Vexatious proceedings See PRACTICE AND PROCEDURE (Abuse of process) https://old.zimlii.org/taxonomy/term/10093/all en Mudyavanhu v Saruchera & Others (CCZ 3/19 , Constitutional Application No. CCZ 22/18) [2019] ZWCC 03 (27 February 2019); https://old.zimlii.org/zw/judgment/constitutional-court-zimbabwe/2019/3 <div class="field field-name-body field-type-text-with-summary field-label-hidden"><div class="field-items"><div class="field-item even"><p>Judgment No. CCZ 3/19</p> <p>Constitutional Application No. CCZ 22/18</p> <p><strong>REPORTABLE (3)</strong>  </p> <p> </p> <p><strong>EDWARD     MADYAVANHU</strong></p> <p><strong>v</strong></p> <p><strong>(1)     REGGIE     FRANCIS     SARUCHERA</strong></p> <p><strong>(2) GRANT  THORNTON  CAMELSA  CHARTERED  ACCOUNTANTS  ZIMBABWE</strong></p> <p><strong>(3)     CAIRNS     FOODS     LIMITED</strong></p> <p>  </p> <p><strong>CONSTITUTIONAL COURT OF ZIMBABWE</strong></p> <p><strong>HARARE, MAY 28, 2018 &amp; FEBRUARY 27, 2019</strong></p> <p> </p> <p>The applicant in person</p> <p><em>T Chagudumba</em>, with <em>T Chagonda,</em> for the respondents</p> <p> </p> <p><strong>IN CHAMBERS </strong></p> <p><strong>MALABA CJ</strong>: This is a chamber application for leave to appeal, condonation for late filing of the application for leave to appeal, and exemption from security for the respondents’ costs.</p> <p> </p> <p>The applicant was formerly employed by the third respondent. Sometime in 2004 he obtained judgment in the Labour Court, awarding him damages for unlawful termination of employment. The quantum of damages that he was granted came to ZW$26 076 252.00 after quantification by the Labour Court. However, before the third respondent could make any payment, it was placed under judicial management. The first respondent, who works for the second respondent, was appointed the Judicial Manager. The applicant then filed with the Master of the High Court a claim for his debt to be placed on the list of the third respondent’s other creditors. The claim was provisionally accepted, but later revoked at the instance of the first respondent. This was because, while the applicant’s debt was denominated in Zimbabwe dollars, he had lodged his claim in United States dollars amounting to USD3 057 199.00 without an order of court converting his Zimbabwe dollars claim to United States dollars. It seems that he had done the conversion of the amount himself.</p> <p> </p> <p>The applicant then approached the High Court seeking to be reinstated on the list of creditors. The specific order that he sought read as follows:</p> <p>“It is ordered that:</p> <p> </p> <ol> <li> </li> </ol> <p> </p> <ol> <li> </li> </ol> <p> </p> <ol> <li> </li> </ol> <p> </p> <ol> <li> </li> </ol> <p> </p> <ol> <li> </li> </ol> <p> </p> <ol> <li> </li> </ol> <p> </p> <p> </p> <p>A point <em>in limine</em> was raised by the first respondent on behalf of the second respondent to the effect that there was no legal basis for the applicant to sue the latter, as this was done solely for the reason that the first respondent worked for the second respondent. The High Court upheld the point <em>in limine</em> and also dismissed the whole application on the merits for the following reasons -</p> <ul> <li>At the time the applicant filed the application before the High Court, the third respondent was no longer under judicial management. The relief he sought could no longer bind the first respondent because he had ceased being thethird respondent’s Judicial Manager when it was removed fromjudicial management; and</li> </ul> <p> </p> <ol> <li> </li> </ol> <p>Aggrieved by the High Court’s decision, the applicant approached the Supreme Court on appeal, seeking the following relief:</p> <p>“It is prayed that:</p> <p> </p> <p>1.         The High Court judgment be set aside.         </p> <p> </p> <ol> <li> </li> </ol> <p> </p> <p>3.         Interest at the prescribed rate be paid on the claim amount from 3 November 2015, the day following the date of cancellation of the final judicial management order, to the date of final settlement.</p> <p> </p> <ol> <li> </li> </ol> <p> </p> <p>In the heads of argument filed in the court <em>a quo</em>, the respondents raised three points <em>in limine</em> in regard to the relief sought. Firstly, they contended that the applicant failed to pray for the success of the appeal, hence the relief sought was incompetent. Secondly, they argued that the relief which the applicant was seeking on appeal before the Supreme Court was different from that which he sought in the High Court. Thirdly, the respondents argued that the relief sought was fatally defective, in that the applicant sought an order for costs against all the respondents but did not seek any substantive relief against the first and second respondents.</p> <p> </p> <p>In response to the points <em>in limine</em>, the applicant, in his heads of argument, argued that there is no provision in the Rules of the Supreme Court, 1964 which requires a party to expressly state whether or not the appeal should succeed, as the Judges can themselves simply state that the appeal succeeds or not. He explained that the intention that the appeal succeeds is apparent from the very act of appealing.</p> <p> </p> <p>With regard to the allegation that he was seeking what he did not seek in the High Court, the applicant’s position was that only the method of enforcement had changed but he still sought the same relief. On the point that he was not seeking any substantive relief against the first two respondents except for costs, the applicant argued that it is clear from his papers that the first two respondents were liable to him under delict for the third respondent’s failure to pay his debt.</p> <p> </p> <p>The Supreme Court found that there was merit in the respondents’ points <em>in limine</em>, in particular that the applicant’s notice of appeal did not satisfy the provisions of r 29 of the Rules of the Supreme Court, 1964. The appeal was dismissed and not struck off the roll. In explaining its decision in <em>Edward Madyavanhu</em> v <em>Reggie Francis Saruchera and Two Ors</em> SC 75/17 the court stated at p 9 of the cyclostyled judgment as follows:</p> <p>“However, in this case, the court found that the appeal was not only incurably defective but wrong and bad in law. The appeal could therefore not properly be struck off the roll because the appellant had no avenue, legally or procedurally, to follow in case he was inclined to bring the same appeal before this Court. It is emphasised in this respect that the appellant could not have secured the relief that he sought in the court below from the first respondent, for the simple reason that he had ceased to be the Judicial Manager of the third respondent, which in turn had ceased to be a company under judicial management. There was, therefore, no longer a list on which the appellant’s claim could be included. In addition to this, the second respondent was improperly sued from the beginning because it was not an interested party in the dispute, it being the first respondent’s employer.”