Administrative decisions and acts https://old.zimlii.org/taxonomy/term/9417/all en Marange v Marange And 2 Others (SC 1-21, Civil Appeal No. SC 693/17) [2021] ZWSC 1 (11 May 2021); https://old.zimlii.org/zw/judgment/supreme-court-zimbabwe/2021/1 <div class="field field-name-body field-type-text-with-summary field-label-hidden"><div class="field-items"><div class="field-item even"><p><strong>Judgment No. SC 1/21</strong></p> <p><strong>Civil Appeal No. SC 693/17</strong></p> <p>                                              </p> <p><strong>REPORTABLE (1)</strong></p> <p> </p> <p><strong>BERNARD     MURWIRA     MARANGE</strong></p> <p><strong>v</strong></p> <p><strong>ZVIDZAI     ZVOMA     MARANGE</strong></p> <p><strong>and</strong></p> <p><strong>MINISTER     OF     RURAL     DEVELOPMENT,     PROMOTION     AND     PRESERVATION     OF     NATIONAL     CULTURE     AND     HERITAGE</strong></p> <p><strong>and</strong></p> <p><strong>THE     PRESIDENT     OF     THE     REPUBLIC     OF     ZIMBABWE</strong></p> <p> </p> <p><strong>SUPREME COURT OF ZIMBABWE</strong></p> <p><strong>GWAUNZA DCJ, PATEL JA &amp; BERE JA</strong></p> <p><strong>HARARE:  JUNE 4, 2018 &amp; MARCH 11, 2021</strong></p> <p> </p> <p><em>T. Magwaliba</em>, for the appellant</p> <p><em>E. Mubaiwa</em>, for the first respondent</p> <p>No appearance for the second and third respondents (in default)</p> <p> </p> <p><strong>PATEL JA:</strong>        This is an appeal against the whole judgment of the High Court setting aside the appointment of the appellant to the Marange chieftainship in 2016. It is a matter concerning the procedure to be followed in the appointment of chiefs in Zimbabwe pursuant to the advent of the current Constitution in 2013.</p> <p>Background</p> <p>The substantive Chief Marange died on 6 September 2005. Two of his relatives acted in his place and stead following his death. Following a long and arduous selection process, the appellant was eventually installed as Chief Marange on 27 October 2016.</p> <p>The first respondent challenged this appointment as having taken place irregularly and improperly. In particular, he averred that he was the people’s preferred candidate for the position and that the second respondent (the Minister) had hand-picked the incumbent and imposed him on the people against their wishes.</p> <p> </p> <p>The first respondent moved the court <em>a quo</em> to review the conduct of the Minister and to set aside the appointment of the appellant as Chief Marange. The appellant, together with the other respondents <em>a quo</em>, opposed the application on the basis that the court lacked jurisdiction to hear and determine the application by reason of the provisions of s 283 of the Constitution.</p> <p> </p> <p>Judgment of the High Court</p> <p>The court <em>a quo</em> rejected the point <em>in limine</em> taken by the respondents before it. It found that it did have the jurisdiction, by virtue of ss 26 and 27 of the High Court Act [<em>Chapter 7:06</em>], to inquire into the conduct of the Minister, as an administrative authority, and to ascertain whether that conduct fell within the law. The court further found that the people chosen by the Minister to advise him on the selection process were not conversant with the customs and traditions of the Marange people.</p> <p> </p> <p>The court took the view that the chieftainship dispute should have been resolved by the Minister in terms of s 283(c)(ii) of the Constitution. He should have referred the dispute to the provincial assembly of Chiefs to consider the matter and report back to him as provided by s 42(3) of the Traditional Leaders Act [<em>Chapter 29:17</em>]. Instead, he acted outside the law in accepting the recommendation of one of the commissions that had been illegally set up by him to identify a suitable candidate for the chieftainship. Consequently, he acted <em>ultra vires</em> the Constitution in appointing the appellant as Chief Marange.</p> <p> </p> <p>As regards the first respondent’s claim to the chieftainship, the court <em>a quo</em> found that the documents that he had produced did not substantiate his allegations. He did not produce anything to support his claim to be the people’s choice. On the other hand, the court held that the first respondent had proved his case, for the setting aside of the appellant’s appointment, on a balance of probabilities. The court accordingly ordered that the appointment of the appellant as the substantive Chief Marange be set aside. Additionally, the appellant and the Minister were ordered to pay the costs of the application. In effect, the third respondent (the President) was entirely absolved of any responsibility for the Minister’s unlawful conduct.</p> <p> </p> <p>Grounds of appeal and relief sought</p> <p>The four grounds of appeal herein impugn the judgment of the court <em>a quo</em> on the following bases. The first is that the jurisdiction of the court to deal with chieftainship disputes was ousted by s 283 of the Constitution. The second is that the dispute in this case arose when the first respondent challenged the appellant’s appointment and it is at that point that the Minister should have referred the dispute for resolution by the President. The third takes issue with the court, having found that the first respondent had not proven his case, but nevertheless granting the relief sought by him setting aside the appellant’s appointment. The fourth attacks the implied finding of the court to the effect that the appellant’s appointment was not in accordance with the custom and practice of the people of Marange.</p> <p> </p> <p>The relief sought by the appellant is that the appeal be allowed with costs and that the judgment <em>a quo</em> be set aside and be substituted with an order dismissing the application with costs.</p> <p> </p> <p>The governing provisions</p> <p>Section 280 of the Constitution recognises the institution, status and role of traditional leaders under the Constitution, while s 281 underscores the principles to be recognised by traditional leaders. Section 282 spells out the functions of traditional leaders within their respective areas of jurisdiction.</p> <p> </p> <p>Sections 285 and 286 of the Constitution provide for the establishment and functions of the National Council of Chiefs and provincial assemblies of Chiefs. In terms of s 285(2), a provincial assembly of Chiefs must be established for each province by an Act of Parliament. By virtue of s 286(1)(f), one of the functions of a provincial assembly is “to facilitate the settlement of disputes between and concerning traditional leaders” within its province.</p> <p> </p> <p>The critical provision for consideration <em>in casu</em> is s 283 of the Constitution relating to the appointment and removal of traditional leaders. It is necessary to set it out in full as follows:</p> <p>            “An Act of Parliament must provide for the following, in accordance with the       prevailing culture, customs, traditions and practices of the communities            concerned—</p> <ol> <li>the appointment, suspension, succession and removal of traditional leaders;</li> </ol> <p>                        (<em>b</em>) the creation and resuscitation of chieftainships; and</p> <p>                        (<em>c</em>) the resolution of disputes concerning the appointment,</p> <p>                        suspension, succession and removal of traditional leaders;</p> <p>            but—</p> <p>                        (i) the appointment, removal and suspension of Chiefs must be done                                   by the President on the recommendation of the provincial assembly                              of Chiefs through the National Council of Chiefs and the Minister                                      responsible for traditional leaders and in accordance with the                                        traditional practices and traditions of the communities concerned;</p> <p>                        (ii) disputes concerning the appointment, suspension and removal                                        of traditional leaders must be resolved by the President on the                                     recommendation of the provincial assembly of Chiefs through the                                         Minister responsible for traditional leaders;</p> <p>                        (iii) the Act must provide measures to ensure that all these matters                                       are dealt with fairly and without regard to political considerations;</p> <p>                        (iv) the Act must provide measures to safeguard the integrity of                                          traditional institutions and their independence from political                                                interference.” (My emphasis)</p> <p> </p> <p>Turning to the Traditional Leaders Act, s 3(1) of this Act empowers and obligates the President to appoint chiefs to preside over communities inhabiting Communal Land and resettlement areas. In performing this function, the President is enjoined by s 3(2) to give due consideration to the prevailing customary principles of succession and, wherever practicable, to appoint a person nominated by the appropriate persons in the community concerned in accordance with those principles. In the event that such nomination is not made within two years after the chieftainship became vacant, the responsible Minister is then required, in consultation with the appropriate persons, to nominate a person for appointment as chief. Section 3(3) of the Act enables the President, where he is of the opinion that good cause exists, to remove a chief from office. This power is subject to s 7 which prescribes the disciplinary procedures to be followed where a chief commits or is alleged to have committed a specific offence or act of misconduct.</p> <p> </p> <p>Part IX of the Act provides for the establishment and functions of provincial assemblies and the Council of Chiefs. In terms of s 35(1), there is constituted a provincial assembly for each province of all the chiefs of that province. Section 35(2) requires every provincial assembly “to meet at least twice a year at such time and place as the Minister may from time to time determine”. One of the principal functions of a provincial assembly, as stipulated by s 36(b), is “to consider and report on any matter which is referred to it by the Minister, the Council or a member of such provincial assembly”.</p> <p> </p> <p>Following exchanges with the Court, it was accepted by both counsel that s 283 of the Constitution does not constitute the actual code that governs the appointment and removal of chiefs or the resolution of disputes in that connection. What s 283 does is to enunciate the template to be applied in the formulation and implementation of that code. It is also common cause that the Traditional Leaders Act, duly modified so as to fully conform with the Constitution, provides the requisite legislative framework contemplated by s 283 of the Constitution.</p> <p> </p> <p>Thus, even without having been exactly aligned to the Constitution, the Act makes it clear that it is the President who is vested with the power to appoint and remove chiefs from office and that he must do so in accordance with the prevailing customary principles of succession, following nominations by the local community and/or the responsible Minister. To a significant extent, therefore, the provisions of the Act that I have alluded to are perfectly capable of being applied in accordance with the requirements of s 283 of the Constitution. I am amply fortified in adopting this approach by having regard to para 10 of the Sixth Schedule to the Constitution, which dictates the continuation in force of all existing laws to be construed in conformity with the Constitution.</p> <p> </p> <p>Jurisdiction to entertain chieftainship disputes</p> <p>As I have already stated, s 283 of the Constitution is not a substantive provision that impacts directly on the law governing the appointment and removal of traditional leaders. Rather, it declares what that law should provide in regulating, <em>inter alia</em>, the resolution of chieftainship disputes. Consequently, it cannot be construed, <em>per se</em>, as ousting the jurisdiction of the courts over such disputes.</p> <p> </p> <p>At common law, the High Court enjoys original review jurisdiction. This jurisdiction is now codified in s 26 of the High Court Act which endows the court with the “power, jurisdiction and authority to review all proceedings and decisions of all inferior courts of justice, tribunals and administrative authorities within Zimbabwe”. Section 27 of the Act elaborates “the grounds on which any proceedings or decision may be brought on review” and includes “any gross irregularity in the proceedings or the decision”. The powers of the court on review of civil proceedings and decisions are spelt out in s 28 which enables the court “subject to any other law, [to] set aside or correct the proceedings or decision”.</p> <p> </p> <p>It is trite that Parliament is at large, subject to the Constitution, to curtail or oust the jurisdiction of any court. However, it is equally trite that any such ouster must be effected in clear and unambiguous terms. In the present context, even if s 283 of the Constitution were to be regarded as a substantive provision, I am unable to discern anything in its language that might be construed, whether expressly or by necessary implication, to curtail or oust the review jurisdiction of the High Court. By the same token, there is nothing contained in s 3 of the Traditional Leaders Act, being the relevant substantive provision currently in force, which might be taken as effecting any such ouster.</p> <p> </p> <p>It follows from the foregoing that the court <em>a quo</em> was correct in adopting the stance that it was invested with the requisite jurisdiction to review the acts and conduct of the Minister, in his capacity as an administrative authority, on the recognised grounds of illegality, irrationality or procedural impropriety. More specifically, what is reviewable is not how the President exercises his discretion but whether those who formulate their advice to him acted on sound principle. See <em>Rushwayo</em> v <em>Minister of Local Government &amp; Anor</em> 1987 (1) ZLR 15 (S), at 18F-19B; <em>Chigarasango</em> v <em>Chigarasango</em> 2000 (1) ZLR 99 (S); <em>Moyo</em> v <em>Mkoba &amp; Ors</em> SC 35/2013; <em>Munodawafa</em> v <em>Masvingo District Administrator &amp; Ors</em> HH 571-15. It further follows that the first ground of appeal challenging the assumption of jurisdiction by the court <em>a quo</em> in a chieftainship dispute, as having been ousted by s 283 of the Constitution, is misplaced and cannot be sustained. What remains in issue, however, is the decision made by the court, pursuant to the exercise of its jurisdiction, to set aside the appointment of the appellant as the substantive Chief Marange.</p> <p> </p> <p>Appointment to substantive chieftainship</p> <p>The court <em>a quo</em> proceeded on the basis that the commissions of inquiry established by the Minister were not provided for in the current Constitution or in the Traditional Leaders Act. One such commission identified the appellant as a suitable candidate for the position of Chief Marange. This, according to the learned judge, offended s 283 of the Constitution. Both the commission and the Minister acted <em>ultra vires</em> the Constitution. Their actions were nullities and therefore could not be allowed to stand. The Minister was called upon to revisit the matter “properly guided by s 283 of the Constitution of Zimbabwe as read with s 42(3)(b) of the Traditional Leaders Act”. In the event, the court was satisfied that the applicant (the first respondent herein) had proved his case on a balance of probabilities. It accordingly ordered that the appointment of the first respondent (the appellant herein) as the substantive Chief Marange be set aside.</p> <p> </p> <p>Both counsel are in agreement that the court <em>a quo</em> relied upon and applied the wrong provisions in setting aside the decision of the Minister and the appointment of the appellant. As I have concluded earlier, s 283 of the Constitution is not directly applicable to the resolution of the dispute <em>in casu</em>. As for s 42(3)(b) of the Traditional Leaders Act, which was referred to by the court <em>a quo</em>, there is no such provision in the Act. This provision simply does not exist. It is clear, therefore, that the learned judge <em>a quo</em> misapprehended and misapplied the law governing the appointment of chiefs. He consequently set aside the decision of the Minister and the ensuing appointment of the appellant as Chief Marange on the wrong legal bases.