, the predicament he finds himself in could have been avoided by seeking a school whose Regulations permitted or had no issue with the growing of facial hair.

In light of the above, the issue of the nature of relief sought would not make any difference.

Even if the application had been for a declaration against the provisions in the Code of Conduct, that would not have succeeded as I am of the view, that, it is for the pupil to conform to school Regulations and not school Regulations to conform to individual pupils beliefs and standards no matter how dearly one holds to such beliefs.

The respondent asked for costs on the higher scale.

The issue for determination involved the rights of a minor. It is the minor who has been excluded from school because he has grown a beard which he wishes to grow as he is studying towards being an Imam.

I do not perceive any mala fide to warrant costs on a higher scale.

The school had, on past occasions, granted some pupils exemption, so, the applicant may have thought it reasonable to insist on such as well. In any case, as the case involved a minor child's rights even an award of costs may not be justified.

The need to pronounce on the minor's rights in this regard was necessary and this should act as a guide to parents and guardians alike to enrol children at institutions that accord with their religious beliefs. Where this is not feasible, then, obtain written exemption from certain rules or regulations at the time of enrolment as part of the contract.

Accordingly, the application be and is hereby dismissed with no order as to costs.

CC04-16 : SISTER BERRY (NEE NCUBE) and JESSE AARON BERRY vs THE CHIEF IMMIGRATION OFFICER and THE MINISTER OF HOME AFFAIRS
Ruled By: CHIDYAUSIKU CJ, MALABA DCJ, ZIYAMBI JCC, GWAUNZA JCC, GOWORA JCC, HLATSHWAYO JCC, PATEL JCC, GUVAVA JCC and MAVANGIRA AJCC

This is an application in terms of subsections 85(1)(a) and 85(1)(b) of the Constitution of Zimbabwe Amendment (No.20/2013) (“the Constitution”). The first applicant is acting in both her own interest and that of her husband who is the second applicant.

In their heads of argument, the applicants submit that they have abandoned paragraphs 2, 3 and 4 of the relief originally sought in their draft order. They indicate that the application is now 'fundamentally focused' on an infringement of the first applicant's constitutional right to freedom of movement, which is protected under section 66 of the Constitution.

The applicants accordingly seek the following relief:

1. A declaratur to the effect that the first applicant's fundamental right to freedom of movement and residence, guaranteed under the Constitution, has been violated by virtue of the respondents refusal to grant the second applicant entry into and residence in Zimbabwe; and

2. An order compelling the respondents to:

(i) Permit the second applicant entry into Zimbabwe; and

(ii) Grant the second applicant a 'spousal' residence permit.

The background to the matter is as follows:

The first applicant is a Zimbabwean citizen by birth whereas the second applicant holds the citizenship of the United States of America. The latter, sometime in August 2011, entered into Zimbabwe without any impediments. He was issued with a temporary employment permit for the period of 28 September 2012 to 27 July 2013. The application was made on his behalf by a religious group called Cornerstone Fellowship International. During the second applicant's stay in Zimbabwe, he met and fell in love with the first applicant. After the expiry of his employment permit, the second applicant returned to his home country for a short period. He then returned to Zimbabwe on a holiday visa to spend time with the first applicant.

During this period, the two applicants solemnized their marriage in terms of the Marriage Act [Chapter 5:11] and made a decision to settle, and start their own family, in Zimbabwe.

This decision prompted the second applicant to take the necessary legal steps to attain the status of a lawful resident of Zimbabwe. He applied for a residence permit on the basis of his marriage to a Zimbabwean citizen. He was granted a thirty day extension on his holiday visa whilst his application for a residence permit was being considered.

On or about 2 June 2014, the second applicant was invited for a meeting with immigration officers under the control of the respondents. He was told to leave the country as he was deemed to be a “prohibited” person in terms of section 14(1)(e)(i) of the Immigration Act [Chapter 4:02] (“the Act”). He was then given two options, that is, to leave the country immediately or to be deported. This was pursuant to section 17 of the Immigration Act.

The second applicant chose the former option, and, on 2 June 2014, left for South Africa together with his wife.

Before leaving Zimbabwe, the applicants instructed their legal practitioners to appeal against the Prohibition Notice, which appeal was duly noted in the Magistrates Court, in terms of section 8 of the Immigration Act.

The Court, on 20 June 2014, ruled in favour of the second applicant and set aside the Prohibition Notice in question. The applicants were informed by their legal practitioners of this development, and, on 30 June 2014, left South Africa for Zimbabwe, believing that they would finally settle down in Zimbabwe.

Their joy was however short lived as the second applicant was denied entrance into Zimbabwe at the Beitbridge Border Post by the first respondent's officers, on the basis that he was still a prohibited person - despite the setting aside of the Prohibition Order.

The first applicant proceeded with the journey without her husband who was left in the hands of the first respondent's officers. She proceeded, on 18 July 2014, to file an application before this Court, challenging the respondent's decision to declare the second applicant a prohibited person, and denying him entry into this country.

Before the matter was heard, on 18 February 2015, the first applicant successfully applied for interim relief, in chambers before the Chief Justice, allowing the second applicant entry into the country pending the determination of this application.

I consider it pertinent, at this juncture, to address the parties submissions regarding the effect of the order of the Magistrates Court setting aside the first Prohibition Notice issued against the second applicant.

As already stated, the second applicant chose the option to leave the country, and did so, on the basis of the Prohibition Notice dated 2 June 2014.

A look at this Notice, which cites two provisions falling under section 14 of the Immigration Act, shows that the first respondent's officers were required to delete whichever of the two provisions did not apply in any particular case.

This was not done.

While clearly the second provision cited would not have been applicable to the circumstances of the second applicant, the first provision is not fully legible and seems to refer to a paragraph (i.e. paragraph (1) of subsection (1) of section 4 of the Immigration Act) that simply does not exist as part of the various paragraphs and subsections of section 14 of the Immigration Act.

The applicants challenged the Notice primarily on this point, stating as follows in their grounds of appeal in the lower court:

“The order of prohibition is invalid at law as it is not supported by the cited provisions of the Immigration Act (Chapter 4:02).”

The applicants accordingly sought an order setting aside the Prohibition Notice.

This ground of appeal had merit in view of section 8(4)(a) of the Immigration Act which reads as follows:

“When —

(a) Leave to enter Zimbabwe is refused or any person is informed, for the first time, that he is a prohibited person in terms of this Act, notice in writing specifying the provision of this Act under which leave to enter Zimbabwe is refused or the person is a prohibited person, as the case may be, shall be given to the person concerned:

Provided that…,.”…,.

The Magistrate's full reasons for the order he made, setting aside the impugned Notice, were not part of the record before this Court. Only the actual order of the Court has been provided, and it simply reads:

“The immigration appeal is upheld and the prohibition be and is hereby set aside.”

Despite the lack of reasons for this order, its correctness cannot be doubted. This is because the Notice in question, as already mentioned, did not correctly cite the section of the Immigration Act by virtue of which the second applicant was a prohibited person. The Notice, therefore, did not comply with section 8(4)(a) of the Immigration Act.

As indicated above, the applicants understood the order setting aside the Prohibition Notice to mean that there were no longer any legal impediments to the second applicant's return to Zimbabwe.

The respondents took a different view of the matter.

They contend, that, the Magistrate's Court's decision was based on a technicality rather than on the merits. This, in their view, meant that the lower Court did not make a determination to the effect that the second applicant was not a prohibited person, nor that such status be set aside.

The respondents attached to their opposing papers another Prohibition Notice dated the same day, 30 June 2014, declaring that the second applicant was a prohibited person in terms of section 14(1)(e)(i) of the Immigration Act.

This notice fully complied with section 8(4)(a) of the Immigration Act.

I find the respondents submissions, on the import of the Magistrates Court's order setting aside the Prohibition Order, to have merit.

The applicants challenged the Prohibition Notice, of 2 June 2014, largely on technical grounds. There can be no disputing the fact that the Notice in question was fatally defective, that is, a nullity. However, it appears that the applicants laboured under the misconception, that, the setting aside of the Prohibition Notice had the effect of opening the way to the second applicant to re-enter Zimbabwe.

Section 8(4(a) of the Immigration Act makes it clear, that, the Notice does not confer the status of prohibited person on the recipient. All that it does is formerly inform the person of the section of the Immigration Act under which he was a prohibited person, that is, a person not eligible to enter Zimbabwe.

This is to be contrasted with the situation referred to in section 14(2) of the Immigration Act which reads as follows;

“A person shall be declared to be a prohibited person in terms of subparagraph (iii) of paragraph (e) of subsection (1) by notice in writing served on him, or, if his whereabouts are unknown or he has departed from Zimbabwe, by notice in the Gazette.”

The second applicant's prohibited person status derived from the law, that is, section 14(1)(e)(i) of the Immigration Act, which I have cited below (sic).

The respondents are therefore correct in the assertion, that, the second applicant maintained the status of prohibited person despite the setting aside of the Prohibition Notice. That being the case, the respondents were properly within their rights to issue another Notice clearly setting out the basis for such a status.

The applicants, albeit challenging it in casu, did not appeal to the Magistrates Court (this would be in terms of section 21(1) of the Immigration Act) against the allegation in the second Notice, that he was a prohibited person.

As indicated above, the second applicant has however been allowed to re-enter and stay in Zimbabwe pending the determination of this matter.

In my view, there are basically three issues before this Court, namely:

(i) Whether or not the second applicant's status, of being a prohibited person, was negated by his subsequent marriage to the first applicant;

(ii) Whether or not there has been any infringement of the applicants fundamental right to freedom of movement as alleged; and

(iii) Whether the applicants are entitled to the relief sought....,.

(iii) Whether the applicants are entitled to the relief sought

I turn now to deal with the last issue for determination which is whether or not the applicants are entitled to the relief sought. In addition to the declaratur referred to, which I have determined has been improperly sought before this Court, the applicants also seek an order compelling the respondents to allow the second applicant entry into Zimbabwe, and, in addition, grant him a spousal visa.

The order relating to the granting of leave to enter Zimbabwe would be a consequence of the declaratur that the applicants have unsuccessfully sought. It therefore suffers the same fate.

I should mention in this connection, that, the second applicant seems to have eschewed the procedure laid down in the Immigration Act and Regulations (Statutory Instrument 195/1998, SI195 of 1998) for challenging, through an appeal to the Magistrates Court, the issuance of the second Notice that declared him to be a prohibited person.

The immigration Regulations set out in detail the procedures for such an appeal, including the referral by the magistrate concerned, of any point of law, to the Supreme Court for determination: see sections 55-59.

Instead, the applicants chose to mount this constitutional challenge, which I have determined to be ill-conceived.

As for a spousal residence permit, the papers before the court allude to the fact, that, the second applicant properly filed an application before the Chief Immigration Officer, for a residence permit as a spouse of a Zimbabwean citizen. This would have been in terms of sections 15 and 16(1)(a) of S.I.195 of1998.

The respondents submit, that, the application is still pending determination although it has been 'stalled' by the second applicant's refusal to 'observe due process.'

There is nothing on record to suggest that the applicants dispute this assertion.

The provisions of the Immigration Act and Regulations make it clear, that, the process of applying for and being issued with a spousal residence permit is involved and requires the consideration, by the Chief Immigration officer, of numerous issues.

The applicants in effect seek an order that would result in this Court interrupting a statutory process commenced by the appropriate immigration authorities to receive and determine an application for a residence permit by an alien spouse. Such order would, in addition, compel the respondents to grant the permit sought without fully assessing the second applicant's suitability for it, based on the requirements mandated by the Immigration Act.

The impropriety of such an order hardly needs any emphasis. Due process needs to, and must be, followed.

Appealed
HH510-20 : FRANCIS BERE vs JUDICIAL SERVICE COMMISSION and SIMBI MUBAKO and REKAYI MAPHOSA and TAKAWIRA NZOMBE and VIRGINIA MABHIZA and PRESIDENT OF ZIMBABWE and MINISTER OF JUSTICE, LEGAL & PARLIAMENTARY AFFAIRS and ATTORNEY GENERAL OF ZIMBABWE
Ruled By: CHIKOWERO J

This is an application for review of the Judicial Service Commission's decision to advise the President that the question of removing the applicant from the office of a judge ought to be investigated.

The applicant is a judge of the Supreme Court and the Constitutional Court of the Republic of Zimbabwe.

The first respondent, the Judicial Service Commission (JSC) is a corporate body established in terms of section 189 of the Constitution of Zimbabwe Amendment (No.20) Act 2013.

The second, third and fourth respondents are the members of the tribunal appointed by the President to enquire into the question of the removal of the Judge from office.