</p> <p> </p> <p>Aggrieved by the decision, the applicant filed an application in the Constitutional Court (“the Court”). He referred to the application as a “Chamber application for condonation for late filing of the application for leave to appeal and exemption on security for the respondents’ costs”. A chamber application for leave to appeal was also included in the consolidated application.  It is not indicated in terms of which provision the applicant made the three applications. </p> <p>The applicant’s allegation is that the Supreme Court dismissed his appeal on the basis that his claim for unpaid salaries, benefits and severance pay had been revoked and that the court <em>a quo</em> did not specify the authority or give any details of the revocation. He argued that the conduct of the court <em>a quo</em> was <em>ultra vires</em> the Constitution, as the decision deprived him of property on the basis of a revocation that was void. In support of the application, he filed a founding affidavit in which he set out that he was seeking condonation for the late filing of the application for leave to appeal against the judgment in <em>Edward Madyavanhu</em> v <em>Reggie Francis Saruchera and Two Ors</em> <em>supra</em> and an exemption from furnishing security for the respondents’ costs of appeal. In the same founding affidavit, he also set out the reasons for the delay in filing the application for leave to appeal and the basis on which the appeal had prospects of success.  </p> <p>At the hearing, the Court drew the attention of the applicant to the question whether he had the right of appeal to the Court in terms of the Constitutional Court Rules SI 61/2016 (“the Rules”).  The applicant submitted that he had a right of appeal as the decision of the Supreme Court ought to be set aside on the ground that it was a nullity as the case was not properly heard by the Supreme Court. He submitted that the decision of the court <em>a quo</em> was based on a revocation, which revocation was a nullity. He argued that he had a right of appeal under s 69(2) of the Constitution, as read with r 22 of the Rules. He acknowledged that <em>Chapter 4</em> of the Constitution provided for fundamental rights and proceeded to argue that the Government has an obligation to protect his property rights and the decision of the court <em>a quo </em>fell short of doing so.</p> <p> </p> <p>In response, the respondents’ counsel submitted that it was trite that for one to appeal against a decision of the Supreme Court there must have been a constitutional matter for determination by that court. He argued that it was clear from the decision of the court <em>a quo</em> that the notice of appeal in terms of which he had sought to institute an appeal in that court was ruled to be fatally defective. He further indicated that the applicant never raised any constitutional issues in the court <em>a quo</em>, either in his written or oral submissions. He argued that there was no legal basis for what the applicant was seeking to do.</p> <p> </p> <p>The applicant has filed an application for leave to appeal, condonation for late filing of the application for leave to appeal, and exemption from security for the respondents’ costs. The application is not provided for in the Rules. The subject matters and the reliefs sought are dealt with separately by the Rules - an application for leave to appeal is provided for in r 32; an application for condonation and extension of time within which to appeal is provided for in r 35; and security for costs is provided for in r 42 of the Rules.</p> <p> </p> <p>            An application for leave to appeal to the Court from a decision of a subordinate court is provided for in r 32(2) of the Rules. Rule 32(2) provides as follows:</p> <p>“(2) A litigant who is aggrieved by the decision of a subordinate court on a constitutional matter only, and wishes to appeal against it to the Court, shall within fifteen days of the decision, file with the Registrar an application for leave to appeal and shall serve a copy of the application on the other parties to the case in question, citing them as respondents.” (My emphasis)</p> <p> </p> <p>            A person has a right to appeal against a decision of a subordinate court on a constitutional matter only. A decision of a subordinate court on a non-constitutional issue is unappealable because the Court has no jurisdiction to review such a decision. The purpose of the procedure of an application for leave to appeal provided for in r 32(2) of the Rules is to show that the Court has jurisdiction as provided for in the Constitution to hear and determine the appeal. In other words, the purpose of the procedure is to ensure that the applicant has a right of appeal to the Court against the decision of the subordinate court.</p> <p> </p> <p>Section 167 of the Constitution makes it clear that the Constitutional Court is the highest court on all constitutional matters. Section 176(1)(b) of the Constitution provides that the Court decides only constitutional matters and issues connected with decisions on constitutional matters. Section 332 of the Constitution goes further to define a constitutional matter as a matter in which there is an issue involving the interpretation, protection or enforcement of the Constitution. The Court is a specialised institution with a narrowly prescribed jurisdiction imposing on a person seeking access to it the duty to prove that the matter sought to be brought for determination falls within its jurisdiction.</p> <p> </p> <p>In <em>Lytton Investments (Private) Limited</em> v <em>Standard Chartered Bank Zimbabwe Limited &amp; Anor</em> CCZ 11/18, at p 9 of the cyclostyled judgment, the Court said:</p> <p>“The Court is a specialised institution, specifically constituted as a constitutional court with the narrow jurisdiction of hearing and determining constitutional matters only. It is the supreme guardian of the Constitution and uses the text of the Constitution as its yardstick to assure its true narrative force. It uses constitutional review predominantly, albeit not exclusively, in the exercise of its jurisdiction.”