This is an application for direct access to this Court.
If the application is granted, it is the applicant's intention to approach this Court in terms of section 85(1)(a) of the Constitution of Zimbabwe, alleging and arguing that a judgment of the Supreme Court, handed down on 31 December 2020, infringed his dual rights to equal protection and benefit of the law and to a fair hearing before an independent and impartial court.
Background
The applicant owed the second respondent the sum of US$327,345=77 plus interest thereon at the rate of fifty percent per annum. On a date that is not material, the second respondent obtained judgment in the High Court against the applicant for the payment of the debt together with the accrued interest.
The applicant failed to satisfy the judgment debt.
In due course, the first respondent attached the applicant's farm and sold it by public auction. The sale realized the sum of US$205,000. The applicant successfully objected to the sale. The first respondent set the sale aside, accepting that the sale had been conducted in an irregular manner.
It had not been preceded by a nulla bona return against the applicant's movables and the property had been poorly described in the advertisement flighted before the sale.
In his ruling setting aside the sale, the first respondent indicated that he would offer the property for sale by private treaty for the following thirty days on certain specified conditions.
The first respondent proceeded to sell the property to the fourth respondent by private treaty for the sum of US$825,000.
Clearly not anticipating any further objections from the applicant, the first respondent advised the judgment creditor's legal practitioners of the sale by letter, which he also copied to the applicant.
In the same breath, he advised the parties that he had declared the fourth respondent the purchaser of the property and had consequently confirmed the sale in accordance with the rules of court.
The germane part of the letter reads:
“I refer to the sale in the above matter and advise that on 27 February 2018, the Sheriff declared and confirmed the highest bidder, Paperhole Investments (Pvt) Limited, to be the purchaser at the sum of US$825,000 after the property was sold by private treaty.”
The letter advising and confirming the sale at the same time was written on 27 February 2018, the same date on which the sale was concluded.
Upon receipt of his copy of the letter, the applicant approached the first respondent, intending, once again, to object to the sale.
The first respondent raised the defence of functus officio. He advised the applicant that after confirming the sale, his mandate was discharged and the applicant had to approach the High Court for any possible relief.
In due course, the applicant filed an application for review in the High Court, seeking an order setting aside the confirmation of the sale. He alleged that such confirmation was irregular and not in accordance with the rules of the High Court.
The application was opposed by all the respondents save for the third.
In opposing the application before the High Court, the first respondent stated in his opposing affidavit, that, he had declared the fourth respondent as the purchaser and had confirmed the sale in the same breath because it was his reading of the rules of court that the applicant had no right to object to the second sale. It was his considered position that the rules did not permit him to entertain multiple objections in respect of the same property sold in execution.
Dismissing the first respondent's contentions, the High Court upheld, and correctly so in my view, the applicant's right to challenge the second sale.
It found that the applicant's right to object to any sale of his property in execution was not limited by the certain number of objections he had taken. For as long as there was a sale in execution against his property, the applicant had the right to object to any such sale on the grounds given in the law.
The High Court, however, went on to dismiss the application for review on the basis that the applicant had failed to disclose in the papers before the court the grounds of his objection to the second sale.
Aggrieved by the dismissal of the application for review, the applicant appealed to the Supreme Court.
Before that court, he contended that once the High Court had upheld his right to object to the second sale, it ought to have given him an opportunity to lodge his objection with the first respondent in accordance with the Rules.
It was his argument, that, the nature and content of his objection, embodying the recognised grounds of objecting to the sale, was not an integral part of the application for review such that its absence would be fatal to that application.
Fully developed, it was his argument that the law did not require him to lodge his objection to the sale with the court in the application for review, but to lodge it with the first respondent once the court had upheld and protected his right to object.
Viewed differently, he argued that the High Court had wrongfully conflated the application seeking the declaration of his right to object to the second sale with the procedure that he had to adopt to enjoy that right.
In its judgment, the Supreme Court took a few steps backwards, and, without making any reference to the Notice of Appeal or seeking further submissions from the parties, found that the applicant had not lodged with the first respondent an objection to the second sale as was required of him by Rule 359(1) of the High Court Rules 1971 (now Rule 71(38)).
After setting out the relevant Rule in detail, the Supreme Court found that the applicant had not complied with the provisions of the Rule, which, in its view, is worded in peremptory terms.
For emphasis, the court a quo went further to hold that there was no provision in the Rule that imposes a duty on the first respondent to invite persons to submit objections to the confirmations of the sale of immovable property in execution of court judgments.
The above finding became the ratio decidendi of the Supreme Court judgement.
The application for leave
Respecting the finality of the judgment of the Supreme Court, the applicant brought this application for leave.
It is his intention to bring an application alleging that the Supreme Court judgment breaches his right to equal protection and benefit of the law and the right to a fair hearing before an independent and impartial court.
He submitted, in this regard, that the Supreme Court judgement is erroneous both in fact and in law.
In his application, the applicant raised four main arguments:
(i) Firstly, he argued that although the judgment of the Supreme Court was on a non-constitutional issue, it threatened the court's claim to judicial authority in that it infringed his right to judicial protection.
(ii) Secondly, he alleged that the Supreme Court failed to act in accordance with the law governing the proceedings that were before it, which failure disabled it from making a decision on the non-constitutional matter that was before it.
(iii) In the third instance, he argued that the failure by the court to act in accordance with the law governing the proceedings that were before it violated his rights to equal protection and benefit of the law and a fair hearing before an independent and impartial court.
(iv) Finally, he alleged that the judgment of the court a quo was irrational and arbitrary.
I shall return to these four arguments in some detail shortly.
The application was opposed again by the first, second, and fourth respondents.
The first respondent, without necessarily accepting that the Supreme Court may have erred in its approach, argued that the Constitution protects the right to access a legal system that is fair but not necessarily infallible.
The second respondent contended, that, since there was no constitutional issue before the Supreme Court, its decision is final and cannot found a cause of action for the intended application under section 85(1) of the Constitution.
The fourth respondent denied that the applicant had demonstrated that his rights had been breached as alleged or at all. On that basis, it argued that it was not in the interests of justice that the application for leave be granted.
In my view, the contention by the fourth respondent crystallises the only issue that falls for determination in this application. It is whether it is in the interests of justice that the applicant be granted leave to bring the intended application.
This is so because during oral argument, the first respondent formally abandoned his opposition to the application and placed himself in the hands of the Court.
This is the proper stance that he ought to have taken right from the beginning.
As an officer of this Court, it is not appropriate that the first respondent pitches tent with any of the litigants and lends the weight of his office in that corner.
No issue can thus arise from the contentions by the first respondent.