</p> <p> </p> <p>Equally critically, it would appear that the court <em>a quo</em> opted to delve into the substantive merits of the respective positions advanced by the contesting parties. The first respondent’s case was that he was the people’s preferred candidate for chieftainship and that the appellant had been hand-picked by the Minister and imposed upon the people of Marange against their wishes. In support of his case, the first respondent tendered the supporting affidavits of nine other persons and two seemingly relevant documents. The court <em>a quo</em> rejected the first respondent’s averments on the basis that he had failed to substantiate them and had produced nothing to support his claims. In short, it was held that he had failed to prove his case.</p> <p> </p> <p>The appellant’s case was that the first respondent was disqualified for appointment as he had seriously violated certain cultural and customary practices. He therefore failed to meet the criteria to become a chief. As for himself, the appellant averred that at the third commission of inquiry he was publicly selected as the only remaining candidate without any violations of the traditions, customs and practices of the Marange clan. He defended his appointment as chief on the basis that he stood in the line of chieftainship of the clan, that he was the oldest surviving father of the clan without any customary or traditional infringements, and that proper consultations had been carried out with the clan leading to his election by the clan as its chief.</p> <p> </p> <p>In weighing up these opposing positions, the court <em>a quo</em> commended the Minister’s efforts in setting up the commissions of inquiry. However, the court found that the shortcoming in these efforts was that the people whom the Minister chose to drive the process were not in any way conversant with the customs, culture and traditions of the Marange people. In the event, the court found that the appellant had been irregularly appointed as the substantive Chief Marange and ordered that this appointment be set aside. However, having so concluded, the learned judge did not proceed to decree any corrective measure to rectify the irregularity. He simply left the parties to their own initiatives and devices.</p> <p> </p> <p>What can be gleaned from all of the foregoing is the implied finding that the appellant’s appointment as Chief Marange was not in accordance with the customs and practices of the Marange clan. In this respect, therefore, there is some merit in the appellant’s fourth ground of appeal, to the extent that the court itself was ill-equipped to venture into that particular field. In effect, the court appears to have overruled the decisions taken by the Minister and the President without having been possessed of the expertise or qualifications necessary to do so.</p> <p> </p> <p>It is settled law that the courts should not take over the functions of an administrative authority and interfere with its actions or decisions by substituting them or setting them aside. See <em>Affretair (Pvt) Ltd &amp; Anor</em> v <em>M.K. Airline (Pvt) Ltd</em> 1996 (2) ZLR 15 (S), at 21; <em>Zimbabwe School Examinations Council</em> v <em>Mukomeka &amp; Govhati</em> SC10/20, at pp. 17-18. I would extend this broad principle to postulate that, in certain limited circumstances, it might become necessary and appropriate to invoke such judicial restraint, even where the administrative action or decision in question is shown to have been procedurally irregular. This might arise, for instance, where judicial interference would entail serious administrative disruption or result in some grave miscarriage of justice.</p> <p> </p> <p>In any event, the general principle of judicial non-interference is not immutable and may be departed from in exceptional cases: where the end result is a foregone conclusion and it would be a waste of time to remit the matter for corrective action; where further delay would prejudice the applicant; where the extent of bias or incompetence displayed is such that it would be unfair to force the applicant to submit to the same administrative jurisdiction; where the court is in as good a position as the administrative body or functionary to make the appropriate decision. See the <em>Affretair</em> case, <em>supra</em>, at 24-25; <em>Gurta AG</em> v <em>Gwaradzimba N.O.</em> HH 353-13, at pp. 9-10; <em>C.J. Petrow &amp; Co (Pvt) Ltd</em> v <em>Gwaradzimba N.O.</em> HH 175-14, at pp. 8-9.</p> <p> </p> <p><em>In casu</em>, I do not perceive any of the above exceptions as having been applicable to the circumstances before the court <em>a quo</em>. The remittal of the matter to the Minister for corrective action would not have been a waste of time. Indeed, corrective action was eminently necessary on the facts of the case. Further delay would not have prejudiced the applicant (the first respondent herein) given the genesis of the succession dispute in 2005 and the protracted period of time over which it had remained unresolved. There was no evidence before the court <em>a quo</em> that the Minister or the President had displayed such bias or incompetence as would have operated to subject the applicant to any further administrative unfairness. And lastly, it cannot possibly be said that the learned judge was sufficiently conversant with the requisite criteria for appointment to the Marange chieftainship, to wit, the prevailing customary principles of succession and the administrative needs of the Marange community (<em>cf.</em> s 3(2)(a) of the Traditional Leaders Act).</p> <p> </p> <p>There can be no argument against the finding <em>a quo</em> that the Minister acted unprocedurally in establishing and relying upon the recommendations of the various commissions of inquiry that were instituted to resolve the succession dispute over the Marange chieftainship. The most competent body to which this matter should have been assigned, within the broad scheme of s 283 of the Constitution and the Traditional Leaders Act, would have been the provincial assembly of Chiefs responsible for the Marange community. Given the Minister’s failure to do so, the most salutary corrective measure would be to remit the matter to him and direct him to consult the provincial assembly with a view to seeking its recommendations on the resolution of the succession dispute.</p> <p> </p> <p>Additionally, it would also be necessary to address the appointment of the appellant as the substantive Chief Marange. The most obvious remedy in that connection would be to set aside that appointment as having emanated from a gross procedural irregularity. However, this would lead to a <em>lacuna</em> in the leadership of the Marange clan and resultant uncertainty in the administration of the clan’s affairs. In order to obviate this undesirable contingency, it seems to me that the preferable and less disruptive alternative would be to leave the appellant <em>in situ</em> as the clan’s chief, albeit in an acting capacity, pending the final resolution of the chieftainship dispute. In my view, this would serve to ensure administrative continuity in the interests of good governance within the Marange community.</p> <p> </p> <p>Disposition</p> <p>Mr <em>Mubaiwa</em>, for the first respondent, submits that there is presently no law providing for the resolution of disputes by provincial assemblies. This position is not entirely correct in light of my earlier interpretation of the continuing applicability, <em>mutatis mutandis</em> so as to conform with the dictates of s 283 of the Constitution, of ss 35 and 36 of the Traditional Leaders Act. In any event, Mr <em>Mubaiwa</em> accepts that the High Court has inherent jurisdiction to remit the matter to the Minister for onward referral to the provincial assembly concerned.</p> <p> </p> <p>Mr <em>Magwaliba</em>, for the appellant, agrees that ss 35 and 36 of the Act afford suitable mechanisms for the resolution of the dispute <em>in casu</em>. He submits that the Minister can lawfully convene the provincial assembly and administratively refer the chieftainship dispute <em>in casu</em> to the provincial assembly for its recommendations. I fully concur with that position.</p> <p> </p> <p>In view of my earlier conclusions and intended disposition of this matter, the third and fourth grounds of appeal are rendered redundant and do not call for further consideration or determination. As for costs, given that both the appellant and the first respondent have enjoyed relative success in relation to the first and fourth grounds of appeal, I think it appropriate that each party should bear its own costs, both in the court below and herein on appeal.</p> <p> </p> <p>In the result, I make the following order:</p> <ol> <li>The appeal is partially allowed with each party to bear its own costs.</li> <li>The judgment of the court <em>a quo</em> is set aside and substituted with the following:</li> </ol> <p>               “(i) The appointment of the first respondent as substantive Chief Marange</p> <p>                      be and is hereby set aside.</p> <p>               (ii) The matter is remitted to the second respondent who is hereby directed:                                    (a) to convene a meeting of the provincial assembly of Chiefs                                           responsible for the Marange community, at the earliest available                                     opportunity, to consider and report back to him with its</p> <p>                                 recommendations on the resolution of the dispute concerning</p> <p>                                 the appointment of a substantive Chief Marange; and</p> <p>                                    (b)  to submit the aforesaid recommendations to the third respondent</p> <p>                                          to enable him to resolve the aforesaid dispute in accordance with</p> <p>                                          the             provisions of s 3 of the Traditional Leaders Act</p> <p>                                          [<em>Chapter 29:17</em>].</p> <p>                         (iii) Pending the resolution by the third respondent of the aforesaid dispute,                   the first respondent shall perform the functions of acting Chief</p> <p>                                Marange pursuant to section 4 of the Traditional Leaders Act</p> <p>                                [<em>Chapter 29:17</em>].</p> <p>                        (iv) Each party shall bear its own costs.”</p> <p>   </p> <p>                        <strong>GWAUNZA DCJ</strong>:                            I agree</p> <p> </p> <p>                        <strong>BERE JA:</strong>                                          (No longer in office)</p> <p> </p> <p><em>T. Pfigu Legal Practitioners</em>, appellant’s legal practitioners</p> <p><em>Warara and Associates</em>, 1st respondent’s legal practitioners</p> <p><em>Civil Division of the Attorney-General’s Office</em>, 2nd and 3rd respondents’ legal practitioners</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/supreme-court-zimbabwe/2021/1/2021-zwsc-1.docx" type="application/vnd.openxmlformats-officedocument.wordprocessingml.document; length=36697">2021-zwsc-1.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/supreme-court-zimbabwe/2021/1/2021-zwsc-1.pdf" type="application/pdf; length=279503">2021-zwsc-1.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/a">A</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/administrative-law">ADMINISTRATIVE LAW</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/administrative-authority">Administrative authority</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/administrative-decisions-and-acts">Administrative decisions and acts</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/limited-grounds-which-court-may-interfere-such-decision">limited grounds on which court may interfere with such decision</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/c">C</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/customary-law">CUSTOMARY LAW</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/chieftainship">Chieftainship</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/appointment-chiefs-president">appointment of chiefs by President</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/consideration-applicable-customary-principles-succession">consideration to applicable customary principles of succession</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/shona-system-succession">Shona system of succession</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/2020/10">ZIMSEC v Mukomeka &amp; Anor (SC 10-20, Civil Appeal No. SC 765/18) [2020] ZWSC 10 (14 February 2020);</a></div><div class="field-item odd"><a href="/zw/judgment/harare-high-court/2013/353">Gurta AG v Gwaradzimba N.O. (HC 855/13) [2013] ZWHHC 353 (15 October 2013);</a></div><div class="field-item even"><a href="/zw/judgment/harare-high-court/2014/175">C J Petrow &amp; Company (Pty) Ltd v Gwaradzimba (HC 13496/12) [2014] ZWHHC 175 (15 April 2014);</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/1981/29">High Court Act [Chapter 7:06]</a></div><div class="field-item odd"><a href="/zw/legislation/act/1998/25">Traditional Leaders Act [Chapter 29:17]</a></div><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></div> Mon, 31 May 2021 11:32:41 +0000 Sandra 10010 at https://old.zimlii.org ZLHR v Minister of Transport, Communication & Infrastructure Develeopment N.O & 2 Ors (HH 353-14, HC 5708/14) [2014] ZWHHC 353 (14 July 2014); https://old.zimlii.org/zw/judgment/harare-high-court/2014/353 <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="PDF icon" title="application/pdf" src="/modules/file/icons/application-pdf.png" /> <a href="https://old.zimlii.org/zw/judgment/files/harare-high-court/2014/353/2014-zwhhc-353.pdf" type="application/pdf; length=489238">2014-zwhhc-353.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/a">A</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/administrative-law">ADMINISTRATIVE LAW</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/administrative-decisions-and-acts">Administrative decisions and acts</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/statutory-requirements">statutory requirements</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/fair-administrative-justice">Fair administrative justice</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/statutory-bodies">Statutory bodies</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/c">C</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/constitutional-law">CONSTITUTIONAL LAW</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/separation-powers">Separation of powers</a></li></ul></span><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/2004/12">Administrative Justice Act [Chapter 10:28]</a></div></div></div> Tue, 09 Mar 2021 11:58:37 +0000 Sandra 9972 at https://old.zimlii.org Bhebhe v Lupane State University (HB 10-20, HC 127/18) [2020] ZWBHC 10 (23 January 2020); https://old.zimlii.org/zw/judgment/bulawayo-high-court/2020/10 <div class="field field-name-body field-type-text-with-summary field-label-hidden"><div class="field-items"><div class="field-item even"><p><strong>ABEDNICO BHEBHE</strong></p> <p> </p> <p> </p> <p><strong>Versus </strong></p> <p> </p> <p> </p> <p><strong>LUPANE STATE UNIVERSITY</strong></p> <p> </p> <p> </p> <p>IN THE HIGH COURT OF ZIMBABWE</p> <p>MAKONESE J</p> <p>BULAWAYO 19 NOVEMBER 2018 AND 23 JANUARY 2020</p> <p> </p> <p> </p> <p> </p> <p><strong>Opposed Application</strong></p> <p> </p> <p> </p> <p><em>K Ngwenya, </em>for the applicant</p> <p><em>L Nkomo, </em>for the respondent</p> <p> </p> <p>            <strong>MAKONESE J:        </strong>This court application for review was filed on the 19th January 2018.  The parties appeared before me on the 19th November 2018 and argued the matter.  After hearing argument I dismissed the application with costs.</p> <p>            I have been asked to provide reasons for my decision.  These are my reasons.</p> <p>            The applicant filed an application in terms of section 26 of the High Court Act (Chapter 7:06) for the Review of the decision of Respondent’s Academic Board reversing the granting of an exemption from undergoing or undertaking industrial attachment.  The grounds for review were set out in the following terms:</p> <ol> <li>The respondent’s Academic Board lacked jurisdiction to reverse the granting of the applicant exemption to undergo and undertake industrial attachment after the applicant had been assessed using formal and normal channels of assessing students on industrial attachment.</li> <li>The respondent’s Academic Board’s decision to reverse the granting of the applicant exemption from undergoing or undertaking industrial attachment is grossly irregular and unreasonable in that it is <em>ultra vires</em> the respondent’s Guidelines on Exempting Students from attachment.</li> </ol> <p>The relief sought in the Draft Order was set out in the following terms:</p> <p>“ </p> <ol> <li>The respondent’s Academic Board’s decision which appears in a letter dated 25 November 2017 to reverse the granting of applicant exemption to undergo or undertake industrial attachment be and is hereby set aside and substituted with an order confirming the granting of applicant exemption from undergoing or undertaking industrial attachment.