</p> <p> </p> <p>            Rule 32(3)(c) of the Rules requires that an application for leave to appeal to the Court must contain or have attached to it a statement setting out clearly and concisely the constitutional matter raised in the decision sought to be appealed against. The founding affidavit supporting the application must verify the fact that the cause of action arises from a decision of the subordinate court concerned on a constitutional matter or an issue connected with a decision on a constitutional matter.</p> <p> </p> <p>            The effect of the failure to meet the requirements of the procedure of an application for leave to appeal is that the person has no right of appeal from the decision of the subordinate court.</p> <p> </p> <p>In <em>Rushesha &amp; Ors v Dera &amp; Ors</em> CCZ 24/17, gwaunza jcc (as she then was) highlighted the effect of failure to meet the requirements of the procedure of an application for leave to appeal to the Court. At p 10 of the cyclostyled judgment her ladyship said:</p> <p> </p> <p>“I therefore find no merit in the appellant’s unsupported proposition. It evinces a misconception as to the nature and essence of an appeal. It also constitutes an attempt to turn this Court into a general court of appeal. This, in my view, is unsupportable. Specific provisions of the Constitution on the jurisdiction of both the Supreme Court and this Court prescribe what matters can properly be brought, on appeal, to this Court. In addition to this, a line of recent decisions of this Court have decisively laid down the law, based on sound authorities, and on the interpretation of relevant provisions of the Constitution, in particular ss 167(1), 169(1) and 167(5). It is noted that the appellants partially premised this ‘appeal’ on s 167(5). In short, these authorities have ruled that no appeal lies to the Constitutional Court from a decision of the Supreme Court that is not on a constitutional issue. None of the provisions and authorities alluded to provide for ‘appeals’ to this Court against the effect of a judgment properly arrived at by an inferior court.”</p> <p> </p> <p><em>In casu</em> there was no compliance with the requirements of the procedure of application for leave to appeal to the Court. No statement setting out clearly and concisely the constitutional matter raised in the decision of the Supreme Court was filed with the application. The founding affidavit did not make any reference to a constitutional matter having been raised in the decision of the Supreme Court.</p> <p> </p> <p>In <em>The Cold Chain (Private) Limited t/a Sea Harvest</em> v <em>Robson Makoni</em> CCZ 8/2017, the Court stated at pp 3-4 of the cyclostyled judgment as follows:</p> <p>“Rule 32(3)(c) of the Constitutional Court Rules requires that the application for leave to appeal should contain or have attached to it ‘a statement setting out clearly and concisely the constitutional matter raised in the decision’. In other words, there must have been a constitutional matter raised in the subordinate court by the determination of which the dispute between the parties was resolved by that court. 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 the resolution of the dispute between the parties. See <em>Nyamande &amp; Anor v Zuva Petroleum </em>CCZ 8/15.</p> <p>Under s 332 of the Constitution a constitutional matter is one in which there is an issue involving the interpretation, protection or enforcement of the Constitution. Absence of an issue raised in the proceedings in the subordinate court requiring the interpretation, protection or enforcement of a provision of the Constitution in its hearing and determination would invariably be sufficient evidence of the fact that no constitutional matter arose in the subordinate court.” (My emphasis)</p> <p> </p> <p>In <em>Chiite and Others</em> v <em>The Trustees of the Leonard Cheshire Homes Zimbabwe Central Trust </em>CCZ 10/17 the Court remarked at p 5 of the cyclostyled judgment that it would not be in the interests of justice for the Court to entertain argument on matters over which the Constitution has provided in clear and unambiguous language that the Supreme Court is the final court of appeal.</p> <p> </p> <p><em>In casu</em> no constitutional issue was before the court <em>a quo</em>. The issue before the court <em>a quo</em> was whether or not the document filed as a notice of appeal complied with the Rules of the Supreme Court. The determination of the question required an examination of the contents of the notice of appeal against the requirements of a valid notice of appeal. Even if the requirements of a valid notice of appeal had been complied with, the judgment of the High Court against which the appeal would have been noted could not have given rise to grounds that raised a constitutional matter for decision by the court <em>a quo</em>.</p> <p> </p> <p>            The inevitable finding following consideration of the basis of the application is that the court <em>a quo</em> decided non-constitutional issues. The applicant has no right of appeal to the Court in the circumstances.</p> <p> </p> <p>In <em>Nyamande and Another</em> v <em>Zuva Petroleum </em>2015 (2) ZLR 351 (CC) at 354B-C ziyambi jcc said:</p> <p> </p> <p>“Having considered the submissions by the parties I agree with Mr <em>Chagonda</em> that the applicants have not established any right to approach the Constitutional Court by way of appeal. Section 167(5) relates to rules of procedure regulating the manner of approach to this Court on appeal from lower courts. It does not confer a right to appeal to the Constitutional Court on a litigant who has no right of appeal. … Failing that, a right of appeal could only arise where the Supreme Court makes a decision on a constitutional matter. …</p> <p> </p> <p>Since no constitutional issue was determined by the Supreme Court, no appeal can lie against its decision … . It follows that the applicants have not established a right of appeal to the Constitutional Court and any appeal filed in this matter by the applicants is a nullity as it conflicts with the provisions of s 169(1) of the Constitution.”<em> (</em>My emphasis)</p> <p> </p> <p>A similar finding was made by gwaunza jcc (as she then was) in the <em>Rushesha</em> case <em>supra</em>. Discussing the import of s 169(1) of the Constitution, her ladyship at pp 10-11 of the cyclostyled judgment had this to say:</p> <p>“The import of this provision needs no elaboration. Only where the Supreme Court determines a constitutional issue, may one appeal to this Court for a final determination.  