Opposed
Application
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 Act which deals with stay
of court proceeding where the matter is within the jurisdiction of
the ICSZD.
The
applicant then mounted an application for stay of proceedings in
terms of section 7 of the 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 278 B-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 were 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
vs Secretary of the Public Service Commission
1988 (1) ZLR 257 (H) at 262B-F; Greenland J quoted with approval from
S.A.
Defence and Aid Fund and Anor v Minister of Justice
1967 (1) SA 31 (C), where Corbett J (as he then was) said at 34H-35D:
“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) at 203 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 an 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 Act.
Section
7 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 Act. He therefore applied for relief pending the
determination of related proceedings in the ICSZD to which the Act
applied.
The
second respondent was therefore enjoined to interpret section 7 of
the 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 on p19 of the cyclostyled judgement, 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 Act, is the same
as an application made for the referred 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 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 district 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 Act. There is no mention of section 7 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 judgement expression such as “no reasonable authority could
ever have come to it.” See Wednesbury
case; “He just did not apply his mind to the consideration of that
question” See Williams
case supra
p21.
This
is not meant to be an attack on the person of the second respondent
or his office.
This
might also support the applicant's contention, dealt with earlier
on in the judgement, that the opposing affidavit should have been
done by a representative of the Attorney General.
Having
found that the second respondent failed to apply his mind to the
issue before him, I will therefore make the following order:
(1)
The order of the court a
quo
be and is hereby set aside.
(2)
The matter is remitted to the court a
quo
for determination before a different magistrate.(3) That the
respondents pay costs on a legal practitioner/client scale, jointly
and severally, the one paying the other to be absolved.
Wintertons,
applicant's legal practitioners
Attorney
General's Office,
1st
respondent's legal practitioners