</li> <li>The respondent registers applicant for fourth year first semester courses on payment of the requisite registration fees, and that the respondent sets and applicant writes fourth year first semester examinations, and respondent marks and releases applicant’s results for the fourth year first semester examinations within fourteen (14) days of the granting of this order.</li> <li>The respondent pays the costs of this application on an attorney and client scale.”</li> </ol> <p>This application was opposed by the respondent who filed a detailed response to the application.”</p> <p> </p> <p><strong>Background</strong></p> <p>            The applicant is a student at Lupane State University, studying for a Bachelor of Science (Honours) Degree in Environmental Science.  The programe of study is for a four year period.  At third year, if one has passed his first and second year, a student is required to undergo industrial attachment.  There is provision for one to apply for an exemption from undertaking such industrial attachment.  If an application for exemption is granted, the student is then assessed by his or her Department using certain formal channels of assessment.  Towards the end of applicant’s second year of study he applied for an exemption to undertake industrial attachment.  Applicant made this application for exemption in accordance with respondent’s Guidelines on exempting students from attachment.  The guidelines provide that once a student is granted exemption the Department will proceed to assess the student using formal and normal channels of assessment for industrial attachment.  If the exemption is denied, such a student will proceed to do one full year of industrial attachment.  The respondent’s own interpretation of the guidelines is that once a preliminary decision is taken to grant an exemption, the relevant Department must proceed to assess the student.  As far as the respondent is concerned it would not make sense that the Department first approves the application for exemption and then after having given its approval, it proceeds to assess the student.  The respondent’s contention is that the initial assessment of the student is to enable the respondent to evaluate the application and make a decision on it.  The respondent admits that the applicant was assessed but disagreed with applicant’s contention that “assessments are only extended to students who have been granted exemption.”  Respondent further strenuously disputed that “Assessments are conducted after a student has been granted exemption.”   Respondent argued that the applicant was assessed after the Department made a preliminary decision to assess him for an exemption.  The respondent took the firm position that the applicant was never granted an exemption, and that what was granted was the right to be assessed.  The applicant went on to pay fees for the fourth year first semester courses and wrote assignments.  All this he did without the express approval of the University.  He was not registered as a fourth year student.  Having been advised that his application for exemption had not been approved by the Academic Board and that he was expected to proceed on industrial attachment (the third year of his course), applicant tried and failed to register for the fourth year.  Instead of overcoming that hurdle through legal process applicant took it upon himself to simply attend fourth year classes and udertake assignments.  At the end of the first semester, applicant realised that his unilateral conduct had its own limitations. He would not be able to enter the examination room for his end of semester examinations unless there was proof that he was a registered fourth year student.  Applicant made an Urgent Chamber Application under case number HC 2873/17 seeking an order that would have allowed him to write those examinations.  The Chamber Application did not find favour with the court and was dismissed.  This then is what led to this review application.</p> <p><strong>Whether the applicant had made a case for the order sought</strong></p> <p>            The first issue for determination is whether the applicant made a proper case for the order sought in the Draft Order.  The applicant’s degree programme for a Bachelor of Science (Honours) Degree fell under the Department of Agriculture.  This is the department which made an assessment of the application for an exemption.  The applicant submitted his application for exemption and the department made a preliminary decision to assess him.  This preliminary decision was confirmed and the department instructed two lecturers to assess the applicant.  Applicant attained a 75% mark.  This mark was not supposed to have been disclosed to the applicant. Somehow applicant got to know his mark. According to procedure the result of the assessment became applicant’s mark for the third year.  This is what would have appeared in his final results.  This is what would have also appeared in his overall transcript of results that go towards his degree classification.  What applicant seemed to have missed is that the application for exemption is considered by his department. The department had to refer its findings to the Faculty Board but only as a recommendation.  In turn, the Faculty Board would refer the results and recommendations to the Academic Board.   It is the Academic Board that would have the final say.  It was proper that applicant’s application in respect of the exemption ended up with the Academic Board.  It was the decision of the Board not to approve the application that became the final outcome of the application for exemption.  The Academic Board was not required to accept without question the recommendations of the Faculty Board.  All these procedures were followed by the respondent.  The applicant did not pass his third year because the exemption application was not confirmed by the Academic Board.  The unilateral attendance of classes by the applicant when he was fully aware that he was not a registered fourth year student was therefore of no force and effect.  The applicant placed himself in a difficult situation.  The applicant placed reliance on the guidelines, on exemptions and read them in isolation. Critically the assessment he relied on constituted an examination result that would be taken into account by the University in his final results.</p> <p>            It is clear that the application for review was wrongly premised and there was no legal basis to grant the order sought in the Draft Order.</p> <p><strong>Conclusion</strong></p> <p>            From a perusal of the papers filed by the applicant and the opposing affidavits there can be no doubt that the processes and procedures outlined in respect of the manner in which the applicant’s application for exemption was handled by the University was correct.  The Academic Board received recommendations and had the final say on the outcome.  The Board had the right to agree or disagree with the recommendations.  It was the decision of the Board that applicant’s work experience insofar as it related to the area of Environmental Science, was not sufficient to exempt him from going for industrial attachment.</p> <p>            This court has the discretion to review the decisions of all inferior courts of justice, tribunals and administrative authorities in terms of section 26 of the High Court Act.  The grounds for review are set out in section 27 of the Act.  These are:</p> <ol> <li>absence of jurisdiction.</li> <li>interest in the cause, or bias, malice or corruption.    </li> <li>gross irregularity in the proceedings or the decision.</li> </ol> <p>Nothing in the applicant’s papers justified the granting of the relief sought.  The point must be made that the fact that someone does not like the outcome of an administrative decision does not give rise to grounds for review.  The respondent in this matter set out the processes leading to the outcome of their decision.  It is a trite principle of our law that the onus is on the party alleging irregularity in any decision or proceedings to establish such irregularity. It is not the function of the court to interfere with processes of tribunals or administrative bodies unless gross irregularity can be established.</p> <p>See: <em>Bailey</em> v <em>Heath Professions Council</em> 1993 (2) ZLR (S).  In this cited case the court adopted the test whether there was real bias on the decision maker.  The court adopted the” reasonable danger” test in assessing whether the review was merited.     </p> <p>In this matter, I did not detect any irregularity in the proceedings or the decision by the respondent.  There was no allegation of bias.</p> <p>In the result, and for the aforegoing reasons, I dismissed the application with costs.</p> <p> </p> <p> </p> <p><em>T J Mabhikwa &amp; Partners</em>, applicant’s legal practitioners</p> <p><em>Calderwood, Bryce Hendrie &amp; Partners</em>, respondent’s legal practitioners                                                                                                                                                             </p> <p> </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/bulawayo-high-court/2020/10/2020-zwbhc-10.docx" type="application/vnd.openxmlformats-officedocument.wordprocessingml.document; length=21873">2020-zwbhc-10.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/bulawayo-high-court/2020/10/2020-zwbhc-10.pdf" type="application/pdf; length=311747">2020-zwbhc-10.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/a">A</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/administrative-law">ADMINISTRATIVE LAW</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/administrative-authority">Administrative authority</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/administrative-decisions-and-acts">Administrative decisions and acts</a></li></ul></span><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/1981/29">High Court Act [Chapter 7:06]</a></div></div></div> Tue, 30 Jun 2020 09:00:38 +0000 Sandra 9734 at https://old.zimlii.org ZIMSEC v Mukomeka & Anor (SC 10-20, Civil Appeal No. SC 765/18) [2020] ZWSC 10 (14 February 2020); https://old.zimlii.org/zw/judgment/supreme-court-zimbabwe/2020/10 <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="PDF icon" title="application/pdf" src="/modules/file/icons/application-pdf.png" /> <a href="https://old.zimlii.org/zw/judgment/files/supreme-court-zimbabwe/2020/10/2020-zwsc-10.pdf" type="application/pdf; length=234038">2020-zwsc-10.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/a">A</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/administrative-law">ADMINISTRATIVE LAW</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/administrative-decisions-and-acts">Administrative decisions and acts</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/limited-grounds-which-court-may-interfere-such-decision">limited grounds on which court may interfere with such decision</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/e">E</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/education">EDUCATION</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/2002/52">Ngulube v Zimbabwe Electricity Supply Authority and Another (260/98) ((260/98)) [2002] ZWSC 52 (16 September 2002);</a></div><div class="field-item odd"><a href="/zw/judgment/harare-high-court/2014/175">C J Petrow &amp; Company (Pty) Ltd v Gwaradzimba (HC 13496/12) [2014] ZWHHC 175 (15 April 2014);</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/1994/17">Zimbabwe School Examinations Council Act [Chapter 25:18]</a></div><div class="field-item odd"><a href="/zw/legislation/act/2004/12">Administrative Justice Act [Chapter 10:28]</a></div></div></div> Wed, 17 Jun 2020 14:18:44 +0000 Sandra 9682 at https://old.zimlii.org Community Water Alliance Trust & Anor v City of Harare & Anor (HH 194-20, HC 3561/18) [2020] ZWHHC 194 (23 January 2020); https://old.zimlii.org/zw/judgment/harare-high-court/2020/194 <div class="field field-name-body field-type-text-with-summary field-label-hidden"><div class="field-items"><div class="field-item even"><p>COMMUNITY WATER ALLIANCE TRUST</p> <p>and</p> <p>COMBINED HARARE RESIDENTS ASSOCIATION</p> <p>versus</p> <p>CITY OF HARARE</p> <p>and</p> <p>MINISTER OF LOCAL GOVERNMENT, PUBLIC WORKS &amp; NATIONAL HOUSING</p> <p> </p> <p> </p> <p>HIGH COURT OF ZIMBABWE</p> <p>MAFUSIRE J</p> <p>HARARE, 22 &amp; 23 January 2020</p> <p> </p> <p>Date of written judgment: 4 March 2020      </p> <p> </p> <p><strong>Opposed application</strong></p> <p> </p> <p>Ms <em>R. Magundani</em>, for the applicants</p> <p>Ms <em>R.C. Muchenje</em>, for the first respondent</p> <p>Ms <em>M. Mavemwa</em>, for the second respondent</p> <p> </p> <p> </p> <p>MAFUSIRE J</p> <p>[1]        The two applicants are public interest bodies. Together they move for an order in two parts: a <em>declaratur</em> and a substantive remedy, against the first respondent, a municipality or urban council (“<strong><em>City of Harare</em></strong>” or “<strong><em>Council</em></strong>”). The second respondent is the Minister in charge of urban councils (“<strong><em>the Minister</em></strong>”). </p> <p> </p> <p>[2]        The <em>declaratur</em> sought by the applicants is in two parts, namely</p> <p> </p> <ul> <li>that the 2018 budget presented by the City of Harare and approved by the Minister is unlawful in that it contravenes the Minister’s Circular No 4 of 2013, as read with s 313 of the Urban Councils Act, <em>Cap 29:15</em> (“<strong><em>the Act</em></strong>”), and</li> </ul> <p> </p> <ul> <li>that the loan facilities of US$11 million accessed by the City of Harare from the Central African Building Society (CABS) to finance salaries and terminal benefits are unlawful in that they contravene s 290 and s 292 of the Urban Councils Act.</li> </ul> <p> </p> <p>[3]        The substantive remedy sought by the applicants is also in two parts, namely that the City of Harare should:</p> <p> </p> <ul> <li>revise its (2018) budget and align it with the Minister’s circular aforesaid, and</li> </ul> <p> </p> <ul> <li>liquidate the loan facility aforesaid within six months of the date of the court order.</li> </ul> <p> </p> <p>[4]        The litigation stems partly from the audit of local authorities carried out by the Office of the Auditor-General, at the instance of the Minister. The audit was for the financial year ending 31 December 2016.  The audit report was presented to Parliament in 2017. The audit findings relevant to this matter were that the City of Harare borrowed US$11 million from CABS to finance salaries and terminal benefits for its employees and that such borrowing was contrary to s 292 of the Act, as read with s 290, which allegedly prohibit local authorities from borrowing without the Minister’s authority or borrowing to finance the emoluments of permanent employees without the Minister’s authority. In the audit report, the management of the City of Harare admitted that they did not obtain the necessary ministerial authorisation before the loans were acquired.</p> <p> </p> <p>[5]        The litigation also stems from the contents of an alleged circular by the Minister in 2013 which directed that the budget of any local authority had to reflect an expenditure ratio of 30:70 between salaries and service delivery respectively. The applicants argue that the circular was issued by the Minister in terms of s 313 of the Act and that therefore it is binding on the City of Harare. Unlike the audit report, the circular in question was not made part of the record. The papers do not say why. However, neither the fact that such a circular was issued nor that its contents were as set out by the applicants is in dispute.</p> <p> </p> <p>[6]        The applicants’ cause of action is this. It is clear from the audit report that the City of Harare has failed on service delivery, particularly in regards to water and sewerage reticulation. There is a high degree of burst water pipes in and around Harare. Sewer pipes are old and unserviceable. The City is also failing in other service areas like the road network, public facilities such as swimming pools, parks, public toilets and sporting centres, all of which are in a poor state of repair due to lack of maintenance. Yet the City is spending a disproportionate amount of income on salaries for its employees. For example, for its 2018 the City allocated US$114.8 million (or 42.6%) of its total revenue towards salaries, leaving only US$269.3 (or 57.4%) towards service delivery. This was contrary to the ministerial circular.