Because the Supreme Court in this matter did not determine any constitutional issue, the decision it rendered was final and not appealable. Since courts are not expected to, and invariably do not, render judgments that cannot be put into effect - which are in other words a <em>brutum fulmen</em> - a purported appeal against the effect of a judgment of the Supreme Court on a non-constitutional issue is in reality an appeal envisaged in s 169(1). That is, a final judgment that is not appealable no matter how well disguised any such purported appeal may be. It does not escape notice that in seeking to have the Supreme Court judgment overturned under the guise of an appeal to this Court, the appellants are, in effect, attempting to revive, and reinstate, the judgment of the High Court, which was in their favour.  What is sought would be both manifestly irregular, and bad at law.”</p> <p> </p> <p> </p> <p><strong>DISPOSITION</strong></p> <p>In the result, the following order is made:</p> <p>“The application is dismissed with costs.”</p> <p> </p> <p> </p> <p> </p> <p>            <strong>GARWE JCC:</strong>      I agree</p> <p>             <strong>MAKARAU JCC:</strong>     I agree</p> <p><em>Atherstone and Cook</em> Legal Practitioners, respondents’ legal practitioners</p> <p> </p> </div></div></div><div class="field field-name-field-download field-type-file field-label-above"><div class="field-label">Download:&nbsp;</div><div class="field-items"><div class="field-item even"><span class="file"><img class="file-icon" alt="File" title="application/vnd.openxmlformats-officedocument.wordprocessingml.document" src="/modules/file/icons/x-office-document.png" /> <a href="https://old.zimlii.org/zw/judgment/files/constitutional-court-zimbabwe/2019/3/2019-zwcc-03.docx" type="application/vnd.openxmlformats-officedocument.wordprocessingml.document; length=40713">2019-zwcc-03.docx</a></span></div><div class="field-item odd"><span class="file"><img class="file-icon" alt="PDF icon" title="application/pdf" src="/modules/file/icons/application-pdf.png" /> <a href="https://old.zimlii.org/zw/judgment/files/constitutional-court-zimbabwe/2019/3/2019-zwcc-03.pdf" type="application/pdf; length=136267">2019-zwcc-03.pdf</a></span></div></div></div><span class="vocabulary field field-name-field-flynote-sync-local field-type-taxonomy-term-reference field-label-above"><h2 class="field-label">ZimLII Flynote:&nbsp;</h2><ul class="vocabulary-list"><li class="vocabulary-links field-item even"><a href="/tags-local/court">COURT</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/vexatious-proceedings-see-practice-and-procedure-abuse-process">Vexatious proceedings See PRACTICE AND PROCEDURE (Abuse of process)</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/practice-and-procedure">PRACTICE AND PROCEDURE</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/application-practice-and-procedure">Application (PRACTICE AND PROCEDURE)</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/court-application">court application</a></li></ul></span><div class="field field-name-field-cases-considered field-type-node-reference field-label-above"><div class="field-label">Cases considered:&nbsp;</div><div class="field-items"><div class="field-item even"><a href="/zw/judgment/supreme-court-zimbabwe/2017/75">Mudyavanhu v Saruchera &amp; Others (Judgment No. SC 75/17, 1 Civil Appeal No. SC 680/16) [2017] ZWSC 75 (06 July 2017);</a></div><div class="field-item odd"><a href="/zw/judgment/constitutional-court-zimbabwe/2018/11">Lytton Investments (Private) Limited v Standard Chartered Bank Zimbabwe Limited &amp; Anor (CCZ 11/18, Constitutional Application No. CCZ 54/17) [2018] ZWCC 11 (20 November 2018);</a></div><div class="field-item even"><a href="/zw/judgment/constitutional-court-zimbabwe/2017/8">The Cold Chain (Pvt) Ltd. v Makoni (CCZ 8/2017 CONST. APPLICATION NO. CCZ 79/16) [2017] ZWCC 8 (17 February 2017);</a></div><div class="field-item odd"><a href="/zw/judgment/constitutional-court-zimbabwe/2016/10-1">Chiite &amp; 7 Others v The Trustees of the Leonard heshire Homes Zimbabwe Central Trust (CCZ 10/17, Constitutional Application No. CCZ5/15) [2017] ZWCC 10 (23 November 2016);</a></div></div></div> Tue, 09 Apr 2019 11:50:13 +0000 admin 9296 at https://old.zimlii.org Muhala & 50 Others v Mukorera (CCZ 2/19, CCZ 118/13) [2019] ZWCC 02 (18 February 2019); https://old.zimlii.org/zw/judgment/constitutional-court-zimbabwe/2019/2 <div class="field field-name-body field-type-text-with-summary field-label-hidden"><div class="field-items"><div class="field-item even"><p> </p> <div> <p><strong>Judgment No.CCZ 2/19</strong></p> <p><strong>Case No. CCZ 118/13</strong></p> </div> <p> </p> <p>REPORTABLE    (1)</p> <p>ERIZA     MUHALA     AND     50     OTHERS<br /> v<br /> PATRICK     T.     MUKORERA</p> <p> CONSTITUTIONAL COURT OF ZIMBABWE<br /> CHIDYAUSIKU CJ, MALABA DCJ, ZIYAMBI JCC,<br /> GWAUNZA JCC, GARWE JCC, GOWORA JCC,<br /> HLATSHWAYO JCC, PATEL JCC &amp; GUVAVA JCC<br /> HARARE, JUNE 4, 2014 &amp; FEBRUARY 18, 2019<br />  <br /> T. Maanda, for the applicants<br /> P. Takaidza, for the respondent</p> <p> GWAUNZA DCJ:<br /> [1]    This is a purported referral to this Court in terms of s 175 (4) of the Constitution of Zimbabwe. The matter was argued before this Court on June 4, 2014. Judgment having been reserved, it is a matter of regret that unforeseen circumstances resulted in the delay in rendering this judgment.</p> <p>    BACKGROUND FACTS<br /> [2]    The respondent is the holder of an offer letter in respect of subdivision 9 of Reubine of Clare Farm in Manicaland granted to him by the Minister of Lands and Rural Resettlement. The farm was offered to the respondent on 6 June 2010. Before the farm was acquired by the State and offered to the respondent, it was owned by a certain Mr Tiny Van Resberg. After its acquisition, the farm was divided into nine (9) subdivisions. The respondent’s offer letter relates to subdivision 9.</p> <p>[3]    The applicants were all employees of the said Mr Tiny Van Resberg and by virtue of such employment, lived at the farm until he left following its acquisition and re-allocation to the respondent and eight others. The applicants and their families continued to live on the farm (effectively on the subdivision allocated to the respondent), and those with children have them enrolled at Clare Primary School. Some had been employed by Mr Van Resberg from 1982 until the time he left. It is common cause that, apart from accommodation, Mr Van Resberg provided them with small pieces of land where they conducted their subsistence farming.                