The fifth respondent is the Permanent Secretary of the Ministry of Justice Legal and Parliamentary Affairs, the Co-ordinator of the Special Anti-Corruption Unit in the Office of the President as well as the Secretary of the Tribunal.

The sixth, seventh and eighth respondents are the President of the Republic of Zimbabwe (the President), the Minister of Justice, Legal and Parliamentary Affairs (the Minister) and the Attorney General of Zimbabwe (the AG) respectively.

As an administrative authority, the Judicial Service Commission (JSC) has a responsibility to take administrative action which may affect the rights, interests or legitimate expectations of any person. In so doing, section 3(1)(a) of the Administrative Justice Act [Chapter 10:23] (AJA) enjoins the JSC to act lawfully, reasonably, and in a fair manner.

On 13 December 2019, the Judicial Service Commission (JSC) held an extraordinary meeting. It resolved at that meeting to advise the President that the question of removing the applicant from the office of a judge ought to be investigated. The JSC addressed a letter to the President tendering the advice.

As his obligation, in terms of section 187(3) of the Constitution, the President appointed a 3 member Tribunal to enquire into the matter. As already indicated, the members are the second to fourth respondents, with the fifth respondent as its Secretary.

In the Zimbabwean Government Gazette Extraordinary dated 17 March 2020, the President made Proclamation 1 of 2020 which was published as Statutory Instrument 70 of 2020, SI70 of 2020 wherein, among other things, he established the Tribunal, appointed its members, Secretary, and set out the Tribunal's terms of reference.

The applicant is aggrieved by the Judicial Service Commission's decision to advise the President that the question of removing the former from the office of a judge ought to be investigated.

Acting in terms of section 4(1) of the Administrative Justice Act, the applicant has applied to this court, on review, to set aside the Judicial Service Commission's decision on the basis that it failed to act lawfully, reasonably, and fairly in coming up with the decision to advise the President. In other words, the applicant takes issue with the procedure adopted by the Judicial Service Commission (JSC) in coming up with that decision.

He also seeks certain consequential relief.

I pause to set out the Tribunal's terms of reference. They are:

“(i) To investigate into the matter of the removal from office of Honourable Justice Francis Bere JA;

(ii) To investigate into the matter of Honourable Justice Bere's conduct, whether it can be deemed to have been tantamount to gross misconduct;

(iii) To investigate whether the Honourable Judge conducted himself or presided over matters where there was conflict of interest;

(iv) To investigate any other matter which the Tribunal may deem appropriate and relevant to the enquiry;

(v) To consider all information submitted by the Judicial Service Commission and any other relevant information in order to arrive at an appropriate recommendation to the President;

(vi) To recommend to the President whether or not the Honourable Judge should be removed from office in terms of section 187 of the Constitution; and

(vii) To report to the President, in writing, the result of the inquiry within a period of five (5) months from the date of swearing in of the members.”

The grounds on which the application for review is based are:

“1. The absence of any of the three jurisdictional grounds for the removal of Judge prescribed under section 187(1) of the Constitution and the incontrovertible facts and circumstances upon which this would be founded;

2. The absence of specificity and lack of particularity of the exact nature of the conduct, the identity of a complainant, and the prejudice or quid pro quo to confirm the nature and gravity of the case;

3. An objection to the appointment of the Permanent Secretary, as secretary of the Tribunal, on the grounds and basis that she was an actor in the process leading to the applicant's suspension and the establishment of the Tribunal, something which gives credence to the applicant's contention that the decision to refer his matter to the President was completely unreasonable;

4. There is no prima facie material that has been alluded to in the Proclamation that would form the basis for a referral of a matter involving a senior Judge;

5. Gross irregularity in that the JSC, having procedurally decided to take a second bite at the cherry, failed to afford applicant the right to be heard in relation to the subsequent reply from Mr Ndudzo, at or before its purported meeting of 13 December 2019 in violation of the audi alteram partem rule;

6. The JSC, having reached a decision on the subject matter from the same basis and circumstances on 21 November 2019, and having communicated this to the applicant, could not revisit the matter subsequently as it had become functus officio;

7. The JSC lacked a quorum to sit on 13 December 2019 and to reverse its earlier decision;

8. To the extent that the allegations are understood and based on the documents attached to the founding affidavit, the allegations made are petty and do not meet the elevated criteria of gross misconduct or gross incompetency.”

For the purposes of this application, the issue of the investigation on the question of the removal of the applicant from the office of a Judge arose from a phone call made to Mr Ndudzo, who is a legal practitioner, as well as a complaint raised against him by Mr Moxon. The latter related to the applicant presiding over a matter between Meikles Limited and Widefree Investments (Pty) Ltd trading as Core Solutions.

Since I am required to determine this application on procedural grounds, it is not necessary for me to delve into the substance and details of the phone call and Mr Moxon's complaint.

All the respondents opposed the application....,.

THE MERITS

NO QUORUM AT THE JUDICIAL SERVICE COMMISSION (JSC) MEETING OF 13 DECEMBER 2019

It was at this meeting of the Judicial Service Commission (JSC) that the decision was taken to advise the President that the question of the removal of the applicant from the office of a judge ought to be investigated.

The parties are agreed that the membership of the Judicial Service Commission (JSC) is 13, but, there was a single vacancy at the material time. The parties are agreed that the Constitution allows the JSC to function all the same provided it has a quorum. Its quorum is 7, being half of the membership of the JSC.

The applicant made a bare allegation that only 6 members were present at the 13 December 2019 meeting.

He does not mention the names of the members who were present and of those who were not in attendance. He does not attach any supporting affidavits from either those present or those whom he alleges were absent. He does not attach a copy of the minutes of the meeting of 13 December 2019.

It is trite that an application stands or falls on the averments made in the founding affidavit: see Muchini v Elizabeth Mary Adams & Others 2013 (1) ZLR 67 (S).

It also is trite that he who alleges must prove: see ZUPCO v Parkhorse Services (Pvt) Ltd SC13-17; Circle Tracking v Mahachi SC04-17.

Counsel for the applicant conceded, that, all that the applicant has done is to allege that there was no quorum.

He argues, that, on the basis of the importance of the matter that bare allegation must shift the onus to the Judicial Service Commission (JSC) to prove that there was a quorum.

It is clear that the applicant relies on rumours for his allegation that there was no quorum.

Matters are decided on the law, facts, and the evidence - and not rumours.

The Judicial Service Commission (JSC) says there was a quorum. It is not the applicant. It suffices that it challenges the applicant to prove its allegation. The JSC has no obligation to assist the applicant to prove the latter's allegation.

I find that the applicant has failed to substantiate its allegation that there was no quorum at the meeting of 13 December 2019.

THE JUDICIAL SERVICE COMMISSION (JSC) WAS FUNCTUS OFFICIO AND COULD NOT REVERSE ITS 21 NOVEMBER 2019 DECISION

The applicant claims that the Judicial Service Commission (JSC) held an ordinary meeting on 21 November 2019 where all the Commissioners concluded that there was nothing untoward about his conduct.

He alleges that he received a phone call from the Deputy Acting Secretary of the Judicial Service Commission (JSC), Mr Stembinkosi Msipa, breaking the good news.

This is denied by the Judicial Service Commission (JSC) which avers that no such meeting was held and therefore that the decision alleged was never made.

The applicant neither produced the minutes of the alleged meeting of 21 November 2019 nor filed a supporting affidavit by the Deputy Acting Secretary.

I find that this allegation, too, was not substantiated. There was therefore nothing for the Judicial Service Commission (JSC) to reverse on 13 December 2019.

VIOLATION OF THE AUDI ALTERAM PARTEM RULE

The applicant accepts that he received, through the Judicial Service Commission (JSC), correspondence from Mr Moxon, Mr Ndudzo, and the Permanent Secretary. He admits that he responded to these letters.

I agree that his responses are detailed. His last response, of 20 August 2019, relating to Mr Ndudzo's letter, runs into 5 pages.

Thereafter, the Judicial Service Commission (JSC) asked Mr Ndudzo to comment on the applicant's reply.

The alleged non-observance of the right to be heard relates to his not being given yet another opportunity to comment on Mr Ndudzo's comment before the Judicial Service Commission (JSC) met on 13 December 2019.

My view is that Mr Ndudzo's comment, post 20 August 2019, was not another stage in the preliminary investigation by the Judicial Service Commission (JSC) but a step within that stage. It seems to me, that, the exchange of correspondence, through the JSC, could not continue ad infinitum. It had to end somewhere to pave way for the JSC to make a decision.

Despite complaining that the contents of Mr Ndudzo's last letter were so material that he ought to have been given an opportunity to respond thereto, the applicant says, in the same breath, that, whatever was referred to the President, based on the Ndudzo matter, was petty.

I therefore find that there was no breach of the audi alteram partem rule because the applicant is effectively saying Mr Ndudzo's last letter to the Judicial Service Commission (JSC) changed nothing.

With reference to the Moxon complaint, the applicant accepted that the matter had not been concluded by the advice to the Chief Justice from the Judicial Ethics Advisory Committee and the Chief Justice's correspondence to Mr Moxon and the applicant communicating that advice.

I say so because the applicant wrote to the Chief Justice stating, that, the former could not stand in Mr Moxon's way should Mr Moxon want to pursue the matter further. Indeed, Mr Moxon did so and the matter ended up before the Judicial Service Commission (JSC) at its meeting of 13 December 2019 where a decision was taken to advise the President.

ABSENCE OF JURISDICTIONAL FACTS TO GROUND THE JUDICIAL SERVICE COMMISSION'S DECISION TO ADVISE THE PRESIDENT

An exhaustive analysis of this ground is tantamount to this court substituting its views for the prima facie views of the Judicial Service Commission (JSC) already acted upon on 13 December 2019.

I do not think that it is proper for this court to do so.

I observe only, that, on the face of it, the correspondence put before me reveals that the Judicial Service Commission (JSC) must have concluded that the applicant's conduct needed to be investigated by a tribunal. I am not sitting as an Appeal Court to determine the correctness of the JSC's decision but on review to decide whether any of the jurisdictional grounds for removal of a Judge from office is disclosed on the papers put before me and on which the decision to advise the President was made.

Section 187(1)(c) of the Constitution provides that gross misconduct is one such jurisdictional ground.

Whether there was gross misconduct is not for me to determine. The Tribunal's terms of reference cover that aspect.

By the same token, this court cannot make pronouncements on the merits or otherwise of an investigation which the tribunal is constitutionally empowered to do. The court is not the Tribunal.

I do not think it necessary for the applicant to effectively be a judge in his own cause by submitting, before this court, that the basis upon which the Judicial Service Commission (JSC) advised the President was petty.

That goes to the substance of that which the tribunal is to investigate, make findings, and recommend on.

I have already found that it would be remiss of me to rule on the correctness of the Judicial Service Commission's decision to advise the President.

Given the importance of this matter, I may have hesitated to award costs against the applicant had he not instituted this application, but, instead, prosecuted the urgent chamber application which was removed from the roll, as a court application. The applicant has caused the first respondent to incur unnecessary costs by duplicating proceedings.

In the circumstances, I have no reason to depart from the general rule that success carries costs.

ORDER

In the result, the following order shall issue:

1. The application be and is dismissed.

2. The applicant shall pay the first respondent's costs.

View Appeal
SC01-22 : FRANCIS BERE vs JUDICIAL SERVICE COMMISSION and SIMBI MUBAKO and REKAYI MAPHOSA and TAKAWIRA NZOMBE and VIRGINIA MABHIZA and PRESIDENT OF ZIMBABWE and MINISTER OF JUSTICE, LEGAL AND PARLIAMENTARY AFFAIRS
Ruled By: GUVAVA JA, UCHENA JA and KUDYA AJA

This is an appeal against the whole judgment of the High Court (court a quo). The suspension from office of the appellant led to a flurry of court applications in the court a quo. This is just one of them in which the court a quo dismissed the appellant's application.

The application was made in terms of section 4 of the Administrative Justice Act [Chapter 10:28] ('the Act') on the basis that the respondents had failed to comply with the provisions of section 3(1)(a) of the Administration Justice Act.

BACKGROUND FACTS

The appellant is a former judge of the Supreme Court of Zimbabwe having been dismissed from office by the sixth respondent (the President of Zimbabwe).

The first respondent (Judicial Service Commission) is a body corporate established in terms of section 189 of the Constitution of Zimbabwe Amendment (No.20) Act 2013 ('the Constitution').

The second respondent (Simbi Mubako) (being the Chairperson), third and fourth respondents (Rekayi Maphosa and Takawira Nzombe) (being members), constituted a Tribunal appointed by the President of the Republic of Zimbabwe in terms of section 187(3) of the Constitution. The Tribunal was set up to inquire into the removal of the appellant from the office of a judge.