</p> <p>[7]        The City of Harare and the Minister vehemently oppose the application. Their grounds are essentially the same. In summary, they are these. They admit the borrowing for salaries but argue that the borrowing was not in terms of s 290 or s 292, but in terms of s 291 of the Act, which provides for conditional short-term borrowings by councils by means of bank overdrafts or loans, for temporary financial accommodation. City of Harare says it had the requisite ministerial approval for the borrowing even though it cannot now locate it due to the passage of time, coupled with a high staff turnover. With regards the alleged breach of the ministerial circular, the respondents argue that the circular is a mere policy directive that is not mandatory but is a “<em>good wish</em>” for local authorities to make serious efforts towards meeting the desired ratio. In this connection, the respondents make reference to a subsequent circular by the Minister in 2017 the contents of which first made reference to the 30:70 ratio, before going on to say that where a council has previously failed to reach that ratio it must show progress towards compliance.</p> <p> </p> <p>[8]        All in all the respondents argue that the application falls short of the requirements for a declaratory order as set out in s 14 of the High Court Act, <em>Cap 7:06</em>. They submit that there is no longer any existing, future or contingent right or obligation to be determined since the 2018 budget, which was approved by the Minister, has already been implemented. The circular in question has since expired. Budgets and circulars are issued annually. At any rate, the impugned budget had been published and circulated for any possible objection by interested parties before it was presented, and none of the applicants raised any issue with it at the time. With regards the CABS loans, Ms <em>Muchenje</em>, for the City of Harare, advised from the bar that these have all been settled.</p> <p> </p> <p>[9]        Ms <em>Magundani</em>, for the applicants, argues that the fact that the 2018 budget has since been implemented, or that the circular in question has been superseded by subsequent ones, does not extinguish the applicants’ right to a <em>declaratur</em> because the court can still issue one if it is satisfied that when the proceedings commenced the right to the <em>declaratur</em> existed. She denies that the CABS loans have been liquidated. She points out that in terms of the audit report, the loans were accessed in 2014 for a one-year period, yet by the time of the audit, two years later, the loans were still reflecting in the council’s books. She also denies that the ministerial circulars are mere “<em>good wishes</em>” with no legal force and maintains that once issued, they carry the force of law by virtue of s 313 of the Act. They are binding, not only on the local authorities themselves, but also on the Minister and any of his or her successors in title.</p> <p> </p> <p>[10]      Before I consider the merits, I must determine whether or not the applicants have brought themselves within the precincts of s 14 of the High Court Act which governs the power of the court to issue a declaratory order in any given situation. If I find that they have, I will determine whether the circumstances of this case are such as to warrant that the orders sought should be granted. However, if I find that the applicants are not within the purview of s 14 of the High Court Act, that will be the end of the applicant’s case because the two substantive remedies are merely consequential relief that is predicated on the declaratory orders.</p> <p>   </p> <p>[11]      Section 14 of the High Court Act says:</p> <p> </p> <p>“<strong>14 High Court may determine future or contingent rights</strong></p> <p>The High Court may, in its discretion, at the instance of any interested person, inquire into and determine any existing, future or contingent right or obligation, notwithstanding that such person cannot claim any relief consequential upon such determination.”</p> <p> </p> <p>[12]      One who seeks a declaratory order under s 14 of the High Court Act must demonstrate more than mere academic interest. The court does not decide abstract or hypothetical questions: see <em>Adbro Investments Co Ltd v Minister of the Interior &amp; Ors</em> 1961 (3) SA 283 (T) at p 285D and <em>Johnsen v Agricultural Finance Corp</em> 1995 (1) ZLR 65 (S). He or she must show the existence of some tangible and justifiable advantage to himself or herself.</p> <p> </p> <p>[13]      In terms of s 14 of the High Court Act, a person who qualifies to move for a declaratory order is one who has an interest in having his or her existing, future or contingent right or obligation determined even if he or she cannot claim any relief consequential upon such determination. One does not seek a <em>declaratur</em> for the determination of rights existing in the past. In the present case, the respondents argue that the budget and the circular in question have both come and gone. I am told that the loans have been repaid, although Ms <em>Magundani</em>, without instructions, argues to the contrary. Without evidence to the contrary, I have no reason to disbelief Ms <em>Muchenje’s</em> submissions that the loans have been repaid. Ms <em>Magundani</em> refers me to the case of <em>Ex parte</em> <em>Chief Immigration Officer</em> 1993 (1) ZLR 122 (S), where the Supreme Court held that if, when litigation commenced, there was a live dispute, the court will proceed to decide it even though at the time of hearing no actual dispute remains.</p> <p> </p> <p>[14]      The circumstances of <em>Ex Parte Chief Immigration Officer</em> relevant to this particular argument were these. In a previous case in which a couple, the O’Haras, had been respondents, a 3-judge Supreme Court bench had heard an appeal and reserved judgment. At some point all the three judges had discussed and reached a unanimous decision to allow the appeal. However, before the judgment was handed down, one of the judges had resigned from the bench. After the judgment was handed down, the O’Haras observed that it still included the name of the judge who had resigned. In a new case before the Supreme Court (now constituted differently), the O’Haras sought a declaratory order that their constitutional right to a fair hearing in the previous case had been violated by reason of the fact that when delivering its judgment in the previous case, the court had no longer been properly constituted. They sought an order declaring the judgment in the previous case invalid. The Chief Immigration Officer filed a counter-application seeking a reverse order that the judgment in the previous case be declared valid. However, before the hearing of the new case, the O’Haras withdrew their application. Ordinarily that withdrawal would have put an end to the proceedings. But the Chief Immigration Officer persisted with his counter-application arguing, among other things, that the matter in question was of enormous importance as he needed to know the status of the previous judgment which impacted heavily on the daily operations of his office.</p> <p> </p> <p>[15]      In the course of its judgment, the Supreme Court (GUBBAY CJ) said:</p> <p> </p> <p>“If the O’Haras had not withdrawn their application, then it seems to me that this court, if it were satisfied that the submissions they raised were to be rejected, would have been at liberty to consider whether it was preferable to make what is known as a reverse declaratory order in the terms sought, rather than simply dismissing the initial application. … … … But does the withdrawal have the effect of putting an end to these proceedings? Does it disable the applicant from obtaining relief in the form of a declaratory order because there is no longer a live dispute between him and the O’Haras? Is it permissible to grant a party a declaratory order whose opponent has left the arena of conflict?</p> <p> </p> <p>There is respectable authority in English law for the proposition that if, when litigation commenced, there was a live dispute, the court will proceed to decide it even though at the time of hearing no actual dispute remained between the parties. Three decisions illustrative of this only need to be referred to.”</p> <p> </p> <p>[16]      Two of the three English decisions referred to were <em>Marion White Ltd v Francis</em> [1972] 3 All ER 857 (CA) and <em>Merricks &amp; Anor v Nott-Bower &amp; Anor</em> [1964] 1 All ER 717 (CA). In <em>Marion White</em>, the court went on to determine the validity of a certain restrictive covenant between an employer and employee after it had expired as between those parties before the court. This was on the basis that the question of the validity of the covenant was still of importance as between the employer and other employees. The court granted the employer an order declaring the covenant valid.</p> <p> </p> <p>[17]      In <em>Merricks</em>, an application for a series of declarations was made in respect of an incident that had occurred six years previously. The incident was the transfer of the plaintiffs, two police officers, at the instance of a police inspector who, two years after such transfers, was himself discredited. The declaratory orders sought by those police officers, six years later, were to the effect that the transfers had been done contrary to natural justice as they had neither been heard nor the police disciplinary rules followed. In the course of his judgment, granting the orders, LORD DENNING MR said:</p> <p> </p> <p>“What use can such declarations be at this stage, when the transfer took place six-and-a-half years ago? What good does it do now? There can be no question of re-opening the transfers. The plaintiffs have been serving in these other divisions all this time. They cannot be transferred back … On this point we have been referred to a number of cases which show how greatly the power to grant a declaration has been widened in recent years. If a real question is involved, which is not merely theoretical, and on which the court’s decision gives practical guidance, then the court in its discretion can grant a declaration.”</p> <p> </p> <p>[18]      On the basis of the above authorities, I consider that the declarations sought in the present case touch on matters of great importance, not only to the applicants, which are themselves public interest bodies, but also to the generality of the residents of the City of Harare. When moved by an interested party, the court has the power and mandate to pry into the functions of an administrative authority such as a local authority, a public institution, to ensure that it is operating within the precincts of its enabling legislation and any other provision of the law. The 2018 budget might have come and gone. But that cannot be a sufficient ground to non-suit the applicants, especially given that the evidence and arguments before me show that complaints in regards to that particular budget have more or less been the same as regards the other budgets in previous or subsequent years.</p> <p> </p> <p>[19]      With regards the contents of the 2013 circular, the evidence shows that the directive given therein had still not been complied with in 2017, four years later. Thus, when the litigation commenced in April 2018, the 2018 budget was still operative. I was told that such circulars are issued on an annual basis. Regarding the CABS loans, the public interest question is whether such kind of borrowing is done under s 290 and s 292 of the Act, as the applicants contend, or under s 291 as the respondents contend. I consider this to be an appropriate case to exercise the discretion reposed by s 14 of the High Court Act to determine the case for a <em>declaratur</em>. I consider that the rights and obligations in question touch on existing and continuous operations of the local authorities.</p> <p> </p> <p>[20]      The absence of the actual circular of 2013 on which the case is predicated places me in an invidious position. I am being asked to declare a violation of something that I have neither seen nor read. But all the parties agree that such a circular was issued. They also agree on what its contents were. The City of Harare goes further to attach a copy of a similarly worded circular in 2017. It stated:</p> <p> </p> <p>“Local Authorities should endeavour to achieve the 30:70 employment cost to recurrent expenditure for them to efficiently utilize their work force. Where a Council has previously failed to reach the 30:70, some progress towards compliance must be shown.”</p> <p> </p> <p>[21]      The respondents argue that circulars issued by the Minister are policy directions that are merely aspirational and not binding. At any rate, they conclude their argument, the Minister did approve the 2018 budget for the City of Harare in spite of that circular and in spite of the CABS loans that had been obtained for salaries. That was why the budget was implemented. On the other hand, the applicants argue that such circulars are law by virtue of s 313 of the Act. They argue that the Minister did not approve the budget because the audit report clearly said so. The budget is illegal. The CABS loans were illegal.</p> <p> </p> <p>[22]      So, obviously the first question is: what is the status of such ministerial circulars <em>vis a vis</em> s 313 of the Act? The section reads:</p> <p> </p> <p>“<strong>313 Minister may give directions on matters of policy</strong></p> <p>(1) Subject to subsection (2), the Minister may give a council such directions of a general character as to the policy it is to observe in the exercise of its functions, as appear to the Minister to be requisite in the national interest.</p> <p>(2) Where the Minister considers that it might be desirable to give any direction in terms of subsection (1), he shall inform the council concerned, in writing, of his proposal and the council shall, within thirty days or such further period as the Minister may allow, submit to the Minister, in writing, its views on the proposal and the possible implications on the finances and other resources of the council.</p> <p>(3) The council shall, with all due expedition, comply with any direction given to it in terms of subsection (1).”</p> <p> </p> <p>[23]      Section 313 above is in three parts. The first part, sub-section (1), and part of sub-section (2), empowers the Minister to issue policy directions in the national interest. It is merely a proposal or an invitation to council to endeavour to comply with any such policy directions. This cannot be binding because the second part of sub-section (2) gives the council thirty days or more to submit its own views and make any counter proposals. It is the third part, or sub-section (3), which undoubtedly has the force of law. It states in peremptory terms that the council <em>shall comply</em> with due expedition with any policy directions given in terms of sub-section (1) (<em>my emphasis</em>). What then does one make of this?</p> <p> </p> <p>[24]      Plainly, s 313 aforesaid has to be read as a whole, not disjunctively. It must then be applied to the facts of the matter as a single provision. In my view, the ministerial circular issued in terms of s 313 of the Act is binding if the Minister has given a council the opportunity to make its own counter proposals which he must consider. The policy direction is only binding after this step has been taken. In the present case, I have no information concerning the issuing of the 2013 ministerial circular. But the Minister says he did approve the 2018 budget and those preceding it, none of which met the 30:70 ratio. The 2018 budget was duly implemented. Before that, it had been published for possible objections by any interested parties. The applicants say they did not see the budget until the audit report. That is surprising for entities that profess to be public watchdogs. The probabilities are that the City of Harare made submissions that convinced the Minister not to insist on the 30:70 ratio for that budget. One such submission by Council was that 2013 was a year of general elections in Zimbabwe. In the preceding year, central government had directed the scrapping off of outstanding rates by ratepayers, but with no similar reprieve in respect of Council’s own debtors. That inevitably scuttled Council’s budget. Under these circumstances, I do not believe there are grounds for the court to interfere. In <em>City of Harare v Parsons</em> 1985 (2) ZLR 293(SC) McNALLY JA, quoting from an English case,  said:</p> <p> </p> <p>“When an executive discretion is entrusted by Parliament to a body such as the local authority in this case, what appears to be an exercise of that discretion can only be challenged in the courts in a strictly limited class of cases … … <strong>It must always be remembered that the court is not a court of appeal</strong>.”