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                 </p> <p>[4]    After the respondent obtained the offer letter in respect of his subdivision, he took occupation thereof in September 2010. The applicants remained in occupation of the same subdivision. The respondent then gave all the applicants notice to vacate the farm in August 2012 but the applicants did not comply. Eventually, he filed a court application for the eviction of the respondents in the Mutare Magistrates’ Court. This was on 10 September 2013.</p> <p>[5]    The applicants filed a notice of opposition to the application. With their notice of opposition however, they did not file any affidavit responding to the allegations in the application. They instead raised a point in limine relating to the jurisdiction of the magistrates’ court to deal with the dispute. In that statement, they alleged that their employment status had never been terminated and that in terms of s 16 of the Labour Act, they remained employees of Reubine Farm entitled to their terminal benefits in terms of the Labour (Terminal Benefits and Entitlements of Agricultural Employees Affected by Compulsory Acquisition) Regulations 2002. Despite objecting to the magistrate court’s jurisdiction, the applicants nevertheless notified the respondent of their intention to file a request for referral to the Constitutional Court for the resolution of a number of constitutional questions.</p> <p>[6]    The applicants thereafter filed an application for referral in terms of s 175 (4) of the Constitution before the magistrates’ court, on 18 October 2013. In that application, they tendered evidence concerning their perceived entitlement to the land in question, which should properly have been contained in an opposing affidavit in the main issue before the magistrate. Be that as it may, the magistrate entertained the application. In it the applicants claimed they had been in occupation of the farm since 1982 and were offering labour to the former farm owner, Mr Van Resberg. The first applicant, for example, had been in occupation of the farm since 1982 and had worked on the farm for Mr Van Resberg ever since. The former owner gave the applicants one and a half hectares of land for their own subsistence farming and they had been growing maize and other crops like sweet potatoes on the land. The applicants feared that if they were evicted, their ‘fundamental rights’ would be breached. They were afraid of being evicted and thrown into the open exposing them to the ‘indignity’ of being at the mercy of ‘dangerous agents of weather which include rains, the wind, storms, lightning, heat, the cold nights, the dangers of wild animals, reptiles and crawling creatures’. The applicants alleged that they were provided with accommodation as a direct result of their employment and they had not resigned from such employment. They further alleged that it was not the intention of the land reform programme to disempower former black Zimbabwean farm labourers who worked under the previous land occupation regime.</p> <p>[7]    The applicants in addition expressed the view that their employer had not properly terminated their employment contracts in terms of labour law and the eviction would take away their economic wherewithal as well as the social amenities of life that they had enjoyed at the farm. They also alleged that the intended eviction would violate s 28 of the Constitution, and sought referral of the following questions to this Court for resolution:<br /> 1.    Whether the eviction of the respondents from Reubine farm would be in breach of the following fundamental rights of respondents as enshrined in the Constitution of Zimbabwe (Amendment No. 20)<br /> (a)    In breach of s 28 of the Constitution of Zimbabwe<br /> (b)    In breach of s 51 of the Constitution of Zimbabwe<br /> (c)    In breach of s 72(7) of the Constitution of Zimbabwe<br /> (d)     In breach of s 64 of the Constitution of Zimbabwe</p> <p>2.    Further whether the eviction of respondents without them being granted alternative accommodation is in breach of the Founding Principles s 28 of the Constitution of Zimbabwe.</p> <p> <br /> [8]    The respondent opposed the request for referral, stating that his land allocation was in respect of subdivision 9 of the farm. He stated that the applicants were employed by Mr Van Resberg who occupied the whole farm, not just the subdivision that was offered to him by the Minister of Lands. He further alleged that the applicants worked for Mr Van Resberg and since he had left, they no longer had any right to remain on the farm. He further submitted that he did not inherit Mr Van Resberg’s farming operations and denied violating any of their rights by virtue of the order that he sought against the applicants. Given that he never employed them he bore no obligation to provide them with accommodation. In any event, he alleged, accommodation by reason of employment is not permanent in nature, as it is tied to the employment relationship.</p> <p>[9]    The respondent also opposed the request for referral to this Court on the basis that s 28 of the Constitution binds the State and all institutions and agencies of government only, not individuals like him. Further, that if the applicants wanted land of their own, they should approach the relevant authorities for land allocation in their own right. He averred that in terms of the lease agreement between him and the State, he was not allowed to cede his rights therein to third parties. Lastly, the respondent raised the point that the applicants were in any case, illegal occupiers of the farm since 2010 as they possessed neither an offer letter, land settlement lease or a permit as prescribed by the Gazetted Land (Consequential Provisions) Act [Chapter 20.28]. Further, that s 72(6) of the Constitution of Zimbabwe as read with s 3(2) of [Chapter 20.28] just cited, explicitly provides that a former owner or occupier who does not cease to occupy acquired land on the expiry of the period prescribed, in this case 90 days, shall be guilty of an offence. All that he sought to do was exercise his rights as a re-settled farmer by evicting those who continued to occupy it in open defiance of the law and the Constitution. The occupiers had thus been stripped of all rights they may have had to the land in question, including their living quarters, whose continued occupation is ‘criminalised’ by s 3(3) of the Gazetted Land (Consequential Provisions) Act [Chapter 20.28].    </p> <p>Accordingly, the respondent prayed for the request for referral to be dismissed on the basis that it was frivolous and vexatious.