The fifth respondent (Virginia Mabhiza) was the Secretary of the Tribunal and is the Permanent Secretary of the Ministry of Justice, Legal and Parliamentary Affairs. She is also the coordinator of the Special Anti-Corruption Unit in the Office of the President.

The sixth respondent is the President of Zimbabwe (the President) and the seventh respondent is the Minister of Justice, Legal and Parliamentary Affairs.

The Tribunal has since completed its mandate and is no longer in existence.

On 17 March 2020, the President, acting in terms of section 187(4) of the Constitution of Zimbabwe 2013 issued, in a Zimbabwean Government Gazette Extraordinary Proclamation 1 of 2020 Statutory Instrument 70 of 2020, in which, amongst other things, he established a Tribunal to investigate the question of removing the appellant from the office of a judge. The Tribunal's terms of reference were set out as follows:

“(i) To investigate into the matter of the removal from office of Honourable Justice Francis Bere JA;

(ii) To investigate into the matter of Honourable Justice Bere's conduct, whether it can be deemed to have been tantamount to gross misconduct;

(iii) To investigate whether the Honourable Judge conducted himself or presided over matters where there was conflict of interest;

(iv) To investigate any other matter which the Tribunal may deem appropriate and relevant to the enquiry;

(v) To consider all information submitted by the Judicial Service Commission and any other relevant information in order to arrive at an appropriate recommendation to the President;

(vi) To recommend to the President whether or not the Honourable Judge should be removed from office in terms of section 187 of the Constitution; and

(vii) To report to the President, in writing, the result of the inquiry within a period of five (5) months from the date of swearing in of the members.”

On 13 May 2020, following the publication of Proclamation 1 of 2020, SI70 of 2020 the appellant made an application in terms of section 4 of the Administrative Justice Act (the Act) before the court a quo.

The application was made on the allegation, that, the first respondent failed to comply with section 3(1)(a) of the Administrative Justice Act in that it failed to “act lawfully, reasonably, and in a fair manner” in advising the President to set up a Tribunal to investigate the appellant.

In making the application, it was the appellant's complaint, that, by letter dated 3 March 2020, he was suspended from the office of a judge pending the determination of the question of his removal from office by a three member Tribunal appointed by the President.

The appellant further averred, that, the suspension was preceded by a letter addressed to him by the Acting Secretary of the first respondent dated 28 February 2020. In the letter, the appellant was informed, that, at a meeting held on 13 December 2019, the first respondent had resolved to advise the President to consider the appointment of a tribunal to conduct and further investigate him for alleged misconduct.

The appellant raised five grounds, asserting that the first respondent failed to comply with section 3(1)(a) of the Administrative Justice Act:

(i) Firstly, it was his averment that the first respondent had no jurisdictional grounds for referring the matter to the President.

(ii) Secondly, the appellant averred that there was gross irregularity in the referral by the first respondent as it failed to accord him the right to be heard.

(iii) Thirdly, he asserted, that, at the time the first respondent made its decision to refer the matter to the President it had become functus officio as it had previously made a determination on the matter exonerating him of any wrongdoing.

(iv) Fourthly, that the first respondent, in making its decision, was not properly constituted as it lacked a proper quorum.

(v) Finally, that the fifth respondent was biased as she was the person who referred the complaint which was made by Mr Moxon (Moxon) to the first respondent. It was thus argued, that, as a secretary to the Tribunal, she was a judge in her own cause.

The second, third, fourth and seventh respondents (Simbi Mubako, Rekayi Maphosa, Takawira Nzombe and Minister of Justice, Legal and Parliamentary Affairs) submitted that they had no interest in the outcome of the application and would abide by the court's decision.

The President maintained that he was simply fulfilling his constitutional obligation when he appointed the Tribunal upon the recommendation of the first respondent.

The fifth respondent (Virginia Mabhiza) submitted that she was acting in her official capacity as a Permanent Secretary, Co-ordinator of the Special Anti-Corruption Unit in the office of the President and as Secretary of the Tribunal set up by the President. She stated that she received correspondence from Moxon wherein he complained about the manner in which the appellant had handled his case which was before him. She thereafter referred the complaint against the appellant to the first respondent.

She further stated, that, before receiving the complaint from Moxon, she had been made aware of allegations of improper conduct against the appellant by Mr Ndudzo, a legal practitioner from Mutamangira and Associates, and she duly included the two incidents in her referral letter to the first respondent and the Chief Justice of Zimbabwe.

In denying that she was conflicted, the fifth respondent maintained that she had no personal interest in the matter and was only carrying out her duties.

At the commencement of the proceedings, the first respondent (Judicial Service Commission) raised two preliminary points:

(i) It was submitted on behalf of the first respondent that the court a quo had no jurisdiction to review the constitutional powers vested in the President if he decides to appoint a Tribunal in terms of section 187 of the Constitution.

(ii) Secondly, that the matter was lis alibi pendens as a similar application under HC2162/20 had already been made by the appellant.

On the merits of the matter, the first respondent averred that it acted lawfully, reasonably, and in a fair manner in respect of the advice it gave to the sixth respondent (the President) in terms of section 187(3) of the Constitution.

The first respondent maintained, that, the appellant was availed an opportunity to respond to the allegations made against him and he duly did so in writing.

Further, that the decision to refer the appellant's matter to the President was made by a properly constituted Board of its Commissioners. The first respondent also averred that the onus to prove the purported allegation of an improperly constituted quorum lay with the appellant.

The appellant, in turn, raised a preliminary point to the effect, that, the deponent of the first respondent's opposing affidavit, Mr Chikwana (the first respondent's Acting Secretary), lacked authority to act on behalf of the first respondent.

The appellant averred, that, on the authority of the case of Francis Bere v Judicial Service Commission and Ors HH269-20 the court had already found, that, since it is the first respondent which has the constitutional duty to advise the President on the question of removal of a judge from office it could not delegate the function of defending that decision in a court of law to its Acting Secretary.

DETERMINATION BY THE COURT A QUO

The court a quo, in a well-reasoned judgment, dismissed the appellant's preliminary point. The court found, that, in light of the first respondent's Board resolution authorizing Mr Chikwana to do so, he could properly act on its behalf.

The court also dismissed the preliminary point taken by the first respondent that the matter before it was lis alibi pendens. The court reasoned, that, lis alibi pendens was not an absolute bar to a determination of the matter. The court thus dismissed the point as it did not dispose of the matter.

The court also declined to deal with the part that the court had no powers to review the Constitutional powers vested in the President as it reasoned that the issue was on the merits and was not a preliminary part.

On the merits of the matter, the court a quo held, that, on the point that there was no quorum at the first respondent's meeting of 13 December 2019, the appellant had made bare allegations without supporting affidavits of those present at the meeting and without attaching minutes of the meeting to show that there was no quorum. The court a quo further held, that, the first respondent had no obligation to assist the appellant in proving his allegation.

With regards to the issue of whether the first respondent was functus officio and could not reverse its decision of 21 November 2019, wherein it had purportedly found the appellant not guilty of misconduct, the court a quo found, that, the appellant failed to substantiate his allegations. It found that he did not support his averment that he had received a phone call from the first respondent's Deputy Acting Secretary informing him that a decision had been taken to exonerate him. The court noted that the appellant ought to have either produced minutes of the alleged meeting of 21 November 2019 or filed a supporting affidavit from the Deputy Acting Secretary.

The court a quo also found, on the issue of the alleged violation of the appellant's audi alteram partem rule that the appellant was given an opportunity to respond to the allegations made against him. The court noted that the exchange of correspondences between the first respondent and the appellant was sufficient. Thus, the court found that the appellant's right to be heard had not been violated.

Concerning the absence of jurisdictional facts to ground the first respondent's decision to advise the President, the court noted, that, it was not sitting as an Appeal Court to determine the correctness of the first respondent's decision to refer the appellant's matter to the President.

Rather, it was being called upon to decide whether any of the jurisdictional grounds for removal of a judge were disclosed in the first respondent's papers.

The court noted, that, section 187(1)(c) of the Constitution provides for gross misconduct as one of the jurisdictional grounds for the removal of a judge from office and that is what was averred in the papers to the President.

The court, however, concluded that whether or not there was gross misconduct on the part of the appellant was not an issue to be determined by it as the terms of the Tribunal, set up by the President, covered that aspect. It was therefore left for that Tribunal to determine the guilt or otherwise of the appellant.

In accordance with the above findings, the court a quo dismissed the application with an order that the appellant pays the first respondent's costs.

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

“1. The court a quo erred in law in not upholding the appellant's point in limine, namely, that, that (sic) the 1st Respondent was not properly before the court as the deponent to its opposing affidavit was prohibited by the Constitution of Zimbabwe from representing the 1st Respondent in an application brought by a judge pursuant to section 187(3) of the aforesaid Constitution.

2. The court a quo erred in law in not finding that the 1st Respondent had no quorum at its meeting of 13th December 2019, and, consequently, erred in not finding that the 1st Respondent's advice to the 6th Respondent, pursuant to section 187(3) of the Constitution, was a nullity.

3. The court a quo erred in law in not finding, that, at the meeting of 13th December 2019, the 1st Respondent was already functus officio in respect of the complaints raised against the appellant and consequently erred in not finding that the 1st Respondent's advice to the 6th Respondent, pursuant to section 187(3) of the Constitution, was a nullity.

4. The court a quo erred in law in not finding that there had been a breach of the audi alteram partem rule in respect of the 1st Respondent's handling of complaints against the appellant at its meeting on 13th December 2019 and consequently erred in not finding that the 1st Respondent's advice to the 6th Respondent, pursuant to section 187(3) of the Constitution, was a nullity.

5. The court a quo erred in law in finding that the court had no jurisdiction to determine the existence or otherwise of the jurisdictional facts under section 187(1) of the Constitution and grounding the 1st Respondent's advice to the 6th Respondent in respect of complaints against the appellant pursuant to section 187(3) of the Constitution.”

SUBMISSIONS BEFORE THIS COURT

At the hearing, the first respondent raised a point in limine to the effect that the matter before the court had become moot.

The point was taken on the basis that the appellant had already been removed from the office of a judge following the findings of gross misconduct by the Tribunal appointed by the President.

Counsel for the first respondent…, submitted that the appeal had become moot arising from the fact that the appellant's appeal was predicated on his suspension from office. He argued that this position had since been overtaken by events.

He further submitted, that, the relief sought by the appellant, intending to set aside the decision by the first respondent to refer the complaint against the appellant to the President, under section 187(3) of the Constitution, would result in a brutum fulmen.

Counsel further argued, that, in light of the Proclamation removing the appellant from the office of a judge, the work of the Tribunal had been completed, the dismissal of the appellant was final, and, as such, the appeal was devoid of merit.

In opposition, counsel for the appellant…, argued that the matter was not moot as there was a live controversy which required the Court's determination.

Counsel submitted that the live issue related to whether or not the decision of the first respondent to advise the President, in terms of section 187(3) of the Constitution, was valid.

It was counsel's submission that this was a live issue which had to be determined by the court as it affected whether or not the appellant was lawfully removed from office.

Counsel further argued, that, in any event, even if the matter is moot, this Court has a discretion to hear the matter.

Counsel thus prayed for the dismissal of the preliminary point.

On the merits of the matter, counsel for the appellant submitted, that, the Acting Secretary for the first respondent had no authority to depose to the opposing affidavit. Counsel argued, that, the court in HH269-20 had already determined that the Acting Secretary could not so act. The court a quo could not make a contrary finding that Mr Chikwana had authority to act on behalf of the first respondent.

Counsel also submitted, that, the quorum recommending that the complaint against the appellant be referred to the President was not properly constituted.

Counsel further submitted, that, the appellant was not afforded the right to be heard in terms of the audi alteram partem rule as he was not given an opportunity to respond to the letter written by Mr Ndudzo.

Counsel argued, that, the first respondent lacked the jurisdiction to refer the matter to the President without first conducting an internal hearing of its own.

Lastly, it was counsel's argument that each party should bear its own costs owing to the reason that the issues raised in the appeal were fundamentally important.

Per contra, counsel for the first respondent argued, that, the court a quo did not err in finding that the first respondent's Acting Secretary could depose to the opposing affidavit as he acted merely as an agent of the first respondent and he could swear positively to the facts as he sat in its meetings.

Counsel further argued, that, the appellant had been afforded his right to be heard as he had been given an opportunity to reply, in writing, to the complaints levelled against him as well as an opportunity to be heard by the tribunal which right he opted not to exercise by walking out of the hearing.