</p> <p> </p> <p>[25]      In the present case, the argument on the dichotomy between a council’s borrowing powers in terms of s 290 and s 292 on the one hand, and s 291 on the other, has produced more heat than light. In paraphrase, s 290 empowers a council to borrow money for any of the purposes listed therein (none of which includes the payment of employee emoluments) as long as certain conditions are met, one of such being the ministerial authorisation. Section 292 prohibits the use of a council’s capital or loan accounts for the purpose of meeting the emoluments of a permanent employee unless the Minister has given authorisation. Section 391 permits a council to borrow money by means of a bank overdraft or short-term loans for the purpose of temporary financial accommodation, provided <em>inter alia</em> that no such borrowing can exceed the council’s aggregate income from rates in the preceding year unless ministerial authorisation has been obtained.</p> <p> </p> <p>[26]      The applicants urge me to find that Council’s borrowings were in terms of s 290 and s 292 and to impeach them because the loans went towards paying employment salaries, contrary to the express prohibition in s 292. On the other hand, the respondents urge me to find that the borrowings were made in terms of s 291 which has no such restriction but is in fact permissive of such powers where the borrowing is for short-term temporary financial accommodation. They argue that s 291 is not subject to the other two sections.</p> <p> </p> <p>[27]      Given that s 291 is less restrictive, it is no wonder Council wants its borrowings to be classified under it. But I think this is disingenuous. The loans were for a specific purpose, namely to pay salaries. There is a specific section dealing with borrowings for such a purpose, namely s 292. Why try to justify the borrowings under a provision of general application, ignoring the one of a specific application? It is the purpose for the borrowings rather than the mere act of borrowing that determines the governing section. Undoubtedly, the borrowings were made under s 292 of the Act. At any rate, that was the finding of the audit.</p> <p> </p> <p>[28]      However, and be that as it may, all types of council borrowings under any of these sections have to be sanctioned by the Minister. The respondents say they were sanctioned. The Minister says they were sanctioned. The Minister, as the administrative authority reposed with the power to decide, in any given situation, the wisdom of a council borrowing money for any such purpose as may be intended, is better placed than the court to sanction such borrowing or prohibit it. The court cannot substitute its own decision for that of the Minister, except in special circumstances where, for example, the Minister’s decision is such a palpable inequity and is so outrageous in its defiance of logic that no reasonable person could have sanctioned it. Nothing of the sort has been alleged, let alone proved.</p> <p> </p> <p>[29]      Thus, the grounds on which the applicants want the 2018 City of Harare impeached fall away. In other words, the CABS loans were duly authorised. The budget itself was authorised. Nothing turns on the circulars in the face of the authorisations. In the final analysis, there are no grounds to issue the declaratory orders sought by the applicants. Concomitantly, the substantive remedies also fall away. At any rate, being in the nature of mandatory interdicts, the substantive remedies have since been superseded by events in that the budget in question has since been implemented and the loans repaid. Therefore, the following order is issued:</p> <p> </p> <ul> <li>The application is hereby dismissed with costs</li> </ul> <p> </p> <p>4 March 2020</p> <p> </p> <p><em>Scanlen &amp; Holderness,</em> applicants’ legal practitioners</p> <p><em>Mbidzo, Muchadehama &amp; Makoni</em>, first respondent’s legal practitioners</p> <p><em>Civil Division, Attorney-General’s Office</em>, second respondent’s legal practitioners</p> <p><em>Principal Immigration Officer &amp; Anor v O’Hara &amp; Anor</em> 1993 (1) ZLR 69 (S)</p> <p>At 126H to 127A - D</p> <p>At t21A – D</p> <p><em>Associated Provincial Picture House Ltd v Wednesbury Corporation</em> [1948] 1 KB 223 (CA)</p> <p>At 298E</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/harare-high-court/2020/194/2020-zwhhc-194.docx" type="application/vnd.openxmlformats-officedocument.wordprocessingml.document; length=72316">2020-zwhhc-194.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/harare-high-court/2020/194/2020-zwhhc-194.pdf" type="application/pdf; length=495748">2020-zwhhc-194.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/a">A</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/administrative-law">ADMINISTRATIVE LAW</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/administrative-authority">Administrative authority</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/administrative-decisions-and-acts">Administrative decisions and acts</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/failure-person-exercising-public-authority-exercise-powers">failure by person exercising public authority to exercise powers</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/c">C</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/h">H</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/high-court">HIGH COURT</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/powers-high-court">Powers (HIGH COURT)</a></li></ul></span><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/2001/222001">Urban Councils Act, 2015 [Chapter 29:15]</a></div><div class="field-item odd"><a href="/zw/legislation/act/1981/29">High Court Act [Chapter 7:06]</a></div></div></div> Thu, 19 Mar 2020 14:36:38 +0000 Sandra 9577 at https://old.zimlii.org Gondora & Another v ZIMSEC (HH- 438-19, HC 2833/18 Ref Case No. SC 779/18) [2019] ZWHHC 438 (19 June 2019); https://old.zimlii.org/zw/judgment/harare-high-court/2019/438 <div class="field field-name-body field-type-text-with-summary field-label-hidden"><div class="field-items"><div class="field-item even"><p>JOB GONDORA</p> <p>and</p> <p>PETER MATONGO</p> <p>versus</p> <p>ZIMBABWE SCHOOL EXAMINATIONS COUNCIL</p> <p> </p> <p> </p> <p>HIGH COURT OF ZIMBABWE</p> <p>CHIRAWU-MUGOMBA J</p> <p>HARARE, 26 June 2018, 18, 19 June 2019  </p> <p> </p> <p><strong>Opposed Application </strong></p> <p> </p> <p><em>T. Maanda,</em> for the applicants</p> <p><em>T.Z Zvobgo</em>, for the respondent</p> <p> </p> <p>               CHIRAWU-MUGOMBA J: On the 28th of June 2018, I gave an interlocutory order in this matter in case number HH 371/18.  The respondent sought leave to appeal which I granted. On the 27th of May 2019, the Supreme Court granted the appeal and ordered that the matter be remitted to this court for a determination of the issues raised by the parties.  I sought audience with <em>T Maanda </em>and <em>T.Z Zvobgo </em>who both indicated that they did not wish to make any further submissions on the matter and would abide by the submissions made on the 26th of June 2018.</p> <p>              Pages 1- 4 of HH- 371-18 sets out the relief sought and the background to this matter. I shall not repeat them save to state that this matter revolves around the cancellation and withholding of all November 2017 ordinary level results of the applicant’s children.  The applicants based their case on the following, that:-</p> <ol> <li>The decision to cancel the results is illegal in that apart from cancelling the mathematics results, the respondent proceeded to cancel all other results for subjects sat for.</li> <li>The cancellation of all results is not proportional with the offence as envisaged by section 68 of the Constitution.</li> <li>The decision to cancel the results is substantively unfair especially in view of the fact that there was no investigation conducted on the alleged unlawful accessing of the examination.</li> <li>The applicants daughters were not given an opportunity to be heard thus breaching the rules of natural justice.</li> <li>The respondent did not afford the applicants daughters’ reasons for the decision within a reasonable time.</li> <li>The right of the applicants’ daughter to education was infringed upon.</li> </ol> <p>            Annexure A attached to the application is a report by Ruvimbo Gondoro; annexure B is a report by Pamela Matongo and annexure C is the decision taken by the respondent.</p> <p>            In its opposing affidavit, the respondent made the following averments: - that the relief sought by the applicants is not commensurate with the allegations made in the founding affidavit. The applicants were not clear as to whether they sought a review of the respondent’s decision or merely the provision of reasons for the decisions taken.  Further that there are material disputes of facts in the matter as the first issue to be resolved was whether or not the applicants’ daughters had engaged in examination malpractice. The respondent also averred that the issue of whether or not there were material disputes of fact is now <em>res judicata</em> by virtue of the doctrine of estoppel in view of the fact that zhou J had found in another matter based on the same cheating allegations that there were material disputes of fact. The applicants were not party to that matter.  Further that the relief sought by the applicants is unsustainable on the factual averments established in their founding affidavit.  With regards to the main relief sought, the court cannot set aside the decision of the respondent of the 3rd of November 2017 and replace it with its own.  The respondent also averred that the alternative relief sought by the applicants cannot be secured on the basis of section 4 of the Administrative Justice Act [<em>Chapter 10:28</em>]<em>. </em> Public policy would demand that the decision of the respondent be upheld as it is reasonably justifiable in a democratic society.</p> <p>            In <em>casu, </em>the respondent took action in its capacity as an administrative authority.  Section 68 of the constitution which is contained in the Declaration of Rights [<em>Chapter 4</em>] provides:</p> <p>“(1)      Every person has a right to administrative conduct that is lawful, prompt, efficient, reasonable, proportionate, impartial and both substantively and procedurally fair.</p> <p> </p> <p>(2)        Any person whose right, freedom, interest or legitimate expectation has been adversely affected by             administrative conduct has the right to be given promptly and in writing the reasons for the conduct.</p> <p> </p> <p>(3)        -------------”</p> <p> </p> <p>            The Administrative Justice Act has brought in the concept of, “business unusual”. In that regard I can do no better than borrow a leaf from the words of makarau J ( as she then was) in <em>U-Tow Trailers (Pvt) Ltd </em>v <em>City of Harare and Another </em>2009 (2) ZLR 259 (H) 267 F-G; 268 A-B as follows:-</p> <p> “That the promulgation of the Act brings in an era in administrative law in this jurisdiction cannot be disputed. It can no longer be business as usual for all administrative authorities, as there has been a seismic shift in this branch of the law. The shift that has occurred is, in my view, profound as it brings under the judicial microscope all decisions of administrative authorities save where the provisions of s 3 (3) of the Act, apply. On the basis of the foregoing, I find that the decision by the first respondent summarily to terminate the lease agreement between itself and the applicant was an administrative action carried out by an administrative authority, empowered to do so by the lease agreement between the parties. The Act applies to that decision. The Act provides that an administrative authority which has the responsibility or power to take any administrative action which may adversely affect a right, interest or legitimate expectation of any person shall, <em>inter alia</em>, act reasonably and in a fair manner. The Act proceeds to define what a fair manner, for the purposes of the Act, entails and this includes adequate notice of the nature and purpose of the proposed action and a reasonable opportunity to make adequate representations, in my view, an embodiment of the <em>audi alteram partem </em>rule.”</p> <p> </p> <p>            In cancelling the examination results, the respondent relied on s 34 (2) of the Zimbabwe School Examinations Council Act   [<em>Chapter 25:18</em>] which reads as follows:-</p> <p><strong>            “34 Cancellation of examinations and annulment of results</strong></p> <p>            (2) If the Board is satisfied that any candidate for an examination—</p> <p>                        (<em>a</em>) obtained unauthorized access to any examination material prior to the examination; or</p> <p>                        (<em>b</em>) was impersonated by any other person at the sitting of the examination; or</p> <p>                        (<em>c</em>) engaged in any form of fraud or dishonest conduct in regard to the examination; or</p> <p>                        (<em>d</em>) contravened any rule or regulation governing the examination;</p> <p>                        the Board may prohibit him from sitting the examination or may annul his results or                           withdraw any certificate, diploma or award given to him in respect of the examination, as                   may be appropriate.</p> <p>            (3) It shall not be necessary for the Board to consult or invite representations from any person             before cancelling or postponing an examination or annulling the results of an examination in terms    of subsection (1).”</p> <p> </p> <p>            In <em>casu, </em>annexure C being the letter of cancellation makes reference to the ZIMSEC regulations particularly paragraph C.  The applicants also seek as part of their relief the invalidation of the Zimbabwe School Examination description of malpractice and schedule of penalties to the extent that they are ultra vires s 34(2) of ZIMSEC Act and s 68 of the Constitution. It is pertinent to note that these regulations were not placed before the court by both parties and not enough evidence and submissions were made on the issue.   </p> <p>            Although section 34(3) of the ZMISEC Act states that this body shall not consult or invite representations from any person before cancelling or postponing any examination or annulling any results or withdrawing any certificate, this seems to fly in the face of the constitution particularly section 68.  It seems that the respondent is given the authority to act arbitrarily without considering the right to be heard.  Any decision to withhold, cancel or annul examination results has drastic consequences on those affected and should not be exercised arbitrarily.  </p> <p>         Having said that, I do concur with zhou J  when he stated in the case of <em>Velah and ors </em>v<em> The Minister of Primary and Secondary Education and anor, </em>HH-124-18 that, “ <em>The nature of examinations and their bearing on the credibility and integrity of a system of education are matters of national importance”.  </em>Section 34 (2) (a) addresses, “unauthorized access to any examination material prior to the examination”. It does not state the manner of the unauthorised access. In my view, it is sufficient to just merely establish that there was unauthorised access.  I note that the applicants’ daughters were given an opportunity to present their side of the story regarding the allegations of having pre-accessed the mathematics examination paper.  Both these reports confirm that the same questions that the two students had seen prior to the mathematics examination appeared in the paper in question. It cannot therefore be said that the issue of unauthorised access has not been established.  In Ruvimbo Gondora’s report she states that, <em>“Was even surprised to see the same questions Kim had asked me except of the circle geometry”. </em>That statement unequivocally establishes unauthorised access and it does not matter that the writer places blame on someone else.  In Pamela Matongo’s report she states as follows, <em>“I was shocked to see some of the problems I helped in the morning in the paper”. </em> This again is an unequivocal admission of unauthorised access despite the shifting of blame to someone else. It would have been a different matter had the two students not admitted the similarities in the questions that they saw prior to sitting for the examination and those that appeared in the examination paper. In my view, the issues of material disputes of fact and estoppel fall away.  The decision by the respondent to cancel the mathematics results in respect of the two students cannot be faulted.</p> <p>            The next issue for consideration falls on the decision to cancel results for all other examinations in addition to the mathematics results.  The applicants’ daughters were never afforded an opportunity to make representations regarding the cancellation of results for all the other examinations. Annexure C specifically states that the students concerned accessed a mathematics 4030/01 paper which they received via social media. The same cannot be said about the other papers that they sat for. I did not read the respondent’s notice of opposition to allege that there was evidence of “unauthorised access” to any other examination prior to them sitting or that there was some fraud or dishonest conduct on the part of the students. It seems to me that the students were punished for their conduct in relation to the mathematics paper and nothing more. To that end, the decision to cancel all other results falls foul of the Administrative Justice Act and the standard set in the <em>U-Tow Trailers (Pvt) Ltd </em>v <em>City of Harare and Another </em>matter.  <em>T. Maanda </em>for the applicants likened the decision to crushing a lice with a hammer.</p> <p>        The respondent in its papers filed of record and at the hearing through submissions made by <em>T. Z Zvobgo, </em>contended that the court assuming that it sets aside the decision of the respondent should not substitute the decision with its own and grant the alternative relief sought by the applicants.  It went on to state that the court will only assume the role of an administrative authority in limited circumstances as follows: - 1. Where the end result is a foregone conclusion and it would be a waste of time to refer the matter back. 2. Where further delay could prejudice the applicant. 3. Where the extent of the bias or incompetence is such that it would be unfair to the applicant to force it to submit to the same jurisdiction and 4. Where the court is in as good a position as the administrative body to make the decision – see <em>Affretair (pvt) Ltd and anor</em> v<em> MK Airlines (pvt) Ltd,</em> 1996(2) ZLR 15 @21 (based on comments in <em>Baxters Administrative law); Mhanyami Fishing and Transport Co-operative Society Limited and 2 ors </em>v<em> The Director General Parks and Wildlife Management Authority n.o- </em>HH 92-11; <em>Juve Simba </em>v<em> The Mining Commissioner and 2 others </em>HH-10-16.  The applicants in their heads of argument also made similar submissions. I must hasten to add that the quality of the heads filed by both parties was very good and helpful to the court.</p> <p>            In my view, this matter is on all fours with the four considerations enunciated above. It will be an exercise in futility to remit the matter back to the respondent a body that has already cancelled the results. The examinations in questions were conducted in September/ November 2017 and already time has gone by. In Zimbabwe, one’s ordinary level results determines whether they will (a) proceed to advanced level and (b) the subjects that they will study at advanced level and (c) whether a student will repeat particular subject (s). Given the fact that the ZIMSEC Act (wrongly in my view) does not require consultation with the affected student before cancelling the results of an examination, it would be unfair to send the two students back to the respondent for a further determination of their matter.  This court is also in a very good position as the respondent to make a decision. </p> <p>         The applicants’ sought costs on a legal practitioner to client scale.  Although this is a matter of national importance as it touches on the integrity of examinations, I do not see anything warranting an order of costs on a higher scale.</p> <p> </p> <p><strong>Disposition </strong></p> <p>It is ordered as follows:-</p> <ol> <li>Respondent’s decision to cancel and withhold the September/ November 2017 Ordinary Level results of the applicants’ minor children namely, Ruvimbo Gondora (Candidate no. 3039, and Pamela Matongo (Candidate no. 3086) of subjects in examinations other than that  of mathematics in unlawful.</li> <li>Accordingly respondent shall provide the applicants’ minor children with the ordinary level results in respect of all other subjects they wrote in the September/ November 2017 examinations except mathematics which shall not be referred to on the certificate of the ordinary level results.</li> <li>The respondent shall pay the costs.</li> </ol> <p> </p> <p> </p> <p> </p> <p><em>Maunga Maanda and Associates, </em>Applicants’ legal practitioners</p> <p><em>Dube, Manikai and Hwacha, </em>Respondent’s legal practitioners</p> <p> </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="Microsoft Office document icon" title="application/msword" src="/modules/file/icons/x-office-document.png" /> <a href="https://old.zimlii.org/zw/judgment/files/harare-high-court/2019/438/2019-zwhhc-438.doc" type="application/msword; length=52224">2019-zwhhc-438.doc</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/harare-high-court/2019/438/2019-zwhhc-438.pdf" type="application/pdf; length=221738">2019-zwhhc-438.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/administrative-law">ADMINISTRATIVE LAW</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/administrative-decisions-and-acts">Administrative decisions and acts</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/audi-alteram-partem-rule">Audi alteram partem rule</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/fair-administrative-justice">Fair administrative justice</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/fair-hearing">Fair hearing</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/natural-justice">Natural justice</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/rules">rules of</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/estoppel">ESTOPPEL</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/delay-instituting-proceedings">Delay in instituting proceedings</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/practice-and-procedure">PRACTICE AND PROCEDURE</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/dispute-facts-practice-and-procedure">Dispute of facts (PRACTICE AND PROCEDURE)</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/res-judicata">Res judicata</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/essentials-res-judicata">essentials of res judicata</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/issue-estoppel-res-judicata">issue estoppel (Res judicata)</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/harare-high-court/2011/5">U-Tow Trailers (Pvt) Ltd v City of Harare and Another (HC 5803/09) [2011] ZWHHC 5 (18 January 2011);</a></div><div class="field-item odd"><a href="/zw/judgment/harare-high-court/2018/124">Velah &amp; 3 Others v The Minister of Primary &amp; Secondary Education &amp; 1 Other (HH 124-18, HC 1992/18) [2018] ZWHHC 124 (07 March 2018);</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/2004/12">Administrative Justice Act [Chapter 10:28]</a></div><div class="field-item even"><a href="/zw/legislation/act/1994/17">Zimbabwe School Examinations Council Act [Chapter 25:18]</a></div></div></div> Fri, 19 Jul 2019 07:34:08 +0000 admin 9368 at https://old.zimlii.org Ex- Constable Nzonzo P. T & Another v The Commissioner General of Police & 2 Others (HB 2-19, HC 1887/17) [2019] ZWBHC 2 (10 January 2019); https://old.zimlii.org/zw/judgment/bulawayo-high-court/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><strong>EX-CONSTABLE NZONZO P.T.</strong></p> <p> </p> <p><strong>And</strong></p> <p> </p> <p><strong>EX-CONSTABLE SOKOLE D.</strong></p> <p> </p> <p><strong>Versus</strong></p> <p> </p> <p><strong>THE COMMISSIONER GENERAL OF POLICE</strong></p> <p> </p> <p><strong>And</strong></p> <p> </p> <p><strong>THE CHAIRPERSON OF THE POLICE</strong></p> <p><strong>SERVICE COMMISSION</strong></p> <p> </p> <p><strong>And</strong></p> <p> </p> <p><strong>THE MINISTER OF HOME AFFAIRS</strong></p> <p> </p> <p>IN THE HIGH COURT OF ZIMBABWE</p> <p>TAKUVA J</p> <p>BULAWAYO 9 JANUARY 2018 &amp; 10 JANUARY 2019</p> <p> </p> <p><strong>Opposed Application</strong></p> <p> </p> <p><em>N. Mugiya</em> for the applicants</p> <p><em>L. Musika</em> for the respondents</p> <p>            <strong>TAKUVA J:  </strong>This is a court application for a dclaratur wherein applicants seek the following relief:</p> <p>“1.       The discharge of the applicants from the Police Service by the respondents be and is hereby declared unlawful and wrongful.</p> <p>2.         The respondents are ordered to reinstate the applicants into the Police Service forthwith.</p> <p>3.         The respondents are ordered to pay costs of suit on a client attorney scale”.</p> <p>            The applicants’ case is based on the following facts:</p> <p>            On the 26th day of July 2016 they were discharged from the Police Service by the 1st respondent.  Both appealed against the dismissal to the 2nd respondent in terms of section 51 of the Police Act (Chapter 11:10) (the Act).  Despite the appeal the 1st respondent refused, failed and /or neglected to reinstate the applicants into the Police Service.</p> <p>            On 7 November 2016, 1st applicant received a notice from the 2nd respondent that his appeal has been dismissed and that the decision of the 1st respondent was upheld.  The 2nd applicant received a similar notification on 6 April 2017.  Both alleged that they verbally requested for reasons why their appeals were dismissed “by the 1st and 2nd respondents but we were never furnished with the said reasons”.  Further, the two contended that the 2nd respondent’s Commission is not “properly constituted in terms of the Constitution.  Finally, they claimed that the 1st respondent’s refusal to reinstate them is unlawful and wrongful, while the 2nd respondent’s refusal or failure to furnish them with written reasons for dismissing their appeals is also unlawful and wrongful.</p> <p>            The respondents opposed the application on the following grounds;</p> <ol> <li>The applicants failed to comply with the procedure provided in section 15 (1) of the Board of Inquiries (Regulations)1965 in that they did not file their appeals with their Officer Commanding but filed them directly to the 2nd respondent.</li> <li>Both applicants did not request for reasons from the 2nd respondent, making the 2nd respondent’s failure to supply those reasons lawful.</li> </ol> <p>Both parties filed detailed heads of argument which they adhered to.  Applicants abandoned all their points <em>in limine</em> and the matter was argued on the merits.  The parties agreed that the following are the issues to be determined:</p> <ul> <li>Whether or not the failure by the 1st respondent to reinstate applicants pending the determination of their appeal against discharge is wrongful and unlawful.</li> <li>Whether or not the dismissal of applicants from the Police Service without giving reasons is unlawful and wrongful.</li> <li>Whether or not the Police Service Commission is properly constituted.</li> </ul> <p><strong>The Law</strong></p> <p>            In seeking a Declaratur the applicants relied on section 14 of the High Court Act (Chapter 7:06) which provides;</p> <p>“The High Court may, in its discretion at the instance of any interested person enquire into and determine any existing, future or contingent right or obligation, notwithstanding that such person cannot claim any relief consequential upon such determination”.</p> <p>This court per NDOU J laid down the guiding principles on the exercise of its discretion in <em>Mpukuta</em> v <em>Motor Insurance Pool &amp; Ors</em> 2012 (1) ZLR 192 (H) at p192E-G as:</p> <p>“The condition precedent to the grant of a declaratory order is that the applicant must be an interested person in the sense of having direct and substantial interest in the subject matter of the suit which could be prejudicially affected by the judgment of the court.  The interest must relate to an existing future or contingent right.  The court will not decide abstract academic or hypothetical questions unrelated to such interest.  That is the 1st stage in the determination of the court.  At the second stage of the enquiry, it is incumbent upon the court to decide whether or not the case in question is a proper one for the exercise of its discretion under s14 of the High Court Act (Chapter 7:06).  In this regard, some tangible and justifiable advantage in relation to the applicant’s position, with reference to an existing future or contingent legal right or obligation, must appear to flow from the grant of the declaratory order”.  See also <em>Munn Publishing (Pvt) Ltd</em> v <em>ZBC </em>1994 (1) ZLR 387 (S). and <em>Johnsen </em>v <em>Agricultural Finance Corporation</em> 1995 (1) ZLR 65 (SC).</p> <p>            In the present matter, it is not in dispute that prior to their dismissal the relationship between applicants and the 2nd respondent was one of employer – employee.  Therefore the applicants have a direct and substantial interest in the lawfulness or otherwise of their dismissal.  For this reason, both applicants have established the requirements of the 1st test.</p> <p>            As regards the second stage. I turn to the merits of the case and specifically to the 1st issue.  The material legal provisions are the following:</p> <p> </p> <p> </p> <p>            “ Section 51.   Appeal</p> <p>A member who is aggrieved by any order made in terms of section forty-eight or fifty may appeal to the Police Service Commission against the order within the time and in the manner prescribed and the order shall not be executed until the decision of the Commissioner has been given”. (my emphasis)</p> <p>            The section has two critical components namely;</p> <ul> <li>the appeal must be within the time and manner prescribed; and</li> <li>the execution of the order appealed against shall be stayed pending the decision of the Police Service Commission.</li> </ul> <p>The appeal procedure isset out in section 15 (1) of the Police (Trials and Boards of Inquiry) Regulations 1965.  It states;</p> <p>“15(1)        A member who wishes to appeal in terms of s51 of the Act shall:</p> <ul> <li>Within twenty-four hours of being notified of the decision of the Commissioner General of Police, give notice to his Officer Commanding of his or her intention.</li> <li>Within seven (7) days of being notified of the decision of the Commissioner General of Police, lodge with him or her officer commanding a notice of appeal in writing setting out fully the grounds upon which his or her appeal is based and any argument in support thereof.</li> <li>Upon receipt of a notice given in terms of paragraph (a) of subsection (1) the member’s superior officer shall notify the Chief Staff Officer (Police) by the most expeditious means.” (my emphasis)</li> </ul> <p>The import of this provision is firstly, that compliance is mandatory.  Secondly, the applicants were required to give notice of their intention to appeal to their Officer Commanding.  Thirdly, both applicants were required to lodge with their Officer Commanding a notice of appeal and grounds thereof.  Finally, their superior officer was required to then notify the Chief Staff Officer of the applicants’ appeals.  The applicants contended that they filed their appeals properly in accordance with the law because the 2nd respondent determined the appeals.  Secondly, they argued that they submitted their appeals through their Officer Commanding who has not rebutted that assertion through an affidavit.  The 1st argument has no merit in that, in my view, it is neither here nor there that the 2nd respondent decided to consider and determine an appeal without looking at its procedural aspects.  This point was not raised or argued before the 2nd respondent.  Also since the reinstatement was supposed to be effected by the 1st respondent it was crucial that he be made aware of the appeal.  This in my view is the spirit of section 51 of the Act and s15 (1) of the Regulations.  The second argument has no merit in that it seeks to shift the onus to the respondents to prove that the appeals were improperly filed in circumstances where applicants positively asserted that they appealed through their Officer Commanding.  This is a fact known to them and they would have easily discharged the onus by producing copies of their notices stamped by their Officer Commanding.</p> <p>In terms of the regulations, the 1st respondent’s decision is only stayed by an appeal that complies with the regulations.  <em>In casu,</em> I take the view that both applicants failed to comply with the regulations.  Therefore the 1st respondent could not be obliged to reinstate applicants in circumstances where the 1st respondent was in the dark about the appeals.  Consequently, the 1st respondent’s failure to reinstate the applicants was not wrongful and unlawful.</p> <p>As regards the second issue the applicants’ argument is that they “verbally” requested for the 2nd respondent’s reasons but none were forthcoming.  The 2nd respondent denied receiving any such request.  The crisp issue is whether or not the applicants made verbal requests.  The court has to resolve this dispute on the papers as no <em>viva voce</em> evidence was led.  It must be noted that 2nd respondent is the chairperson of an institution.  Therefore, to allege that a verbal request was made without supplying further particulars of the identity of the person to whom it was made is not helpful.  Further, both applicants have not stated when and where the request was allegedly made.  If the request was made to the 2nd respondent 1st they should have specifically stated so in their founding affidavits.  