</p> <p>[10]    The presiding magistrate however found for the applicants. She summarised the facts as alleged by the parties and stated as follows in her short judgment;<br />     “It is my well-considered opinion that the application for referral to the Constitutional Court is not frivolous and vexatious but genuinely found(sic) on the respondent’s fear of their rights being violated.”<br />     </p> <p>THE ISSUE<br />     <br /> Whether the matter was properly referred to this Court.</p> <p>[11]    The matter came before this Court as a purported referral in terms of s 175(4), which provides as follows:<br /> “(4) If a constitutional matter arises in any proceedings before a court, the person presiding over that court may, and if so requested by any party to the proceedings must, refer the matter to the Constitutional Court unless he or she considers the request is merely frivolous or vexatious.<br /> (my emphasis)</p> <p>The ‘proceedings’ before the court a quo at the time the application for referral was made consisted only of the founding papers related to the respondent’s application for eviction of the applicants in casu. Without any opposing papers having been filed, the court was presented with an application, which it entertained and granted, for referral of certain questions to this Court. The question as to what constitutes ‘proceedings’ for purposes of s 24 (2) of the former constitution (s 175) (4) of the current Constitution) was authoritatively answered in Tsvangirai v Mugabe &amp; Anor-2006(1) ZLR 148(S) at 158, where the court held as follows:<br /> “Section 24(2) of the Constitution only applies when there is a question arising in the proceedings in the High Court or in the court subordinate to the High Court.<br /> … . The words ‘in any proceedings in the High Court’ mean proceedings that have come to be or have been instituted in the High Court …   .<br /> … . There are proceedings in being in the High Court from the moment an action is commenced or an application made until termination of the matter in dispute, or withdrawal of the action or application.”<br />     <br /> When the above is applied to the circumstances of this case, and by parity of reasoning, there can be no doubt that the questions referred to this Court properly arose during proceedings in the court a quo. What remains to be determined is whether or not the magistrate should have referred the matter to this Court at all.</p> <p>[12]    The applicants were faced with an application for their eviction. In terms of laid down procedure they ought to have opposed that application in the manner prescribed in the Magistrates’ Court Rules. They ought, in particular, to have filed an affidavit in opposition to the application in terms of Order 22 r 2 subrule 3 (b) of the Magistrates’ Court Rules which provides as follows:<br /> “Statement in response to application</p> <p>(1)    The respondent may, not less than forty-eight hours before the time stated in such application, deliver a statement in writing in which he either-<br />             (a)     consents to the order mentioned in the application; or<br />             (b)     opposes the granting of such order.<br />     (2)     Where the respondent consents to the order-<br /> (a)     the order shall be deemed to be granted<br /> from the time mentioned in the application;<br />             (b)     it shall not be necessary for either party to appear.<br />     (3)     Where the respondent opposes the order, his     statement shall-<br /> (a)     set out the grounds on which he opposes the order;<br /> (b)     if he denies the facts set out in the application or seeks to place additional facts before the court, be supported by affidavit.<br /> (my emphasis)</p> <p> [13]    The applicants clearly wished to deny the facts set out in the application for eviction and to place additional facts before the court. They were therefore required to lay out the factual basis for their defence in an opposing affidavit and thereafter request the magistrate to refer an identified constitutional question arising therein, to this Court. At that stage, it would have been shown that the determination of the constitutional question would be the basis of their defence to the application for eviction, in the Magistrates’ Court. This they did not do.  For this reason, the basis for the referral was not apparent on the papers before the court.<br />    <br /> [14]    A perusal of the presiding magistrate’s ruling shows that she did not make any findings of fact in referring the matter to this Court.  That is a serious misdirection.  A constitutional question does not arise in a vacuum. It is an issue that arises from the facts of a particular matter. Put differently, for the court to find that there is a constitutional matter that warrants a referral to this Court, the question must arise from the facts before the referring court. This is particularly important considering that there are many instances where an analysis of the facts would make it palpably apparent that no constitutional matter would have arisen.  Factual findings and their relevance to the alleged constitutional violation are crucial in the determination of whether the request for referral is frivolous or vexatious.  In Martin vs Attorney-General &amp; Anor 1993 (1) ZLR 153 (SC) 156H-157A the court had the following to say:<br />         “Faced with the request to refer the question raised on the applicant’s behalf to         the Supreme Court, the magistrate had no option but to act in accordance             therewith, unless of the opinion that the question was, as characterised in s 24(2)         of the     Constitution, “merely frivolous or vexatious”.  In order to be satisfied         that it was not, he obviously had to consider, to some extent, the merits of the         argument.” (my emphasis)</p> <p>[15]    The applicants categorically stated in their ill-conceived application that they were employed by Mr Van Resberg and that they were given accommodation at the farm on the basis of such employment. They alleged that their employment had not been terminated hence they could not be evicted from the farm. In this respect the applicants stated that they were employed by Mr Van Resberg and not the farm. Before referring the matter to this Court, the magistrate ought to have satisfied herself that there was indeed a relationship between the farm and the applicants. In the applicants’ papers before the court a quo, it was common cause that the applicants were employed by the farmer as farm labourers. No attempt was made by the magistrate to establish the relationship between the applicants, the land and Mr Van Resberg before determining the application, in order to understand and contextualise the request for referral. Had the magistrate made the effort to call evidence on the required facts, and to make specific findings of fact in that respect, it would have been apparent that the only claim that the applicants had to the land was through their employment with Mr Van Resberg. Since Mr Resberg had ceased to occupy the farm, it fell to reason that such employment had come to an end.