Counsel submitted, that, in terms of section 187(3) of the Constitution, the first respondent was within its rights and had an obligation to refer the matter to the President.

He further argued, that, the onus rested squarely on the appellant to prove his assertion that the first respondent's quorum was not properly constituted.

Counsel was not opposed to the prayer that each party bears its own costs.

Counsel for the second to seventh respondents…, submitted that none of the appellant's grounds of appeal impugned the actions of the second to seventh respondents.

Counsel submitted, that, the President was within his constitutional mandate in appointing a Tribunal to investigate the appellant's alleged acts of misconduct. Counsel thus submitted, that, the Tribunal correctly investigated the matter and made recommendations to the President. It was his argument that the President correctly acted upon those recommendations in terms of his constitutional powers....,.

DETERMINATION OF THE MERITS OF THE MATTER

The appellant's grounds of appeal raise four broad issues for determination which are as follows:

(i) Whether or not the court a quo erred in finding that the first respondent's Acting Secretary could depose to its opposing affidavit and act on its behalf.

(ii) Whether or not the appellant failed to prove that there was no quorum at the first respondent's meeting of 13 December 2019.

(iii) Whether the first respondent was functus officio as it is alleged to have reversed its decision of 21 November 2019.

(iv) Whether or not the appellant's right to be heard was violated.

I will deal with each of these issues in turn....,.

WHETHER OR NOT THERE WAS NO QUORUM AT THE FIRST RESPONDENT'S MEETING OF 13 DECEMBER 2019 AND WHETHER THE FIRST RESPONDENT WAS FUNCTUS OFFICIO AS AT THAT DATE

The facts of these two issues are interlinked so it is expedient to deal with them together.

The appellant's application for review was dismissed on the basis that he failed to prove that the first respondent did not have a proper quorum at the first respondent's meeting of 13 December 2019 and that at that meeting the first respondent had become functus officio as it had already made a decision on 21 November 2019 exonerating the appellant.

It was the appellant's argument a quo, and before this Court, that, at the meeting of 13 December 2019, where the decision to refer the appellant's matter to the President was reached, there was no quorum and thus an invalid resolution was passed.

The appellant made the allegation in his founding affidavit before the court a quo but did not produce any evidence to substantiate the allegation.

The court a quo found, that, the appellant could not make bare allegations without producing either the minutes of the meeting or a supporting affidavit from a Commissioner of the first respondent who was present or absent on that day.

A reading of the appellant's founding affidavit shows that he made the allegations based on what he termed “reliably informed” information without producing an iota of evidence to substantiate the claim.

The appellant further alleged, that, at a meeting on 21 November 2019, he was exonerated from all allegations against him and that he was informed, through a telephone call, of the news by the first respondent's Acting Deputy Secretary, Mr Msipa.

It was on this basis that the appellant argued that the first respondent was functus officio at the time it made the decision to refer his matter to the President on 13 December 2019.

It is common cause that Mr Msipa has not left the employ of the first respondent. The appellant could, and should, have approached him for a supporting affidavit in this regard.

In the event that he felt constrained to do so, he could have subpoenaed the records of the phone call that he allegedly held with Mr Msipa.

The court a quo found that the arguments by the appellant were bare, unsubstantiated allegations as there was no supporting evidence.

In any event, it seems highly unusual that the Judicial Service Commission would have relayed this information to a judge through a phone call.

The allegations against the appellant were serious.

No letter was produced by the appellant to show that the first respondent had written to him indicating that it was no longer pursuing the case against him.

In our view, it would be only after such formal notification that the appellant would be in a position to allege that the first respondent had made a prior decision and was now functus.

This Court finds no fault with the court a quo's conclusions in this respect.

It is apparent that the appellant made unsubstantiated allegations.

It is an accepted principle of our law that it is the duty of a person who makes an allegation to prove the allegation: see Mavrick Trading (Private) Limited v Double Services HH54-17; Macro Plumbers (Pvt) Ltd v Sheriff of Zimbabwe N.O. and Another HH57-15; ZUPCO Ltd v Pakhorse Services (Pvt) Ltd SC13-17.

In view of the well-grounded principles set out above, we find that the appellant's second and third grounds of appeal are devoid of merit.

WHETHER OR NOT THE APPELLANT'S RIGHT TO BE HEARD WAS VIOLATED

In his founding affidavit a quo, the appellant averred that his right to be heard was violated by the first respondent in that he was denied the opportunity to respond to the letter by Mr Ndudzo which he wrote prior to the meeting of 13 December 2019.

It was the appellant's argument, that, he was not given an opportunity to have sight of and respond to Mr Ndudzo's letter because it was submitted after he had made his own response to the allegations against him on 20 August 2019.

The appellant believes, that, by not being given the opportunity to respond to the letter, the decision of 13 December 2019 was unlawfully and unfairly made.

The record shows, that, from the moment the allegations against the appellant were made, to the day when he was suspended, there was correspondence between him and the first respondent.

The appellant was given various platforms and opportunities to respond to the two allegations made against him. Where decisions were made by the first respondent, in respect of his matter, the appellant was informed in writing.

While it is accepted, that, the appellant was not given Mr Ndudzo's letter, which was written after the appellant had made his response, it is our view that the issues had already been canvassed in previous correspondence.

It should be borne in mind, that, the audi alteram partem rule is not a rule of fixed content but varies with the circumstances of each case. What is important is that the principles of fairness have been invoked before a decision is reached.

As was stated by GUBBAY JA…, in Metsala v Chairman, Public Service Commission & Anor 1989 (3) ZLR 147 (SC)…,.:

“The audi maxim is not a rule of fixed content, but varies with the circumstances. In its fullest extent, it may include the right to be apprised of the information and reasons underlying the impending decision; to disclosure of material documents; to a public hearing, and, at that hearing, to appear with legal representation and to examine and cross-examine witnesses: see, generally, Baxter Administrative Law at pp545-547.

The criterion, as I have noted, is one of fundamental fairness, and, for that reason, the principles of natural justice are always flexible.

Thus, the 'right to be heard' in appropriate circumstances may be confined to the submission of written representations. It is not the equivalent of a 'hearing' as that term is ordinarily understood.”

Thus, when the first respondent decided to refer the matter to the President, the appellant was advised of this decision and the basis thereof. It was not necessary for the appellant to again respond to the letter.

The decision to refer the matter to the President cannot, in these circumstances, be said to be a nullity.

In any event, after the tribunal established by the President was mandated to investigate all the allegations against the appellant, and, in carrying out the investigations, the appellant was again afforded the opportunity for a fair hearing.

It is an open secret that the appellant elected to walk out from the hearing of an independent tribunal.

In Forestry Commission v Moyo 1997 (1) ZLR 254 (S)…, the court discussed the effect of walking out of a disciplinary hearing and remarked as follows:

“The second and alternative ground, as I understand it, was that the respondent ought to have been afforded the opportunity to be heard even though he had walked out of the inquiry. I am unable to agree…,. His exit indicated that he had no intention of participating in the inquiry. He took a calculated risk that it would proceed without him. There was, in my opinion, no obligation upon the investigation panel to postpone the hearing and call upon the respondent to appear at another date. The audi alteram partem rule was not violated.”…,.

See also Dombodzvuku & Anor v CMED (Pvt) Ltd SC14-11.

The appellant ought to have been cognisant of the fact, that, the tribunal was set up to investigate his matter on all issues which related to his alleged acts of misconduct.

If the appellant had an issue with the letter from Mr Ndudzo, and such complaint arose after the decision made on 13 December 2019, to refer his matter to the President had already been made, the appellant should have challenged that letter before the tribunal.

It was not disputed that the appellant was given an opportunity to represent himself and prove his defence before the tribunal, but, rather, it was conceded that he walked out of the tribunal hearing.

From the above cited authorities, the appellant's actions, of walking out of the hearing, amounted to a waiver of his right to the audi alteram partem rule.

The first respondent gave the appellant adequate opportunities to make his case, and, likewise, the tribunal gave the appellant every opportunity to make his case, but, the appellant decided to waive the right for reasons best known to himself. The appellant's right to be heard cannot be said to have been violated in the circumstances of this case.

The appellant's fourth ground of appeal thus lacks merit.

DISPOSITION

The preliminary objection raised by the first respondent has merit as the matter is now moot. However, in the exercise of our discretion, we decided to determine the merits of the matter.

We are of the firm view that the appeal is devoid of any merit. The decision of the court a quo cannot be impugned. The appeal must therefore be dismissed.

The parties were agreed that each party will bear its own costs in the matter. As such, no order will be made in respect of costs.

In the result, it is accordingly ordered as follows:

The appeal be and is hereby dismissed with no order as to costs.

CC14-20 : HILTON CHIRONGA and RASHID MAHIYA vs MINISTER OF JUSTICE, LEGAL & PARLIAMENTARY AFFAIRS and MINISTER OF HOME AFFAIRS and MINISTER OF DEFENCE and GOVERNMENT OF ZIMBABWE
Ruled By: MALABA DCJ, ZIYAMBI JCC, GWAUNZA JCC, GARWE JCC, GOWORA JCC, HLATHSWAYO JCC, PATEL JCC, BHUNU JCC and UCHENA JCC

One of the crucial elements of the new constitutional dispension ushered in by the 2013 Constitution is to make a decisive break from turning a blind eye to constitutional obligations. To achieve this goal, the drafters of the Zimbabwean Constitution Amendment (No.20) Act 2013 (“the Constitution”) adopted the rule of law and supremacy of the Constitution as some of the core founding values and principles of our constitutional democracy.

For this reason, public office bearers ignore their constitutional obligations at their own peril. Left unchecked, those clothed with State authority, or public power, may quite often find the temptation to abuse such powers irresistible, as Lord Acton famously remarked:

“Power tends to corrupt, and absolute power corrupts absolutely!”

John Emerich Dalberg-Acton, 1st Baron Acton, coined the proverbial saying in 1857 using similar ideas expressed by several of his contemporaries. The fuller expression reads:

“Power tends to corrupt and absolute power corrupts absolutely. Great men are almost always bad men, even when they exercise influence and not authority; still more when you super-add the tendency of the certainty of corruption by authority.”

Mechanisms to oversee how public power and State authority is exercised by those so entrusted must be tightened and strengthened. More importantly, if such mechanisms are by command of the supreme law of the land, the Constitution, they must be put in place within a reasonable time to actualise the Constitution as a living document.

To this end, the State, its organs, and functionaries cannot, without consequence, be allowed to adopt a lackadaisical attitude, at the expense of the public interest, in bringing into operation institutions and mechanisms commanded by the supreme law: see the case of Mashongwa v Passenger Rail Agency of South Africa 2016 (3) SA 528 (CC)…,.

The Constitution is the conscience of the nation and the courts are its guardians or custodians: see case of South African Revenue Authority v Commissioner for Conciliation, Mediation and Arbitration and Others [2016] ZACC 38.

On this Court's shoulder rests the very important responsibility of holding our constitutional democracy together and giving hope to all our people that their constitutional aspirations will be realized and protected.

CC14-20 : HILTON CHIRONGA and RASHID MAHIYA vs MINISTER OF JUSTICE, LEGAL & PARLIAMENTARY AFFAIRS and MINISTER OF HOME AFFAIRS and MINISTER OF DEFENCE and GOVERNMENT OF ZIMBABWE
Ruled By: MALABA DCJ, ZIYAMBI JCC, GWAUNZA JCC, GARWE JCC, GOWORA JCC, HLATHSWAYO JCC, PATEL JCC, BHUNU JCC and UCHENA JCC

Section 324 of the Constitution...,, requires that all constitutional obligations must be performed diligently and without delay.The South African Constitution contains a similar provision which was subject to interpretation in the case of Minister of Justice and Constitutional Development v Chonco and Others 2010 (4) SA 82 (CC). The South ...

HMA54-19 : TANDIWE MHLANGA vs ZIMBABWE LAND COMMISSION and MINISTER OF LANDS, AGRICULTURE & RURAL RESETTLEMENT and MUNASHE SHOKO
Ruled By: MAFUSIRE J

This was an opposed application. The original and main dispute was between the applicant and the third respondent. But, in this particular application, the applicant sought a remedy against the first and second respondents.

I guess the third respondent was cited merely as a nominal respondent being so much of an interested party.

The applicant captioned her application as one in terms of section 4 of the Administrative Justice Act [Chapter 10:28]. She complained that, being administrative bodies and therefore entities governed by that Act, the first and second respondents had failed to adhere to the standards set out in section 3 of the of the Administrative Justice Act. Briefly, these are:

(i) The right of a person to receive adequate notice of the nature and purpose of any action proposed to be taken by an administrative body;

(ii) The right to a reasonable opportunity to make adequate representations; and

(iii) The right to adequate notice of any right of review or appeal where applicable.