The probabilities in my view, do not favour a conclusion that verbal requests were made to the 2nd respondent.</p> <p>This brings me to section 68 of the Constitution of Zimbabwe Amendment (No. 20) Act 2013 which provides;</p> <p>68.       Right to administrative justice</p> <ol> <li>Every person has a right to administrative conduct that is lawful, prompt, efficient, reasonable proportionate, impartial and both substantively and procedurally fair.</li> <li>Any person whose right, freedom, interest or legitimate expectation has been adversely affected by administrative conduct has the right to be given promptly and in writing the reasons for the conduct.</li> <li>An Act of Parliament must give effect to these rights, and must –</li> </ol> <p>(a)  provide for the review of administrative conduct by a court where appropriate, by an independent and impartial tribunal;</p> <ul> <li>impose a duty on the State to give effect to the rights in subsections (1) and (2); and</li> <li>promote an efficient administration.” (my emphasis)</li> </ul> <p>The Act that gives effect to these rights is the Administrative Justice Act (Chapter 10:28).  Sections 3 thereof provides that:</p> <p>“3.       Duty of Administrative Authority</p> <ol> <li>An administrative authority which has the responsibility or power to take any administrative action which may affect the rights, interests or legitimate expectations of any person shall – <ul> <li>act lawfully, reasonably and in a fair manner; and</li> <li>act within the relevant period specified by law, or if there is no such specified period, within a reasonable period after being requested to take the action by the person concerned, and</li> <li>where it has taken the action, supply written reasons therefore within the relevant period specified by law or if there is no such specified period, within a reasonable period after being requested to supply reasons by the person concerned.” (my emphasis)</li> </ul> </li> </ol> <p>Now, in terms of this Act, a person who requires written reasons for any administrative decision which adversely affects him/her must request to be supplied with those reasons.  The question then becomes whether or not this interpretation should be extended to s68 of the Constitution?  The South African Supreme Court ascribed the same meaning to a provision that is similar to s68 of our Constitution, in <em>South African Police Service &amp; Ors</em> v <em>Maimela &amp; Anor</em> 2003 (S) SA 4801.  In this case, DU PLESSES J held that:</p> <p>“When interpreting section 33 (c) of the Constitution, it must be borne in mind that the right to be furnished with reasons is very wide, it applies to every person whose right or interests are affected by any administrative action.  In many instances the persons affected may not be interested in the reasons.  The practical interpretation of section 33(c) is that reasons must be furnished to affected persons who assert the right to be furnished with reasons.  The purpose of section 33(c) is not to oblige administrative decision-makers to furnish without a request, reasons for every single administrative action taken in this country”. (See Klaaren (in Chaskalson &amp; Others Constitutional Law of SA (Revision Services, 1999) at 25-19). (my emphasis)</p> <p>            In the present matter I have found that both applicants did not prior to filing this application request to be supplied with the 2nd respondent’s reasons for dismissing their appeals.  It is incredible and improbable to allege or assert that they made verbal requests to an institution without identifying a specific recipient.  As I pointed out above, if they made the request to the second respondent’s chairperson then they should have said so in their founding affidavits.  They should have also mentioned when and where the request was made.</p> <p>            Therefore, I find that the 2nd respondent’s failure to supply his reasons for dismissing the applicants’ appeals does not contravene s68 of the Constitution.  It cannot on the authorities above be termed “wrongful and unlawful”.</p> <p>            The 3rd issue relating to the constitutionality of the Police Service Commission was included as a parting shot in my view.  I say so because the point was not sufficiently argued by both parties.  As I pointed out elsewhere, the applicants are free to file any application with the Constitutional Court.  On the status of the 2nd respondent this court is unable to make a determination on the basis of the unsubstantiated allegations in the founding affidavits by the applicants.  The applicants have failed to discharge the onus to prove their claims.</p> <p>            In the circumstances the application is hereby dismissed with costs.</p> <p> </p> <p><em>Mugiya, &amp; Macharaga Law Chambers</em>, applicants’ legal practitioners</p> <p><em>Civil Division of the Attorney General’s Office,</em> respondents’ legal practitioners</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/bulawayo-high-court/2019/2/2019-zwbhc-2.docx" type="application/vnd.openxmlformats-officedocument.wordprocessingml.document; length=24567">2019-zwbhc-2.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/bulawayo-high-court/2019/2/2019-zwbhc-2.pdf" type="application/pdf; length=140646">2019-zwbhc-2.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/administrative-law">ADMINISTRATIVE LAW</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/access-information">Access to information</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/administrative-decisions-and-acts">Administrative decisions and acts</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/decision-adverse-applicant">decision adverse to applicant)</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/appeal">Appeal</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/audi-alteram-partem-rule">Audi alteram partem rule</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/fair-administrative-justice">Fair administrative justice</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/natural-justice">Natural justice</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/observance-rules">observance of rules of</a></li></ul></span><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/1995/2">Police Act [Chapter 11:10]</a></div><div class="field-item odd"><a href="/zw/legislation/act/1981/29">High Court Act [Chapter 7:06]</a></div><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/2004/12">Administrative Justice Act [Chapter 10:28]</a></div></div></div> Thu, 28 Feb 2019 09:55:36 +0000 admin 9283 at https://old.zimlii.org Ex- Constable Makumbi v The Commissioner General of Police & 2 Others Ex-Sergeant Mafenya v The Commissioner General of Police & 2 Others (HB 1-19, HC 1229/17; HC 1214/17) [2019] ZWBHC 1 (10 January 2019); https://old.zimlii.org/zw/judgment/bulawayo-high-court/2019/1 <div class="field field-name-body field-type-text-with-summary field-label-hidden"><div class="field-items"><div class="field-item even"><p><strong>EX-CONSTABLE MAKUMBI                                                                  HC 1229/17</strong></p> <p><strong>Versus</strong></p> <p><strong>THE COMMISSIONER GENERAL OF POLICE</strong></p> <p><strong>And</strong></p> <p><strong>THE CHAIRPERSON OF THE </strong></p> <p><strong>POLICE SERVICE COMMISSION</strong></p> <p><strong>And</strong></p> <p><strong>THE MINISTER OF HOME AFFAIRS</strong></p> <p> </p> <p> </p> <p> </p> <p><strong>EX-SERGEANT MAFENYA                                                                     HC 1214/17</strong></p> <p><strong>Versus</strong></p> <p><strong>THE COMMISSIONER GENERAL OF POLICE</strong></p> <p><strong>And</strong></p> <p><strong>THE CHAIRPERSON OF THE </strong></p> <p><strong>POLICE SERVICE COMMISSION</strong></p> <p><strong>And</strong></p> <p><strong>THE MINISTER OF HOME AFFAIRS</strong></p> <p> </p> <p>IN THE HIGH COURT OF ZIMBABWE</p> <p>TAKUVA J</p> <p>BULAWAYO 2 FEBRUARY &amp; 20 DECEMBER 2018 &amp; 10 JANUARY 2019</p> <p> </p> <p><strong>Opposed Court Application</strong></p> <p> </p> <p><em>R. Ndou</em> for the applicants</p> <p><em>L. Musika, R. Taruberekera, I. Dube &amp; B. T. Nyoni </em>for the respondents</p> <p><strong>            TAKUVA J:</strong>  At the hearing of these matters <em>Mr L. Musika</em> applied to have the two cases consolidated since the facts, issues and legal principles to be argued are the same.  <em>Mr Ndou</em> for the applicants agreed and both cases were consolidated.  The result is that I will deliver one judgment instead of two.</p> <p>            The background in respect of each case is as follows:</p> <ol> <li><strong>Ex-Sergeant Mafenya</strong></li> </ol> <p>Both parties have not divulged what caused the applicants’ discharge by the 1st respondent.  Be that as it may, on 7 November 2016, applicant received a radio communication from the 1st respondent to the effect that he had been discharged from the police service with effect from the 2nd day of November 2016. Aggrieved, applicant filed his notice of intention to appeal to the 2nd respondent on 7 November 2016.  On 14 November 2016 applicant filed his notice and grounds of appeal with the 2nd respondent.</p> <p>The 1st respondent did not reinstate the applicant pending the determination of his appeal.  Instead, in a letter dated 24 March 2016, served to his legal practitioners, applicant was advised that the 2nd respondent had turned down his appeal.  He was not informed of the reasons despite asking for them verbally.  According to him the failure to supply him with reasons is unlawful and wrongful.  Further, he also contended that the respondents’ failure or refusal to reinstate him into the police force is unlawful and wrongful.  Applicant also argued that the decision of the 2nd respondent is not only “unlawful but unconstitutional in that this body is not recognized by law”.</p> <p>Finally, applicant’s prayer for a declaratur is as follows;</p> <p>“1.       The discharge of the applicant from the Police Service by the 1st respondent be and is hereby declared wrongful and unlawful and accordingly set aside.</p> <ol> <li>The 1st respondent is ordered to reinstate the applicant to the Police Service and the 2nd respondent is ordered to regularise the applicant’s reinstatement by the 1st respondent forthwith.</li> <li>The 1st respondent is ordered to pay costs of suit.”</li> </ol> <p><strong>Ex-Constable Makumbi</strong></p> <p>Facts</p> <p>            This is a court application for a declaratur on the following background facts:  Applicant was discharged from the Police Service on 1st September 2016.  After being served with a discharge radio on 27 October 2016 he immediately filed a notice of intention to appeal together with a notice of appeal plus grounds of appeal with the 2nd respondent in terms of section 51 of the Police Act (Chapter 11:10).  Applicant was reinstated into the Police Service on the 10th of November 2016.</p> <p>            On 24 March 2017, applicant was informed of his appeal’s dismissal through a letter served to his legal practitioners.  The letter did not contain reasons for the 2nd respondent’s decision notwithstanding having made a “verbal request” to be furnished with reasons.</p> <p>            Unhappy with the outcome applicant filed this application seeking the following relief:</p> <p>“1.       The discharge of the applicant from the Police Service by the 1st respondent be and is hereby declared wrongful and unlawful and accordingly set aside.</p> <p>2.         The 1st respondent is ordered to reinstate the applicant into the Police Service and the 2nd respondent is ordered to regularize the applicant’s reinstatement by the 1st respondent forthwith.</p> <p>3.         The 1st respondent is ordered to pay costs of suit”.</p> <p>The following issues are common to both applications.</p> <ol> <li>Whether or not applicants were properly furnished with reasons for the dismissal of their appeal by the 2nd respondent?</li> <li>Whether or not the Police Service Commission is properly constituted in terms of the Constitution?</li> </ol> <p>The third issue is whether or not Ex-Sergeant Mafenya noted his appeal against discharge within the prescribed time frame?</p> <p>Both applicants seek a declaratur as their relief.  Section 14 of the High Court Act (Chapter 27:06) provides as follows:</p> <p>“The High Court may, in its discretion at the instance of any interested person enquire into and determine any existing, future or contingent right or obligation, notwithstanding that such person cannot claim any relief consequential upon such determination”.</p> <p>            In <em>Mpukuta</em> v <em>Motor Insurance Pool &amp;Ors</em> 2012 (1) ZLR 192 (H) at p192E – G, this court per NDOU J held that:</p> <p>“The condition precedent to the grant of a declaratory order is that the applicant must be an interested person in the sense of having direct and substantial interest in the subject matter of the suit which could be prejudicially affected by the judgment of the court.  The interest must relate to an existing future or contingent right.  The court will not decide abstract academic or hypothetical questions unrelated to such interest.  That is the 1st stage in the determination of the court.  At the second stage of the enquiry, it is incumbent upon the court to decide whether or not the case in question is a proper one for the exercise of its discretion under s14 of the High Court Act (Chapter 7:06).  In this regard, some tangible and justifiable advantage in relation to the applicant’s position, with reference to an existing future or contingent legal right or obligation, must appear to flow from the grant of the declaratory order”.  See also <em>Munn Publishing (Pvt) Ltd</em> v <em>ZBC </em>1994 (1) ZLR 387 (S).</p> <p>            Applying the law to the facts, I find that both applicants as ex-employees have a direct and substantial interest in the lawfulness or otherwise of their dismissal.  In my view, the applicants’ cases pass the 1st stage of the inquiry.</p> <p>            In respect of the 2nd stage, the initial question is whether there exists some “tangible and justifiable advantage in relation to the applicant’s position with reference to an existing, future or contingent right or obligation that appear to flow from the grant of the declaratory order sought”.  In order to answer this question, I must turn to the merits of the applications.  I shall deal with the 3rd issue first, namely whether or not Ex-Constable Mafenya’s appeal was properly filed.  The appeal procedure is set out in section 15 (1) of the Police (Trials and Boards of Inquiry) Regs 1965.  The section provides;</p> <p>            “15(1)  A member who wishes to appeal in terms of s51 of the Act shall:</p> <ul> <li>Within twenty-four hours of being notified of the decision of the Commissioner General of Police, give notice to his Officer Commanding of his or her intention.</li> <li>Within seven (7) days of being notified of the decision of the Commissioner General of Police, lodge with him or her officer commanding a notice of appeal in writing setting out fully the grounds upon which his or her appeal is based and any argument in support thereof.</li> <li>Upon receipt of a notice given in terms of paragraph (a) of subsection (1) the member’s superior officer shall notify the Chief Staff Officer (Police) by the most expeditious means.” (my emphasis)</li> </ul> <p>In the present case the applicant properly gave notice of his intention to appeal through his officer in charge.  However, applicant failed to give notice of appeal and grounds thereof in writing to his officer commanding in accordance with s15 (1) (b) <em>supra.</em>  This is fatal to his appeal because the provision is peremptory in that compliance is mandatory.  In his founding affidavit Constable Mafenya concedes that he filed his grounds of appeal with the 2nd respondent on 14 November 2016.  Failure to comply with the provisions of section 15(1) of the regulations renders the appeal a nullity.</p> <p>Section 51 of the Police Act (Chapter 11:10) states:</p> <p>“51.     Appeal</p> <p>A member who is aggrieved by any order made in terms of section forty-eight or fifty may appeal to the Police Service Commission against the order within the time and in the manner prescribed and the order shall not be executed until the decision of the Commissioner had been given”. (my emphasis)</p> <p>            <em>In casu</em>, Ex-Constable Mafenya did not comply with this section by not filing his appeal “in the manner prescribed”.  In my view, the 1st respondent was not obliged to invoke the provisions of section 51 where like in the present case the applicant has filed a defective appeal.  In other words, the 1st respondent was not notified of the appeal through the proper legal channels.  In the circumstances the respondents’ failure to reinstate Constable Mafenya is not a gross violation of the law.