</p> <p>[16]    The magistrate therefore, ought to have, on this basis, considered whether there was any basis for referral of the matter to this Court. The applicants had, under the law applicable, lost the right to continue staying on the farm. In this regard, the findings of the Court in Dhlamini and another v the State CCZ 1/14 become apposite.</p> <p>It found in part:<br />         “Section 24(2) of the Constitution clearly precludes     a situation where the             question is referred to the Supreme Court in respect of a matter which is no         longer necessary for resolution by the lower court in the determination of the         dispute before it. If that were to be permitted it would mean that the             Supreme Court would not be rendering a decision on the question as a court of         first instance in the exercise of original jurisdiction. It was no longer             necessary for the High Court to place the applicants     on remand and ipso facto         to consider whether or not placing them on remand was likely to violate their         right to personal liberty, the decision to place the applicants on remand having         already been made by the magistrates’ court. The applicants were before the         High Court for trial on the basis of the decision that there was a reasonable         suspicion of their having committed the offences with which they were             charged.”</p> <p>[17]    The facts in this case are almost on all fours with the facts in Yoramu and others v The State CCZ 2/16. The only difference is that while in this case the respondent elected to sue the applicants for eviction, in the Yoramu case, the decision had been taken to prosecute the accused persons under s 3 (2) (a) as read with s 3 (3) of the Gazetted lands (Consequential Provisions) Act. This Court, on referral of the matter from the magistrates’ court, was ultimately tasked with dealing with the question of whether the prosecution of the applicants in the magistrates’ court under s 3 (2) (a) as read with s 3 (3) of the Gazetted Lands Act constituted a violation of their right to the protection of the law, GARWE JCC found:<br />         “Even on the merits, it is clear that there was no transfer of an undertaking         following the acquisition of the farm and its subsequent allocation to a             number of beneficiaries. The Constitution itself makes it clear that anyone who         possesses or occupies     gazetted land without lawful authority may be guilty         of a criminal offence. What constitutes lawful authority is defined in the Act.         The applicants have no such authority. In these circumstances, there can             be no question of the applicants having remained employees of, or the farming         operations having been transferred to, the new beneficiaries.”</p> <p>[18]    The Magistrate in casu was dealing with an application for eviction. The question before him was therefore whether the applicants had the authority to remain in occupation of the farm, in other words, did they have a valid defence to the eviction claim? The dispute was between the applicants and the respondent as between themselves. In this regard, the magistrate ought to have considered that question only. The magistrate, knowing that it was an application for eviction, ought to have satisfied herself that the alleged constitutional question would, if successful, clothe the applicants with lawful authority. It could not. The applicants simply did not have lawful authority to continue staying on the farm. Accordingly, the Constitutional Court cannot give them what is not provided for in the law.<br />  <br /> Even if it were to be found that the applicants were entitled to land, the fact remains that they were illegally occupying the land in question. The dispute as it properly stood, without the perceived constitutional aberrations, could have been adequately resolved by reference to the common law or the Gazetted Lands (Consequential Provisions) Act.</p> <p>[19]    With respect to occupation of agricultural land compulsorily acquired for resettlement purposes, a person can only settle on the farm by virtue of lawful authority. Lawful authority is defined in s 2 of the Gazetted Lands (Consequential Provisions) Act as follows:<br /> “lawful authority” means –<br /> (a)    an offer letter; or<br /> (b)    a permit; or<br /> (c)    a land settlement lease;”    <br />     <br /> Even though this case did not come through the criminal route, it would be ill conceived to ignore the provisions of s 3 of the Gazetted Lands (Consequential Provisions) Act [Chapter 20:28]. The provision reads:<br />     “3 Occupation of Gazetted land without lawful authority   <br /> (1)    Subject to this section, no person may hold,     use or occupy Gazetted         land without lawful authority.</p> <p>(2)    Every former owner or occupier of Gazetted land                                    <br /> (a)    Referred to in para (a) of the<br /> definition of “Gazetted land” in s 2 (1), shall cease to occupy, hold or use that land forty-five days after the fixed date, unless the owner or occupier is lawfully authorised to occupy, hold or use that land;<br /> (b)    referred to in para (b) of the definition of “Gazetted land” in s 2 (1), shall cease to occupy, hold or use that land forty-five days after the date when the land is identified in accordance with s 16B (2)(a)(iii) of the Constitution, unless the owner or occupier is lawfully authorised to occupy, hold or use that land:<br /> Provided that –<br /> (i)    the owner or occupier of that land referred to in para (b) may remain in occupation of his or her living quarters on that land for a period of not more than ninety days after the date when the land is identified;<br /> (ii)    the owner or occupier shall cease to occupy his or her living quarters after the period referred to in proviso(i).”  </p> <p>[20]    A constitutional question worthy of referral is a question that is necessary to be answered by the Constitutional Court in order that the referring court may dispose of the dispute before it.  