In terms of section 4 of the Administrative Justice Act, an aggrieved person has the right to approach the High Court for relief.

The details were these:

The applicant was quarrelling with the third respondent over a piece of sugar cane land on which they had been allocated by Government in terms of its land reform programme. The applicant had an offer letter dated 2004 over a piece of land that was plus or minus 50 hectares in extent. The third respondent also had an offer letter issued sometime in 2017 over a piece of land plus or minus 21 hectares in extent.

The applicant claimed the 21 hectares offered to the third respondent had been carved out of her own 50 hectares without due process.

She said, in September 2017, the third respondent, buoyed by that recent offer letter to him, had tried to force his way onto her land, yet, for thirteen years, she had been growing sugar cane undisturbed on the entire land - including the 21 hectares allegedly offered to the third respondent unprocedurally.

In September 2017, the applicant brought an urgent chamber application against the third respondent for an interdict to bar him from interfering with her farming operations on the disputed land.

I heard it. I never had to decide the matter. The parties agreed to an order by consent.

Essentially, the agreement was to have the matter referred to the first respondent for determination. The first respondent is the proper forum for such disputes. It is a constitutional body. In terms of section 297 of the Constitution, it is empowered to investigate and determine complaints and disputes regarding, among other things, the allocation of agricultural land.

On 14 September 2017, I issued an order by consent.

The operative part said the applicant would harvest the crop of cane on the disputed portion of the land, but, that, thereafter, all operations on it would cease pending the resolution of the dispute by the first respondent within thirty days.

The first respondent obliged.

In its notice of opposition to the present application, the first respondent said it had resolved the dispute in terms of the High Court order and in accordance with its Constitutional mandate.

It said on the appointed day, it had called the parties for a survey of the land boundaries. Using the advanced GPS facility (Global Positioning System), it had established, that, the 21 hectares allocated to the third respondent had been over and above, and quite separate from the 50 hectares allocated to the applicant. Her 50 hectares were intact. Of those, about 48 were arable. The respondent might have been farming the extra 21 hectares over the years but she had no lawful authority or any right over them.

It was this decision by the first respondent that sparked the present application.

The applicant said she was disgruntled by the decision. She claimed her representative had not been given an opportunity to make representations. She claimed the decision was unfair, unprocedural, illegal and irrational. In this regard she merely regurgitated the language of Secretary for Transport & Anor v Makwavarara 1991 (1) ZLR 18 (SC).

The applicant sought the following orders:

(i) That, the resolution made by the first respondent, on the dispute between the applicant and the third respondent, be set aside;

(ii) That, the offer of 21 hectares by the second respondent to the third respondent over the applicant's plot be cancelled;

(iii) That, the applicant should continue to tend to her sugar cane crop on the 21 hectares pending finalisation of the dispute;

(iv) That, the first and second respondents had to invite the applicant and the third respondent to submit representations in respect of the disputed land within thirty days of the court order; and

(v) That, the second respondent should make a determination into the matter giving written reasons within ninety days of the date of the court order.

The application was manifestly ill-conceived. I dismissed it soon after the presentation of oral submissions and gave my reasons ex tempore. That was on 2 February 2019.

The record was returned to the Registry.

Only in August 2019 did the Registry receive a letter from the applicant's lawyers wanting written reasons for my decision and claiming that a previous request had, by mistake, not been delivered. But, regrettably, I could not oblige soon enough. For much of the second term vacation, and the third term, I was indisposed.

That explains the delay in rendering this judgment.

The application was ill-conceived, because, apart from regurgitating the principles of review of an administrative decision, as set out by case law, there was little or nothing of the factual background upon which the application was based.

Both the first and third respondents stated, in their opposing affidavits, that, all the parties were called to witness the Global Positioning System (GPS) survey.

The applicant was completely silent about this crucial fact, both in her founding and answering affidavits.

So, I find that the applicant was present when the Global Positioning System (GPS) survey was conducted. She would have had the opportunity to make whatever representations she might have had.

The first respondent said the results of the GPS survey showed that the applicant's 50 hectares were not interfered with and that the 21 hectares allocated to the third respondent were not carved out of her portion.

The applicant proffered no counter argument, let alone present any facts to rebut the survey findings. She was simply adamant that the 21 hectares allocated to the third respondent had been chopped off her own allocation.

That was ill-conceived.

Part of the applicant's argument was that the first respondent wrongly treated the dispute between herself and the third respondent as a dispute over boundaries, yet it was not, but was a dispute of land invasion by the third respondent over land lawfully allocated and utilised by herself.

But, the dispute was indeed a dispute over boundaries.

The order by consent, in September 2017, expressly recognised the dispute as one over boundaries. The very first line to the preamble to that order read:

“Whereas there is a dispute relating to boundaries and allocation of land on Farm 38, Hippo Valley Estates, Chiredzi as between and among the parties;”

There was no basis for the remedies sought in the draft order. The real dispute had been competently and properly resolved by the first respondent.

That the applicant had farmed on the disputed portion of the land for thirteen years did not preclude the second respondent from properly allocating it to deserving beneficiaries as the applicant had not acquired rights over it.

When the first respondent resolved the dispute, it issued out a written determination. No breach of the Administrative Justice Act was shown to have occurred.

It was for the above reasons that I dismissed the application with costs.

View Appeal
HH236-18 : MFUNDO MLILO vs THE PRESIDENT OF THE REPUBLIC OF ZIMBABWE
Ruled By: MANGOTA J

This is an ordinary opposed application which the applicant turned into an urgent one. He did so through a letter which he addressed to the Registrar of this court. The letter is dated 20 February 2018. It reads, in part, as follows:“2. As you will be aware, the application, among ...

“2. As you will be aware, the application, among other things, seeks to challenge the constitutionality of the Presidential Powers (Temporary Measures) Act [Chapter 10:20] amended to Electoral Act Regulations 2016 published in Statutory Instrument 117/2017.

3. As you are aware of, the regulations we (sic) enacted on 15 September 2017 and therefore they will naturally expire by 15 March 2017.

4. In order to avoid a situation where arguments will be academic on aspects of the regulations, and given the fact that both parties have filed heads of argument in this matter, we seek that the matter be determined urgently.”…,.

It is evident, from the foregoing, that, the applicant was rushing against time.

However, the application was, in my view, not urgent. It was more of self-created urgency than it was urgent in the sense which the rules of court contemplate.

The Regulations were published on 15 September 2017. The applicant did not apply, as he should have done, shortly after the publication of the Regulations. He only filed his application some thirty-five (35) days after the event. He filed it on 20 October 2017. He did not explain the cause of the delay.

The form which he employed showed, that, the application should not have been enrolled on applications which fall under Rule 244 of the High Court Rules 1971. It did not have a certificate from a legal practitioner. It did not give reasons for its urgency. It was filed under Form 29 instead of under Form 29B of the rules of this court.

Urgency was, therefore, created by the applicant himself.

He suddenly became aware of the date of the expiration of the Regulations. He, accordingly, requested the Registrar to draw the court's attention to his predicament, and, in the process, he moved the court to hear the application before the period of the expiration of the Regulations.

The applicant used the Regulations as his point of entry into the substance of the application.

The application has less business with the Regulations. It, in fact, has more business with the constitutionality or otherwise of the Presidential Powers (Temporary Measures) Act [Chapter 10.20].

Paragraph 2 of the applicant's letter of 20 February 2018 is relevant in the mentioned regard.

He states, in the same, that, the application seeks to challenge the constitutionality of the Presidential Powers (Temporary Measures) Act [Chapter 10:20]. This, in my view, is the thrust of the application.

The applicant describes himself as a Zimbabwean scholar, businessman, and human rights activist. He says he has a direct interest in issues which relate to the rule of law, constitutionalism, democracy, and Zimbabwe's electoral process.

I mention in passing, that, human rights activism and constitutionalism took root in Zimbabwe in the late 1980s and early 1990s. Many non-governmental organisations sprouted through the length and breadth of the country. Activists who fell into, and continue to remain in, this very important field of work brought the Government of the day to account for its conduct in such areas as the due observance of the rule of law, people's fundamental rights, democracy, and elections.

Persons of the mind of the applicant remain a thorn in the eyes of Government.

They made, and continue to make, it to remain on course. They criticized, and continue to criticize, the conduct of Ministers of Government and their Ministries. They, in short, remain a constant cause of concern to the three pillars of the State: namely, the executive, the judiciary, and the legislature. They worried, and continue to worry, the politicians especially those whose functions fall under the executive organ of the State.

Human rights activists are, therefore, a sine qua non aspect of any democratic order.

They make every effort to point out, as well as speak against, such deviant behaviour as corruption, inertia, unconstitutionalism and/or the absence of democratic principles. Their continued existence in a society is a most welcome development which governments the world over are encouraged to embrace and not ignore.

When such activists, as the applicant, request members of the executive to jump, the ideal situation is that the latter should not question why they are being asked to jump. The only question which they can, and should, ask is how high they should jump.

It is, therefore, in the context of the above stated matters, that this application would be considered as well as determined.

The applicant, it has already been stated, falls into the category of the above described group of persons. He lays stiff criticism on the continued existence of the Presidential Powers (Temporary Measures) Act.

He insists that the Presidential Powers (Temporary Measures) Act serves no meaningful purpose in an independent and democratic Zimbabwe. He advocates the strengthening, as well as the observance, of constitutional provisions which, he says, protect and advance the people's fundamental rights and freedoms. He lays emphasis on matters which relate to the rule of law, democracy, constitutionalism, and/or the doctrine of separation of powers amongst the three pillars of the State.

The thrust of the applicant's argument is that the Presidential Powers (Temporary Measures) Act is ultra vires the Constitution of Zimbabwe.

He submits that the President has abused the Presidential Powers (Temporary Measures) Act as and when he pleased.

The Presidential Powers (Temporary Measures) Act, he argues, allows the President to make law by decree as opposed to having the same made by Parliament which, in terms of the Constitution, is the law–making authority in Zimbabwe.

He insists that the Presidential Powers (Temporary Measures) Act must be struck off the country's statute books because its provisions are not consistent with those of the Constitution of Zimbabwe.

The application which is before me is unique.

It is unique in the sense, that, it is the first of its kind to test the constitutionality or otherwise of the Presidential Powers (Temporary Measures) Act after the coming into existence of the Constitution of Zimbabwe Amendment [No.20] Act of 2013.

The Presidential Powers (Temporary Measures) Act was promulgated in 1986. It survived all applications, and they were many, of the present nature. It did so largely because of some provision of the 1979 Constitution which provision ensured its continued existence in the country's statute books. That provision, it was argued, does not exist in the new Constitution which replaced the old one.

It follows, from the foregoing, that, case authorities which dealt with the continued existence or otherwise of the Presidential Powers (Temporary Measures) Act will not be of much assistance towards the determination of this application. The decisions were, no doubt, anchored upon the provision which ensured the retention of the Presidential Powers (Temporary Measures) Act.

The current application will, in the result, be decided on what, in my view, is the correct interpretation of the new Constitutional provisions.

It will be decided on the basis of provisions which define the role and functions of such State actors as the President, Parliament, and the Judiciary of an independent and democratic society such as the one in which we live.

I have already stated, in some part of this judgment, that, the applicant used the Presidential Powers (Temporary Measures) Amendment of Electoral Act Regulations, S.I.117 of 2017, as his point of entry into the application.

He criticizes the Presidential Powers (Temporary Measures) Amendment of Electoral Act Regulations, SI117 of 2017 which the President published on 15 September 2017. He says these are null, void, and of no force or effect.

He submits, that, only Parliament can make law in Zimbabwe. He insists that the President cannot do so.

He criticizes section 2(2) of the Presidential Powers (Temporary Measures) Act which he says purports to give to the President power to change, or over-ride, an Act of Parliament.

He states, that, the President's conduct, of publicizing the Presidential Powers (Temporary Measures) Amendment of Electoral Act Regulations, SI117 of 2017 is ultra vires the Act. He, therefore, moved the court to declare:

(a) The Presidential Powers (Temporary Measures) Act to be ultra vires the Constitution of Zimbabwe; or alternatively

(b) Section 2(2) of the Presidential Powers (Temporary Measures) Act a nullity; and

(c) The President's actions, of publishing the Presidential Powers (Temporary Measures) Amendment of Electoral Act Regulations, S.I.117 of 2017 to be ultra vires the Act.

He, in short, moved the court to make the declarations and set aside the Presidential Powers (Temporary Measures) Act as well as the Presidential Powers (Temporary Measures) Amendment of Electoral Act Regulations, SI117/2017 which flow from the same.