In this regard, BARON JA in Mandirwhe vs Minister of State 1986(1) ZLR 1 (S) 5E-H reasoned:<br />          “The basis on which we declined to entertain this reference was that, since the         determination of the question of an alleged contravention of the                 Declaration of rights was unnecessary for the purposes of the order the learned         Judge had decided to make, it was not competent for him to refer that             question to this Court.”</p> <p>In order to find that the question that is raised is one that is relevant for the resolution of the main dispute between the parties, the court has to be informed by findings of fact.  It is from those findings that the court will consider whether the question raised is consistent with the proven facts. In referring the questions to this Court without following the procedure laid out above, the court a quo grossly misdirected itself.</p> <p>[21]    The question referred therefore had no bearing on the dispute that stood to be resolved between the parties in the magistrates’ court. Once a dispute can be resolved without recourse to the Constitution, no constitutional questions would have arisen and the matter in that form would not be properly before the Constitutional Court. (See Magurure &amp; 63 others v Cargo Carriers International Hauliers (Pvt) Ltd t/a Sabot CCZ 15/16. Berry &amp; another v Chief Immigration Officer &amp; another CCZ4/16.</p> <p>Had the magistrate considered the request for referral properly, she would have found that for these reasons, such request was frivolous and vexatious.</p> <p>[21]     After all is considered, I find that the magistrate grossly misdirected herself in acceding to the request for referral. The referral is therefore not properly before this Court.</p> <p>    In the result, I make the following order:<br /> The matter be and is hereby struck off the roll.</p> <p>     CHIDYAUSIKU CJ:        I agree</p> <p>    MALABA   DCJ:            I agree</p> <p>    ZIYAMBI JCC:            I agree</p> <p>    GARWE JCC:            I agree</p> <p>    GOWORA JCC:            I agree</p> <p>    HLATSHWAYO JCC:        I agree</p> <p>    PATEL JCC:                I agree</p> <p>    GUVAVA JCC:            I agree</p> <p>Maunga Maanda &amp; Associates applicants’ legal practitioners<br /> Takaidza &amp; Mubata respondent’s legal practitioners</p> <p> </p> </div></div></div><div class="field field-name-field-download field-type-file field-label-above"><div class="field-label">Download:&nbsp;</div><div class="field-items"><div class="field-item even"><span class="file"><img class="file-icon" alt="File" title="application/vnd.openxmlformats-officedocument.wordprocessingml.document" src="/modules/file/icons/x-office-document.png" /> <a href="https://old.zimlii.org/zw/judgment/files/constitutional-court-zimbabwe/2019/2/2019-zwcc-02.docx" type="application/vnd.openxmlformats-officedocument.wordprocessingml.document; length=42144">2019-zwcc-02.docx</a></span></div><div class="field-item odd"><span class="file"><img class="file-icon" alt="PDF icon" title="application/pdf" src="/modules/file/icons/application-pdf.png" /> <a href="https://old.zimlii.org/zw/judgment/files/constitutional-court-zimbabwe/2019/2/2019-zwcc-02.pdf" type="application/pdf; length=277117">2019-zwcc-02.pdf</a></span></div></div></div><span class="vocabulary field field-name-field-flynote-sync-local field-type-taxonomy-term-reference field-label-above"><h2 class="field-label">ZimLII Flynote:&nbsp;</h2><ul class="vocabulary-list"><li class="vocabulary-links field-item even"><a href="/tags-local/constitutional-law">CONSTITUTIONAL LAW</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/court">COURT</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/magistrates-court-see-magistrates-court">Magistrates court See MAGISTRATES COURT</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/rules-court">Rules of court</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/vexatious-proceedings-see-practice-and-procedure-abuse-process">Vexatious proceedings See PRACTICE AND PROCEDURE (Abuse of process)</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/land">Land</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/allocation-land-appropriated-original-owner-resettlement">allocation of land appropriated from original owner for resettlement</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/holder-offer-letter-respect-land">holder of offer letter in respect of land</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/occupation-former-owner-farm-or-any-part-thereof">occupation by former owner of farm or any part thereof</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/interest-agricultural-land">Interest in agricultural land</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/ownership">Ownership</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/sectional-title">Sectional title</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/subdivision">Subdivision</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/eviction-proceedings">Eviction proceedings</a></li></ul></span><div class="field field-name-field-cases-considered field-type-node-reference field-label-above"><div class="field-label">Cases considered:&nbsp;</div><div class="field-items"><div class="field-item even"><a href="/zw/judgment/supreme-court-zimbabwe/2006/73">Tsvangirai v Mugabe and Another ((08/05)) [2006] ZWSC 73 (13 February 2006);</a></div><div class="field-item odd"><a href="/node/84">S v Dhlamini &amp; Others (SC 240/2010) [2014] ZWCC 1 (16 March 2014);</a></div><div class="field-item even"><a href="/zw/judgment/harare-high-court/2017/10">S v Yoramu &amp; 45 Others (HH 10-17 CA 648/15) [2017] ZWHHC 10 (18 January 2017);</a></div><div class="field-item odd"><a href="/zw/judgment/constitutional-court-zimbabwe/2016/15">Magurure &amp; 63 Others v Cargo Carriers International Hauliers (Pvt) Ltd. (SABOT) (CCZ 15/2016 CONST. APPLICATION NO. CCZ 96/2013) [2016] ZWCC 15 (16 November 2016);</a></div></div></div><div class="field field-name-field-legislation-considered field-type-node-reference field-label-above"><div class="field-label">Legislation considered:&nbsp;</div><div class="field-items"><div class="field-item even"><a href="/zw/legislation/act/2013/amendment-no-20-constitution-zimbabwe">The Constitution of Zimbabwe Amendment (No. 20) Act, 2013</a></div><div class="field-item odd"><a href="/zw/legislation/act/2006/8">Gazetted Land (Consequential Provisions) Act [Chapter 20:28]</a></div></div></div> Mon, 08 Apr 2019 05:38:29 +0000 admin 9294 at https://old.zimlii.org