The respondent is the President of the Republic of Zimbabwe. He opposes the application.

He states, that, the Presidential Powers (Temporary Measures) Amendment of Electoral Act Regulations, SI117/2017, which he published, were necessitated by the biometric voter registration exercise which the country adopted in preparation for the July/August 2018 election. He says everyone who was on the old voters roll was expected to register through the newly adopted voter registration system.

He avers that he did not act outside the law.

Section 2(2) of the Presidential Powers (Temporary Measures) Act, he says, confers authority upon him to publish the Regulations as he did.

He submits that he did not go beyond the powers which the Constitution of Zimbabwe confers upon him. He drew my attention to his executive functions which are contained in section 110(1) of the Constitution.

He denies that his conduct, in publishing the Regulations, violated the Presidential Powers (Temporary Measures) Act or the Constitution.

He submits that, under the common law, he has always enjoyed prerogative powers which allowed him to make temporary legislation in urgent situations. He states that the current Constitution did not abolish his prerogative powers.

He insists that the Presidential Powers (Temporary Measures) Act conferred power on him to make law in the general public interest. He avers that the Act recognizes Parliament's law-making function. He denies that the Act confers sweeping powers upon him.

He moved the court to dismiss the application with costs.

The application was well-researched, well-argued, as well as presented.

It drew my attention to a number of important case authorities which, in a large measure, addressed the concerns of the applicant.

It cited six cases of the South African Constitutional Court, four case authorities from the courts of the United States of America, four cases which the Privy Council decided, and two case authorities which the Supreme Court of India decided, among others.

The cited cases brought to the fore such pertinent matters as the supremacy of a country's Constitution, the doctrine of separation of powers, rule of law, and issues which pertain to procedural and/or substantive legality by such State actors as the respondent in casu.

The cases were, no doubt, rich, informative, thoroughly persuasive, as well as educative.

That having have been said, sight must not, however, be lost of the fact that each case to which the applicant drew my attention was decided in context. The decision was not plucked from thin air and placed on paper. It was based on the country's Constitution and other pieces of legislation which were relevant to the case. The court was, in each case, interpreting the law as it existed in its jurisdiction as measured against the facts of the matter which was then before it.

I mention, at this stage, that, the facts of the cases to which the applicant drew my attention remain unknown to me. I also state that the Constitutions and other pieces of legislation which influenced the decision of the court in each cited case were not availed to me. My attention was only drawn to the important dicta which the courts pronounced in each case.

The above stated matters make it hard, if not impossible, for me to go along with the decided case authorities. That is so notwithstanding their persuasive value. I cannot, in other words, conclude that what the court in America, or India, or South Africa pronounced should apply to the case which is before me.

Judicial work does not work in a vacuum. It operates upon a set of rules, chief among which is a country's Constitution and any legislation which is relevant to a case which is being decided. It interprets the law as it exists in a country's Constitution and other law. It interprets those against a certain set of stated matters.

The current application will, therefore, be decided in the context of the Constitution of Zimbabwe Amendment (No.20) Act of 2013 as read with the Presidential Powers (Temporary Measures) Act [Chapter 10:20] [“the Act”] and matters which relate to the two pieces of legislation.

Amongst such matters is the birth of a new voters roll which the President made mention of in his opposition to the application.

The President made law when he published the 2017 Presidential Powers (Temporary Measures) Amendment of Electoral Act Regulations, SI117/2017. He rested his law-making conduct on section 2 of the Presidential Powers (Temporary Measures) Act.

The section allows him to make law, albeit of a temporary nature, in certain circumstances of urgency.

The section reads, in the relevant portion, as follows:

“2. Making of Urgent Regulations

(1) When it appears to the President that:

(a) A situation has arisen or is likely to arise which needs to be dealt with urgently in the interests of defence, public safety, public order, public morality, public health, the economic interests of Zimbabwe or the general public interest; and

(b) The situation cannot adequately be dealt with in terms of any other law; and

(c) Because of the urgency, it is inexpedient to await the passage through Parliament of an Act dealing with the situation; then, subject to this Constitution and this Act, the President may make such regulations as he considers will deal with the situation.”

It is evident, from the above-cited portion of the section, that, the President's discretion to make Regulations is only exercisable by him in the interests of the people of Zimbabwe as a whole. He does not exercise the discretion in the interests of a section of the population of the country. The use of the word 'public' which appears in the various facets for which the discretion is exercised says it all.

The President did not publish the Regulations for the fun of it.

He did not, as the applicant alleges, make an effort to abuse the law making function which the Presidential Powers (Temporary Measures) Act confers upon him. He states, and correctly so, that the advent of the biometric voter registration exercise which Zimbabwe contemplated to put into place made it necessary for him to act as he did.

His contention, with which l agree, was that the advent of a new voters roll could not properly be covered by a law which Parliament would have introduced, debated, and passed into law without interfering with the times-lines of the forthcoming 2018 harmonised election. It was, according to him, out of necessity and urgency that he published the Presidential Powers (Temporary Measures) Amendment of Electoral Act Regulations, S.I.117 of 2017.

He insists, and l agree, that the preparation of the new voters roll, as measured against the July/ August 2018 election, was not an event but process.

The background of the matter which relates to the publication of the Regulations is relevant.

I take judicial notice of the fact, that, for a considerable length of time in the past, the people of Zimbabwe urged Government to:

(i) Do away with the old voters roll which they said contained a lot of inconsistencies as well as unnecessary features;

(ii) Replace it with a new voters roll which was more credible than the old one. A voters roll which was credible in terms of voter population, its density in a particular area, and detail;

(iii) Remove the voters roll from the office of the Registrar-General and place it within the domain of the Zimbabwe Electoral Commission.

It is my view that the applicant, and others of a like mind, were at the forefront of the stated matter.

He made a statement to an equal effect in his founding affidavit. He and other human rights activists urged and encouraged Government to address their abovementioned concerns. They insisted that its attention to the same would render the forthcoming July/August 2018 election more credible than otherwise.

The President, as Head of State and Government, heeded the call of the people of Zimbabwe.

He remained alive to the fact, that, whatever was to be achieved in response to the people's concerns was to be supported by some law. He, therefore, published the Presidential Powers (Temporary Measures) Amendment of Electoral Act Regulations, SI117 of 2017 which, in his view, would take the place of the law which Parliament was constrained to make within the time which preceded the election.

That the President complied with the procedural legality of the Presidential Powers (Temporary Measures) Act requires little, if any, debate.

He, as the applicant stated, published the Regulations. He published them on 15 September 2017. He did so after he had notified the people of Zimbabwe of his intention to publish the same. He, in the mentioned regard, made substantial compliance with section 3 of the Presidential Powers (Temporary Measures) Act.

It cannot, in view of the above stated matter, be suggested that the President's conduct, in publishing the Regulations, was ultra vires the Presidential Powers (Temporary Measures) Act. He published them in terms of an existing law. The law conferred upon him the power to act as he did. He followed the procedural aspects of that law to the letter and spirit.

His conduct was above reproach. It was, and it remains, valid.

I have already stated, in the foregoing portions of this judgment, that, the Presidential Powers (Temporary Measures) Amendment of Electoral Act Regulations, S.I.117 of 2017 are not the subject of this application.

The subject, from the perspective of the applicant, is the Presidential Powers (Temporary Measures) Act itself.

If the Regulations were the issue, the applicant would have invoked section 3(1)(b) of the Presidential Powers (Temporary Measures) Act as read with subsection (2) of the same. He would, in other words, have objected to the publication of the Regulations when the President made his intention known to him, and others, through the Government Gazette Extraordinary, Volume XCV No.61.

The fact that the applicant did not object to the publication of the Regulations, at the time that the President's intention appeared in the Gazette, shows his real intention.

The intention is that he wanted to use the Regulations, after they had been published, as his entry point into criticizing the substance of the Presidential Powers (Temporary Measures) Act.

The observed matter, therefore, takes the discourse to the substantive legality or otherwise of the Presidential Powers (Temporary Measures) Act.

Whether or not the Presidential Powers (Temporary Measures) Act is substantively legal depends on the provisions, if any, of the Constitution which relate to it. This, in a nutshell, refers to the constitutionality or otherwise of the Presidential Powers (Temporary Measures) Act.

The question which we should ask and answer centres on whether or not the law-making function of the President, as conferred upon him by the Presidential Powers (Temporary Measures) Act violates the Constitution of Zimbabwe.

The same question, put differently, would read: did Parliament act within or without the Constitution when it conferred some of its law-making function in the Presidential Powers (Temporary Measures) Act to the President?

Succinctly and boldly stated, the same question reads: Is the Presidential Powers (Temporary Measures) Act in compliance with the Constitution of Zimbabwe (No.20) Act of 2013 (“the Constitution”)?

The legislative authority of Zimbabwe is reposed in the Legislature. This comprises Parliament and the President acting in accordance with this Chapter.

Sections 116, 117 and subsections (2), (3), 5(a), 6(a) and (b), 7(a), 8(a) and (b), (9) and (10) of section 131 of the Constitution of Zimbabwe spell out the complimentary roles which Parliament and the President play in Zimbabwe's law-making process. They check and balance each other's work. The one cannot make law without the input of the other and vice-versa.

The fact that the President can, in terms of section 131(8)(b) of the Constitution as read with subsection (9) of the section, refer a Bill to the Constitutional Court for advice on its constitutionality shows that the judiciary is, to some extent, involved in the law-making process. It ensures that all Bills which Parliament and the President pass into law must comply with the Constitution of Zimbabwe.

The checks and balances which exist in section 131 of the Constitution also exist in section 4 of the Presidential Powers (Temporary Measures) Act.

The President does not, therefore, have sweeping powers as the applicant alleges.

The Regulations which he makes are, as of necessity, subject to Parliamentary review and/or scrutiny. It is within the domain of Parliament to resolve that any Regulations which have been laid before it be either amended or even repealed. Once such a resolution has been made, the President has no option but to comply with the resolution of Parliament.

It follows from the foregoing, therefore, that, complete separation of powers of the three organs of the State, i.e the Executive, the Legislature and the Judiciary, is a myth. It is not achievable in the context of the Constitution of Zimbabwe.

I, in the mentioned regard, associate myself fully with the views which the Constitutional Court of South Africa was pleased to express in Ex parte Chairperson of the Constitutional Assembly: In Re: Certification of the Constitution of the Republic of South Africa 1996 (4) SA 744. It stated…, as follows:

“There is, however, no universal model of separation of powers, and, in democratic systems of government in which checks and balances result in the imposition of restraints by one branch of government upon another, there is no separation that is absolute….,.

The principle of separation of powers, on the one hand, recognizes the functional independence of branches of government. On the other hand, the principle of checks and balances focuses on the desirability of ensuring that the constitutional order, as a totality, prevents the branches of government from usurping power from one another. In this sense, it anticipates the necessary and unavoidable intrusion of one branch into the terrain of another. No constitutional scheme can reflect a complete separation of powers: The scheme is always one of partial separation.”…,.

The President's necessary and unavoidable intrusion into the function of Parliament is evident from a reading of section 86 of the Constitution. The section deals with the limitation of the people of Zimbabwe's fundamental rights and freedoms. It reads, in part, as follows:

“86 Limitation of Rights and Freedoms

(1) The fundamental rights and freedoms set out in this chapter must be exercised reasonably and with due regard for the rights and freedoms of other persons.

(2) The fundamental rights and freedoms set out in this chapter may be limited only in terms of a law of general application and to the extent that the limitation is fair, reasonable, necessary and justifiable in a democratic society based on openness, justice, human dignity, equality and freedom, taking into account all relevant factors, including -

(a)…,.;

(b) The purpose of the limitation, in particular whether it is necessary in the interests of defence, public safety, public order, public morality, public health, regional or town, planning or the general public interest….,.”…,.

The question which begs the answer is: who/which authority has the power to limit the people of Zimbabwe's fundamental rights and freedoms when any of the matters which are stated in section 86(2)(b) of the Constitution has arisen or is about to occur?

The applicant does not mention the person or authority who/which, in terms of a law of general application, can limit the people's rights and freedoms.

The limitation, no doubt, has far-reaching consequences. It relates to matters which, if left unattended, adversely affect a considerable portion of Zimbabwe's population - if not the people of Zimbabwe as a whole.

The President says the Presidential Powers (Temporary Measures) Act and the Constitution confers upon him that power to deal with any of the matters which are stated in section 86(2)(b) of the Constitution when such have arisen or are about to occur.

He states, in casu, that, it was in the interest of the general public of Zimbabwe that he made the Presidential Powers (Temporary Measures) Amendment of Electoral Act Regulations, SI117 of 2017.

That the general public interest was real as opposed to having been fanciful requires no debate. That was so, given the people's outcry for a new voters roll which had to replace the old one with which they were not satisfied.

Parliament could not make law within the time which remained to deal with the situation which was then at hand. Whatever process which pertained to the introduction into the country of a new voters roll required some law to be in place before it could be embarked upon.

The President, therefore, made that law in line with his law-making function as was provided for in the Presidential Powers (Temporary Measures) Act and the Constitution.

The verbatim repetition of section 86(2)(b) of the Constitution in section 2(1)(a) of the Presidential Powers (Temporary Measures) Act confirms the Constitution's recognition of the Presidential Powers (Temporary Measures) Act.

The stated matter confirms further, that, it is only the President who has the power to limit, through the Presidential Powers (Temporary Measures) Act, the people of Zimbabwe's fundamental rights and freedoms which are contained in the Constitution. Those can be limited when certain undesirable occurrences have arisen or are about to arise.

The President limits them in the interests of Zimbabwe's public good.

The drafters of the Constitution were, in my view, alive to the existence of the Presidential Powers (Temporary Measures) Act.

They crafted section 134 of the Constitution to confer power on Ministers of Government and such statutory bodies as the Zimbabwe Electoral Commission to make subsidiary legislation. They state, in the section, that, the legislation which these make should not go outside the enabling Act which establishes their law-making function.

Because the President's law-making power exists in the Presidential Powers (Temporary Measures) Act, the drafters of the Constitution did not include it in section 134 of the Constitution.

Because his powers, as stated in section 86(2)(b) of the Constitution, relate to limitation of the people of Zimbabwe's fundamental rights and freedoms in certain unforeseen circumstances, he could not effectively exercise the same under section 134 of the Constitution.

Paragraphs (b), (c) and (d) of the section would have disenabled him from effectively dealing with situations of disastrous consequences which he has to address in his capacity of Head of State and Government when such arise.

It was for the mentioned reasons, if for no other, that the Presidential Powers (Temporary Measures) Act conferred upon him power to deal with any situation which, in his view, would work against Zimbabwe's public interest in an adverse manner.

Section 5 of the Presidential Powers (Temporary Measures) Act accords to him the leeway to deal with the situation which would have arisen or is about to occur in a very effective as well as conclusive manner.

It allows him to override an Act of Parliament where such is necessary in the interests of the public good of Zimbabwe.

It makes little, if any, sense for the applicant to suggest that Ministers, whom the President appoints into cabinet, can make subsidiary legislations under section 134 of the Constitution and the appointing authority himself cannot.

The applicant's reading of section 134 of the Constitution is misplaced.

He overlooks the fact, that, its application relates to the making of law by Ministers of Government and statutory bodies. He remains oblivious to the fact, that, the President's law-making function is not covered under the section but under the Presidential Powers (Temporary Measures) Act and the Constitution.

The President states, and I agree, that, section 110(1) of the Constitution confers upon him the power to make law. It reads:

“(1) The President has the powers conferred by this Constitution and by any Act of Parliament or other law including those necessary to exercise the functions of Head of State.”…,.

It is his status, as Head of State and Government, which allows him to limit the people of Zimbabwe's fundamental rights and freedoms when a need to do so arises or is about to occur.

He will be complying with his duties as the President of Zimbabwe in the mentioned regard.

He will be, as is stated in section 90(2)(a) of the Constitution, promoting unity and peace for the benefit and well-being of the people of Zimbabwe.

It is evident, from the foregoing, that:

(a) The conduct of the President was not ultra vires the Presidential Powers (Temporary Measures) Act;

(b) The Regulations which he published were procedurally and substantively compliant with the law under which they were made; and

(c) The Presidential Powers (Temporary Measures) Act is not ultra-vires the Constitution of Zimbabwe.

The applicant, in my view, confused the President's ordinary law-making function, as it is stated in Chapter 6 of the Constitution, with his law making function as it exists in the Presidential Powers (Temporary Measures) Act as read with sections 86 and 110 of the Constitution.

He sought to do away with the President's law-making power as it is contained in the Presidential Powers (Temporary Measures) Act.

The Presidential Powers (Temporary Measures) Act, it has already been observed, is in complete harmony with the Constitution.

The application constituted an interesting exercise of the mind. It was more academic than it was real. It was devoid of merit. It cannot, therefore, stand.

The applicant did not prove his case on a balance of probabilities. The application is, accordingly, dismissed with costs.

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Law Portal
Zimbabwe

Administrative Law re: Approach, Discretionary Powers, Judicial Interference and the Doctrine of Legitimate Expectation

View Appeal
HMA28-20 : TRIANGLE LIMITED and HIPPO VALLEY ESTATES vs ZIMBABWE REVENUE AUTHORITY and OTHERS
Ruled By: ZISENGWE J

SC65-18 : PIONEER TRANSPORT vs MAFIKENI
Ruled By: GARWE JA, MAVANGIRA JA and BHUNU JA

SC102-21 : DOVES FUNERAL ASSURANCE (PVT) LTD vs FERNABY INVESTMENTS (PVT) LTD and QUECOM ENGINEERING (PVT) LTD and DENNIS NGORIMA and STANDARD CHARTERED BANK LTD and HOMELAND REAL ESTATE and THE SHERIFF
Ruled By: BHUNU JA, MATHONSI JA and CHITAKUNYE JA

SC105-21 : WALTER MAGAYA vs ZIMBABWE GENDER COMMISSION
Ruled By: GOWORA JA, PATEL JA and UCHENA JA

HH169-13 : TROJAN NICKEL MINE LIMITED vs RESERVE BANK OF ZIMBABWE
Ruled By: MATHONSI J

HHH374-19 : MUNYARADZI KEREKE vs FRANCIS MARAMWIDZE N.O.
Ruled By: HUNGWE J and WAMAMBO J

Appealed
SC119-21 : MINISTER OF JUSTICE, LEGAL AND PARLIAMENTARY AFFAIRS and OTHERS vs CONCILIA CHINANZVAVANA and THE NATIONAL PEACE AND RECONCILIATION COMMISSION
Ruled By: GWAUNZA DCJ, GUVAVA JA and BHUNU JA

SC06-14 : ZIMASCO (PRIVATE) LIMITED vs MAYNARD MARIKANO
Ruled By: GARWE JA, GOWORA JA and OMERJEE AJA

SC141-21 : WISE GARIRA and SHEPHARD MASHINGAIDZE and BAYAI BAYAI vs NATIONAL ENGINEERING WORKERS UNION and FIRST CAPITAL BANK
Ruled By: GUVAVA JA, BHUNU JA and KUDYA AJA

HH79-12 : MARIANE SABETA vs COMMISSIONER GENERAL ZIMBABWE REVENUE AUTHORITY
Ruled By: MATHONSI J

HB46-15 : ZENZO NTULIKI vs TIMOTHY SEAN WHITE and OFFICER COMMANDING MATEBELELAND SOUTH PROVINCE and THE SHERIFF OF ZIMBABWE N.O.
Ruled By: MOYO J

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

HH595-15 : MAKANDI TEA AND COFFEE ESTATE (PVT) LTD vs THE ATTORNEY GENERAL OF ZIMBABWE N.O. and V. GAPARA N.O.
Ruled By: MAKONI J

CC02-21 : TEMBA MLISWA vs PARLIAMENT OF THE REPUBLIC OF ZIMBABWE
Ruled By: MALABA CJ, GWAUNZA DCJ, GARWE AJCC, MAKARAU AJCC, GOWORA AJCC, HLATSHWAYO AJCC and PATEL AJCC

Appealed
CC01-20 : WILLMORE MAKUMIRE vs MINISTER OF PUBLIC SERVICE, LABOUR & SOCIAL WELFARE and ATTORNEY-GENERAL OF ZIMBABWE
Ruled By: MALABA CJ, GARWE JCC, MAKARAU JCC, GOWORA JCC, PATEL JCC, GUVAVA JCC, MAVANGIRA JCC, MAKONI JCC and BERE JCC

CC04-13 : BRIAN JAMES vs ZIMBABWE ELECTORAL COMMISSION and MINISTER OF LOCAL GOVERNMENT RURAL & URBAN DEVELOPMENT and MINISTER OF JUSTICE & LEGAL AFFAIRS and OTHERS
Ruled By: CHIDYAUSIKU CJ, MALABA DCJ, ZIYAMBI JA, GWAUNZA JA, GARWE JA, GOWORA JA, PATEL JA, HLATSHWAYO JA and CHIWESHE AJA

CC10-22 : FRANCIS BERE vs JUDICIAL SERVICE COMMISSION and SIMBI MUBAKO and REKAYI MAPOSA and TAKAWIRA NZOMBE and VIRGINIA MABHIZA and PRESIDENT OF ZIMBABWE and MINISTER OF JUSTICE LEGAL & PARLIAMENTARY AFFAIRS
Ruled By: GARWE JCC, HLATSHWAYO JCC and PATEL JCC

HH24-19 : MOHAMMED ISMAIL (as the guardian of X - a minor) vs SAINT JOHNS COLLEGE and CAVALIERE COORRADO TRINCI N.O. and STEVE MARTIN N.O. and MINISTRY OF PRIMARY AND SECONDARY EDUCATION
Ruled By: CHITAKUNYE J

CC04-16 : SISTER BERRY (NEE NCUBE) and JESSE AARON BERRY vs THE CHIEF IMMIGRATION OFFICER and THE MINISTER OF HOME AFFAIRS
Ruled By: CHIDYAUSIKU CJ, MALABA DCJ, ZIYAMBI JCC, GWAUNZA JCC, GOWORA JCC, HLATSHWAYO JCC, PATEL JCC, GUVAVA JCC and MAVANGIRA AJCC

Appealed
HH510-20 : FRANCIS BERE vs JUDICIAL SERVICE COMMISSION and SIMBI MUBAKO and REKAYI MAPHOSA and TAKAWIRA NZOMBE and VIRGINIA MABHIZA and PRESIDENT OF ZIMBABWE and MINISTER OF JUSTICE, LEGAL & PARLIAMENTARY AFFAIRS and ATTORNEY GENERAL OF ZIMBABWE
Ruled By: CHIKOWERO J

View Appeal
SC01-22 : FRANCIS BERE vs JUDICIAL SERVICE COMMISSION and SIMBI MUBAKO and REKAYI MAPHOSA and TAKAWIRA NZOMBE and VIRGINIA MABHIZA and PRESIDENT OF ZIMBABWE and MINISTER OF JUSTICE, LEGAL AND PARLIAMENTARY AFFAIRS
Ruled By: GUVAVA JA, UCHENA JA and KUDYA AJA

CC14-20 : HILTON CHIRONGA and RASHID MAHIYA vs MINISTER OF JUSTICE, LEGAL & PARLIAMENTARY AFFAIRS and MINISTER OF HOME AFFAIRS and MINISTER OF DEFENCE and GOVERNMENT OF ZIMBABWE
Ruled By: MALABA DCJ, ZIYAMBI JCC, GWAUNZA JCC, GARWE JCC, GOWORA JCC, HLATHSWAYO JCC, PATEL JCC, BHUNU JCC and UCHENA JCC

CC14-20 : HILTON CHIRONGA and RASHID MAHIYA vs MINISTER OF JUSTICE, LEGAL & PARLIAMENTARY AFFAIRS and MINISTER OF HOME AFFAIRS and MINISTER OF DEFENCE and GOVERNMENT OF ZIMBABWE
Ruled By: MALABA DCJ, ZIYAMBI JCC, GWAUNZA JCC, GARWE JCC, GOWORA JCC, HLATHSWAYO JCC, PATEL JCC, BHUNU JCC and UCHENA JCC

HMA54-19 : TANDIWE MHLANGA vs ZIMBABWE LAND COMMISSION and MINISTER OF LANDS, AGRICULTURE & RURAL RESETTLEMENT and MUNASHE SHOKO
Ruled By: MAFUSIRE J

View Appeal
HH236-18 : MFUNDO MLILO vs THE PRESIDENT OF THE REPUBLIC OF ZIMBABWE
Ruled By: MANGOTA J

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Law Portal Zimbabwe

Administrative Law re: Approach, Discretionary Powers, Judicial Interference and the Doctrine of Legitimate Expectation

View Appeal HMA28-20 : TRIANGLE LIMITED and HIPPO VALLEY ESTATES vs ZIMBABWE REVENUE AUTHORITY and OTHERS Ruled By: ZISENGWE J

SC65-18 : PIONEER TRANSPORT vs MAFIKENI Ruled By: GARWE JA, MAVANGIRA JA and BHUNU JA

SC102-21 : DOVES FUNERAL ASSURANCE (PVT) LTD vs FERNABY INVESTMENTS (PVT) LTD and QUECOM ENGINEERING (PVT) LTD and DENNIS NGORIMA and STANDARD CHARTERED BANK LTD and HOMELAND REAL ESTATE and THE SHERIFF Ruled By: BHUNU JA, MATHONSI JA and CHITAKUNYE JA

SC105-21 : WALTER MAGAYA vs ZIMBABWE GENDER COMMISSION Ruled By: GOWORA JA, PATEL JA and UCHENA JA

HH169-13 : TROJAN NICKEL MINE LIMITED vs RESERVE BANK OF ZIMBABWE Ruled By: MATHONSI J

HHH374-19 : MUNYARADZI KEREKE vs FRANCIS MARAMWIDZE N.O. Ruled By: HUNGWE J and WAMAMBO J

Appealed SC119-21 : MINISTER OF JUSTICE, LEGAL AND PARLIAMENTARY AFFAIRS and OTHERS vs CONCILIA CHINANZVAVANA and THE NATIONAL PEACE AND RECONCILIATION COMMISSION Ruled By: GWAUNZA DCJ, GUVAVA JA and BHUNU JA

SC06-14 : ZIMASCO (PRIVATE) LIMITED vs MAYNARD MARIKANO Ruled By: GARWE JA, GOWORA JA and OMERJEE AJA

SC141-21 : WISE GARIRA and SHEPHARD MASHINGAIDZE and BAYAI BAYAI vs NATIONAL ENGINEERING WORKERS UNION and FIRST CAPITAL BANK Ruled By: GUVAVA JA, BHUNU JA and KUDYA AJA

HH79-12 : MARIANE SABETA vs COMMISSIONER GENERAL ZIMBABWE REVENUE AUTHORITY Ruled By: MATHONSI J

HB46-15 : ZENZO NTULIKI vs TIMOTHY SEAN WHITE and OFFICER COMMANDING MATEBELELAND SOUTH PROVINCE and THE SHERIFF OF ZIMBABWE N.O. Ruled By: MOYO J

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

HH595-15 : MAKANDI TEA AND COFFEE ESTATE (PVT) LTD vs THE ATTORNEY GENERAL OF ZIMBABWE N.O. and V. GAPARA N.O. Ruled By: MAKONI J

CC02-21 : TEMBA MLISWA vs PARLIAMENT OF THE REPUBLIC OF ZIMBABWE Ruled By: MALABA CJ, GWAUNZA DCJ, GARWE AJCC, MAKARAU AJCC, GOWORA AJCC, HLATSHWAYO AJCC and PATEL AJCC

Appealed CC01-20 : WILLMORE MAKUMIRE vs MINISTER OF PUBLIC SERVICE, LABOUR & SOCIAL WELFARE and ATTORNEY-GENERAL OF ZIMBABWE Ruled By: MALABA CJ, GARWE JCC, MAKARAU JCC, GOWORA JCC, PATEL JCC, GUVAVA JCC, MAVANGIRA JCC, MAKONI JCC and BERE JCC

CC04-13 : BRIAN JAMES vs ZIMBABWE ELECTORAL COMMISSION and MINISTER OF LOCAL GOVERNMENT RURAL & URBAN DEVELOPMENT and MINISTER OF JUSTICE & LEGAL AFFAIRS and OTHERS Ruled By: CHIDYAUSIKU CJ, MALABA DCJ, ZIYAMBI JA, GWAUNZA JA, GARWE JA, GOWORA JA, PATEL JA, HLATSHWAYO JA and CHIWESHE AJA

CC10-22 : FRANCIS BERE vs JUDICIAL SERVICE COMMISSION and SIMBI MUBAKO and REKAYI MAPOSA and TAKAWIRA NZOMBE and VIRGINIA MABHIZA and PRESIDENT OF ZIMBABWE and MINISTER OF JUSTICE LEGAL & PARLIAMENTARY AFFAIRS Ruled By: GARWE JCC, HLATSHWAYO JCC and PATEL JCC

HH24-19 : MOHAMMED ISMAIL (as the guardian of X - a minor) vs SAINT JOHNS COLLEGE and CAVALIERE COORRADO TRINCI N.O. and STEVE MARTIN N.O. and MINISTRY OF PRIMARY AND SECONDARY EDUCATION Ruled By: CHITAKUNYE J

CC04-16 : SISTER BERRY (NEE NCUBE) and JESSE AARON BERRY vs THE CHIEF IMMIGRATION OFFICER and THE MINISTER OF HOME AFFAIRS Ruled By: CHIDYAUSIKU CJ, MALABA DCJ, ZIYAMBI JCC, GWAUNZA JCC, GOWORA JCC, HLATSHWAYO JCC, PATEL JCC, GUVAVA JCC and MAVANGIRA AJCC

Appealed HH510-20 : FRANCIS BERE vs JUDICIAL SERVICE COMMISSION and SIMBI MUBAKO and REKAYI MAPHOSA and TAKAWIRA NZOMBE and VIRGINIA MABHIZA and PRESIDENT OF ZIMBABWE and MINISTER OF JUSTICE, LEGAL & PARLIAMENTARY AFFAIRS and ATTORNEY GENERAL OF ZIMBABWE Ruled By: CHIKOWERO J

View Appeal SC01-22 : FRANCIS BERE vs JUDICIAL SERVICE COMMISSION and SIMBI MUBAKO and REKAYI MAPHOSA and TAKAWIRA NZOMBE and VIRGINIA MABHIZA and PRESIDENT OF ZIMBABWE and MINISTER OF JUSTICE, LEGAL AND PARLIAMENTARY AFFAIRS Ruled By: GUVAVA JA, UCHENA JA and KUDYA AJA

HMA54-19 : TANDIWE MHLANGA vs ZIMBABWE LAND COMMISSION and MINISTER OF LANDS, AGRICULTURE & RURAL RESETTLEMENT and MUNASHE SHOKO Ruled By: MAFUSIRE J

View Appeal HH236-18 : MFUNDO MLILO vs THE PRESIDENT OF THE REPUBLIC OF ZIMBABWE Ruled By: MANGOTA J

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Zimbabwe

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HMA28-20 : TRIANGLE LIMITED and HIPPO VALLEY ESTATES vs ZIMBABWE REVENUE AUTHORITY and OTHERS
Ruled By: ZISENGWE J

SC65-18 : PIONEER TRANSPORT vs MAFIKENI
Ruled By: GARWE JA, MAVANGIRA JA and BHUNU JA

SC102-21 : DOVES FUNERAL ASSURANCE (PVT) LTD vs FERNABY INVESTMENTS (PVT) LTD and QUECOM ENGINEERING (PVT) LTD and DENNIS NGORIMA and STANDARD CHARTERED BANK LTD and HOMELAND REAL ESTATE and THE SHERIFF
Ruled By: BHUNU JA, MATHONSI JA and CHITAKUNYE JA

SC105-21 : WALTER MAGAYA vs ZIMBABWE GENDER COMMISSION
Ruled By: GOWORA JA, PATEL JA and UCHENA JA

HH169-13 : TROJAN NICKEL MINE LIMITED vs RESERVE BANK OF ZIMBABWE
Ruled By: MATHONSI J

HHH374-19 : MUNYARADZI KEREKE vs FRANCIS MARAMWIDZE N.O.
Ruled By: HUNGWE J and WAMAMBO J

Appealed
SC119-21 : MINISTER OF JUSTICE, LEGAL AND PARLIAMENTARY AFFAIRS and OTHERS vs CONCILIA CHINANZVAVANA and THE NATIONAL PEACE AND RECONCILIATION COMMISSION
Ruled By: GWAUNZA DCJ, GUVAVA JA and BHUNU JA

SC06-14 : ZIMASCO (PRIVATE) LIMITED vs MAYNARD MARIKANO
Ruled By: GARWE JA, GOWORA JA and OMERJEE AJA

SC141-21 : WISE GARIRA and SHEPHARD MASHINGAIDZE and BAYAI BAYAI vs NATIONAL ENGINEERING WORKERS UNION and FIRST CAPITAL BANK
Ruled By: GUVAVA JA, BHUNU JA and KUDYA AJA

HH79-12 : MARIANE SABETA vs COMMISSIONER GENERAL ZIMBABWE REVENUE AUTHORITY
Ruled By: MATHONSI J

HB46-15 : ZENZO NTULIKI vs TIMOTHY SEAN WHITE and OFFICER COMMANDING MATEBELELAND SOUTH PROVINCE and THE SHERIFF OF ZIMBABWE N.O.
Ruled By: MOYO J

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

HH595-15 : MAKANDI TEA AND COFFEE ESTATE (PVT) LTD vs THE ATTORNEY GENERAL OF ZIMBABWE N.O. and V. GAPARA N.O.
Ruled By: MAKONI J

CC02-21 : TEMBA MLISWA vs PARLIAMENT OF THE REPUBLIC OF ZIMBABWE
Ruled By: MALABA CJ, GWAUNZA DCJ, GARWE AJCC, MAKARAU AJCC, GOWORA AJCC, HLATSHWAYO AJCC and PATEL AJCC

Appealed
CC01-20 : WILLMORE MAKUMIRE vs MINISTER OF PUBLIC SERVICE, LABOUR & SOCIAL WELFARE and ATTORNEY-GENERAL OF ZIMBABWE
Ruled By: MALABA CJ, GARWE JCC, MAKARAU JCC, GOWORA JCC, PATEL JCC, GUVAVA JCC, MAVANGIRA JCC, MAKONI JCC and BERE JCC

CC04-13 : BRIAN JAMES vs ZIMBABWE ELECTORAL COMMISSION and MINISTER OF LOCAL GOVERNMENT RURAL & URBAN DEVELOPMENT and MINISTER OF JUSTICE & LEGAL AFFAIRS and OTHERS
Ruled By: CHIDYAUSIKU CJ, MALABA DCJ, ZIYAMBI JA, GWAUNZA JA, GARWE JA, GOWORA JA, PATEL JA, HLATSHWAYO JA and CHIWESHE AJA

CC10-22 : FRANCIS BERE vs JUDICIAL SERVICE COMMISSION and SIMBI MUBAKO and REKAYI MAPOSA and TAKAWIRA NZOMBE and VIRGINIA MABHIZA and PRESIDENT OF ZIMBABWE and MINISTER OF JUSTICE LEGAL & PARLIAMENTARY AFFAIRS
Ruled By: GARWE JCC, HLATSHWAYO JCC and PATEL JCC

HH24-19 : MOHAMMED ISMAIL (as the guardian of X - a minor) vs SAINT JOHNS COLLEGE and CAVALIERE COORRADO TRINCI N.O. and STEVE MARTIN N.O. and MINISTRY OF PRIMARY AND SECONDARY EDUCATION
Ruled By: CHITAKUNYE J

CC04-16 : SISTER BERRY (NEE NCUBE) and JESSE AARON BERRY vs THE CHIEF IMMIGRATION OFFICER and THE MINISTER OF HOME AFFAIRS
Ruled By: CHIDYAUSIKU CJ, MALABA DCJ, ZIYAMBI JCC, GWAUNZA JCC, GOWORA JCC, HLATSHWAYO JCC, PATEL JCC, GUVAVA JCC and MAVANGIRA AJCC

Appealed
HH510-20 : FRANCIS BERE vs JUDICIAL SERVICE COMMISSION and SIMBI MUBAKO and REKAYI MAPHOSA and TAKAWIRA NZOMBE and VIRGINIA MABHIZA and PRESIDENT OF ZIMBABWE and MINISTER OF JUSTICE, LEGAL & PARLIAMENTARY AFFAIRS and ATTORNEY GENERAL OF ZIMBABWE
Ruled By: CHIKOWERO J

View Appeal
SC01-22 : FRANCIS BERE vs JUDICIAL SERVICE COMMISSION and SIMBI MUBAKO and REKAYI MAPHOSA and TAKAWIRA NZOMBE and VIRGINIA MABHIZA and PRESIDENT OF ZIMBABWE and MINISTER OF JUSTICE, LEGAL AND PARLIAMENTARY AFFAIRS
Ruled By: GUVAVA JA, UCHENA JA and KUDYA AJA

HMA54-19 : TANDIWE MHLANGA vs ZIMBABWE LAND COMMISSION and MINISTER OF LANDS, AGRICULTURE & RURAL RESETTLEMENT and MUNASHE SHOKO
Ruled By: MAFUSIRE J

View Appeal
HH236-18 : MFUNDO MLILO vs THE PRESIDENT OF THE REPUBLIC OF ZIMBABWE
Ruled By: MANGOTA J