</p> <p>            As regards the 1st issue both applicants have contended that they were not furnished with reasons for the dismissal of their appeals by the 2nd respondent. The precise argument is that the 2nd respondent violated section 68 of the Constitution of Zimbabwe Amendment (No. 20) Act 2013 (the Constitution).</p> <p>            The section provides:</p> <p>            “68.     Right to administrative justice</p> <ol> <li>Every person has a right to administrative conduct that is lawful, prompt, efficient, reasonable proportionate, impartial and both substantively and procedurally fair.</li> <li>Any person whose right, freedom, interest or legitimate expectation has been adversely affected by administrative conduct has the right to be given promptly and in writing the reasons for the conduct.</li> <li>…” (my emphasis)</li> </ol> <p>Both applicants submitted that they verbally requested to be furnished with reasons for the decision to dismiss their appeals but none were supplied.  The 2nd respondent denied receiving such request from the applicants.</p> <p>In <em>Commissioner South African Police Service and Ors</em> v <em>Maimela &amp; Anor</em> 2003 (S) SA 450T, DU PLESSSIS J while interpreting a similar provision in the South African Constitution, held that;</p> <p>“When interpreting section 33 (c) of the Constitution, it must be borne in mind that the right to be furnished with reasons is very wide, it applies to every person whose right or interests are affected by any administrative action.  In many instances the persons affected may not be interested in the reasons.  The practical interpretation of section 33(c) is that reasons must be furnished to affected persons who assert the right to be furnished with reasons.  The purpose of section 33(c) is not to oblige administrative decision-makers to furnish without a request, reasons from every single administrative action taken in this country”. (See Klaaren (in Chaskalson &amp; Others Constitutional Law of SA (Revision Services, 1999) at 25-19). (my emphasis)</p> <p>            In <em>Mahachi &amp; Ors</em> v <em>Officer Commanding Matabeleland South Province &amp; Anor</em> HB-146-16, it was held that;</p> <p>“It is my considered view that section 68 gives a person a right to prompt and written reasons for any administrative action taken. It therefore follows in my view that where administrative action is taken, and a party is adversely affected by it, he has a right to request for and be promptly supplied with written reasons.  I do not hold the view that an affected party should sit back, and not ask for reasons only to say the decision is unfair as no reasons were provided.  Section 68 of the Constitution of Zimbabwe simply endorsed and incorporated into the Supreme Law of the land, the provisions of the Administrative Justice Act [Chapter 10:28].</p> <p> </p> <p>In my view, the Administrative Justice Act <em>(supra) </em>is an act of Parliament that compliments the provisions of section 68 of the Constitution.  It actually provides in its preamble as follows:</p> <p>“To provide for the right to administrative action and decisions that are lawful, reasonable and procedurally fair, to provide for the entitlement to written reasons for administrative action or decisions----.”</p> <p> </p> <p>Section 3(1) (b) of the same Act provides thus:</p> <p>“An administrative authority which has the responsibility or power to take any administrative action which may affect the rights, interests or legitimate expectations of any person shall ---</p> <p>(c)        where  it has taken the action, supply written reasons therefore within the relevant period specified by law, or if there is no such specified period after being requested to supply reasons by the person concerned.”</p> <p> </p> <p>       What comes out from the above provisions is that the affected person must 1st request for reasons of a decision before the decision-maker can be deemed to have failed to comply with section 68 <em>supra.  In casu</em>, both applicants have simply proffered bold and unsubstantiated claims that they verbally requested for reasons.  I remain unconvinced that a verbal request can be effectively made to an institution like the 2nd respondent.  Applicants have the onus to prove that they requested for reasons and none were forthcoming.  Both have dismally failed to discharge the onus in that they have not identified the person to whom their requests were made.  They have not supplied the place or date when such requests were made.  I do not share the view that in terms of the Constitution, the applicants are entitled to be furnished with reasons even without the need to request for same.  I come to the conclusion that the applicants did not request for reasons and the respondents’ failure to furnish reasons for their decisions does not make those decisions null and legally untenable.</p> <p>            Finally, both applicants contended that the 2nd respondent’s commission is not properly constituted as is required by section 227 of the Constitution.  The argument here is that the 2nd respondent was not appointed by the President making the whole commission unconstitutional.  In my view this matter was not fully argued and the information supplied is so scanty that I am unable to decide one way or the other.  Applicants may file an application with the Constitutional Court if they so wish.</p> <p>            In the circumstances, I find that the applications have no merit.  Accordingly, I make the following order.</p> <p>            Both applications be and are hereby dismissed with costs.</p> <p> </p> <p><em>Mugiya &amp; Macharaga Law Chambers</em>, applicants’ legal practitioners</p> <p><em>Civil Division of the Attorney General’s Office</em>, respondents’ legal practitioners</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/bulawayo-high-court/2019/1/2019-zwbhc-1.docx" type="application/vnd.openxmlformats-officedocument.wordprocessingml.document; length=24845">2019-zwbhc-1.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/bulawayo-high-court/2019/1/2019-zwbhc-1.pdf" type="application/pdf; length=142711">2019-zwbhc-1.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/administrative-law">ADMINISTRATIVE LAW</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/administrative-decisions-and-acts">Administrative decisions and acts</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/appeal">Appeal</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/declaratory-application">Declaratory application</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/fair-administrative-justice">Fair administrative justice</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/fair-hearing">Fair hearing</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/natural-justice">Natural justice</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/rules">rules of</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/review">Review</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/audi-alteram-partem-rule">Audi alteram partem rule</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/decision-statutory-authority">decision of statutory authority</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/police">POLICE</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/discipline-police">Discipline (POLICE)</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/dismissal-force">dismissal from force</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/bulawayo-high-court/2016/146">Mahachi &amp; Others v Officer Commanding Matabelelend South Provinve N.O. &amp; Another (HB 146-16 HC 750-16 XREF HC 765-16) [2016] ZWBHC 146 (09 June 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/1981/29">High Court Act [Chapter 7:06]</a></div><div class="field-item odd"><a href="/zw/legislation/act/1995/2">Police Act [Chapter 11:10]</a></div><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/2004/12">Administrative Justice Act [Chapter 10:28]</a></div></div></div> Thu, 28 Feb 2019 09:24:08 +0000 admin 9282 at https://old.zimlii.org Hippo Valley Estates Limited & Another v Minister of Environment, Water & Climate (HH 235-18, HC 7770/16) [2018] ZWHHC 235 (03 May 2018); https://old.zimlii.org/node/8842 <div class="field field-name-body field-type-text-with-summary field-label-hidden"><div class="field-items"><div class="field-item even"><p>HIPPO VALLEY ESTATES LIMITED</p> <p>and</p> <p>TRIANGLE LIMITED</p> <p>versus</p> <p>MINISTER OF ENVIRONMENT, WATER AND CLIMATE</p> <p> </p> <p> </p> <p>HIGH COURT OF ZIMBABWE</p> <p>MANGOTA J</p> <p>HARARE, 20 February, 2018 and 3 May, 2018</p> <p> </p> <p> </p> <p><strong>Opposed application</strong></p> <p> </p> <p> </p> <p><em>T Magwaliba</em>, for the applicants</p> <p><em>E Mukucha</em>, for the respondent</p> <p> </p> <p> </p> <p>            MANGOTA J: The applicants are sister companies. They are into sugar-cane growing and sugar processing. They operate in the Southern part of Zimbabwe’s lowveld.</p> <p>            The respondent is the Minister of Environment, Water and Climate. She is the one to whom the President of Zimbabwe assigned the Zimbabwe National Water Authority Act out of which the Zimbabwe National Water Authority [“ZINWA”] was born. ZINWA is a statutory body.</p> <p>            The applicants concluded two agreements with ZINWA’s predecessors. The agreements related to the supply of raw water to the applicants. They were signed in 1961.</p> <p>            The agreements provide that the parties - i.e. the applicants and ZINWA- would jointly review charges for raw water and the respondent would fix the charges if the parties failed to agree. One of the agreements provides that any new charges would take effect in the succeeding year. The other provides that new charges would take effect after a period of two months.</p> <p>            On 17 December, 2015 ZINWA’s Chief Executive Officer, one Sakupwanya, addressed a letter to the applicants. The letter which the applicants attached to the application as Annexure C referred to the review of raw water tariffs. It reads, in part, as follows:</p> <p> </p> <p>            “RE: REVIEW OF RAW WATER TARIFFS</p> <p> </p> <p>            This serves to advise that Government, through the recent National Budget pronouncement, has reviewed water tariffs for Commercial Agriculture (Estates) from $9.45 per megalitre to           $12-00 per megalitre.</p> <p>            The new tariffs are with effect from December 1, 2015” [emphasis added].</p> <p> </p> <p>            Following the above-mentioned letter, the respondent published the Zimbabwe National Water Authority [Raw Water Tariffs] Regulations, Statutory Instrument 48 of 2016 [“the regulations”]. She did so on 6 May, 2016.</p> <p>            The regulations are the subject of this application. The applicants applied to have them set aside. They submitted that these were <em>ultra vires</em> the enabling Act, violated their rights, were discriminatory in nature and were, therefore, invalid.</p> <p>            The respondent opposed the application. She stated, <em>in limine</em>, that the deponent to the applicants’ founding affidavit did not have the latter’s authority to depose to the same. She stated, on the merits, that she published the regulations in terms of s 50 of the Zimbabwe National Water Authority Act. The Act, she insisted, confers power upon her to make regulations which provide for a tariff of water charges. She submitted that the regulations did not violate the applicants’ rights. She averred that she could set the tariff notwithstanding the agreement which the applicants concluded with ZINWA’s predecessors in 1961. She insisted that the agreements which the applicants referred to were governed by s 39 (7) of the Water Act [<em>Chapter 20:24</em>]. She moved the court to dismiss the application with costs.</p> <p>            The applicants abandoned the <em>in limine</em> matter which they had raised in their answering affidavit. The preliminary matter pointed at the fact that the notice of opposition had been filed out of time. They had insisted that the respondent had been barred and should not, therefore, be heard.</p> <p>            The respondent’s <em>in limine</em> matter which related to the authority of the deponent’s deposition of the founding affidavit was disposed of by the applicants. They attached to the answering affidavit two resolutions. They called these Annexures A1 and A2. The annexures showed that the deponent had the applicants’ authority to depose to the affidavits for and on their behalf.</p> <p>            The <em>in limine</em> matter of non-joinder of ZINWA to the application which the respondent raised in her Heads was devoid of merit. She knows as much as the court and the applicants do that the issue of non-joinder cannot kill an application or a court action.</p> <p>            Reference is made in this regard to r 87 (1) of the High Court Rules 1971. The rule reads in, part, as follows:</p> <p>            “(1) No cause or matter shall be defeated by reason of the misjoinder or non-joinder          of any party….”</p> <p> </p> <p>            Whilst it was desirable for the applicants to have joined ZINWA to the application which they filed against the respondent, its non-joinder did not, however, cause the application to be fatally defective. In any event, it is not ZINWA which made the regulations which gave birth to this application. The respondent made them. She was, therefore, correctly sued. She is as the author of the applicants’ complaint.</p> <p>            The letter, Annexure C, which ZINWA addressed to the applicants is quite revealing. It states, in clear and categorical terms, that Government reviewed raw water tariffs for the applicants’ operations upward. It does not say ZINWA reviewed the water tariffs.</p> <p>            Paragraph 9 of the agreement which the first applicant signed with ZINWA’s predecessor in 1961 says of the subject which is under consideration:</p> <p> </p> <p>            “9. REVIEW AND AMENDMENT OF CHARGES</p> <p> </p> <p>            That ZINWA may review the price of water supplied, including the water levy, at any time. The consumer shall be advised, in writing, of any such variation in charges consequent upon      such review and the said variation in charges shall take effect after a notice period of      two months.” (emphasis added).</p> <p>            Paragraph 8 of the agreement which the second applicant concluded with ZINWA’s predecessor, on the issue of the review of water tariffs, reads:</p> <p>            “Review and Amendment of Charges …..</p> <p> </p> <p>            8.         The charges described in clause 7 hereof shall be subject to review in accordance</p> <p>with the following provisions:</p> <p> </p> <ul> <li>Until the 15th June, 1966 the said charges may be reviewed at any time but only at the request of the consumer. Upon such review the said charges shall be fixed by agreement between the parties, and failing such agreement shall be determined by the Minister.</li> <li>As from June 1966, the said charges may be reviewed at any time at the instance of either party prior to the end of each year, commencing with the period ending on the 31st March, 1967. Upon such review -</li> </ul> <p> </p> <ul> <li>The said charges shall be agreed between the parties and failing agreement shall be determined by the Minister, and any variation of the said charges consequent upon such review shall take effect as from the beginning of the next succeeding year.” (emphasis added).</li> </ul> <p> </p> <p>It is evident, from the foregoing, that the power to review the water tariffs rests with ZINWA in so far as the case of the first applicant is concerned. The same power lies with ZINWA and the second applicant in so far as the second agreement is concerned. The respondent has no power at all to review the water tariffs in the first agreement. She reviews the water tariffs in the second agreement where ZINWA and the second applicant have failed to agree on the tariff which must apply to the latter’s consumption of water for its operations.</p> <p>            The respondent acted <em>ultra vires</em> the agreements when she reviewed the water-tariffs for the applicants. She had neither the power nor the authority to do what she did. A <em>fortiori</em> when she acknowledges, as she does, the existence and, by necessary implication, the binding nature of the agreements which ZINWA’s predecessors signed with the applicants.</p> <p>The agreements are in tandem with s 30 of the Zimbabwe National Water Authority</p> <p>Act, [<em>Chapter 20:25</em>] (“the Act”). It reads, in part, as follows:</p> <p>“30      Water and other charges</p> <p> </p> <ol> <li>The Authority may, with the approval of the Minister and subject to the Water Act [<em>Chapter 20:24</em>], fix charges for –</li> </ol> <p> </p> <ul> <li>the sale of raw or treated water from water works operated or controlled by the Authority; and</li> <li>…………..; and</li> <li>…………..; and</li> <li> </li> </ul> <p> </p> <ol> <li>When seeking the approval of any charge in terms of subsection (1) or an increase in any charge, the Authority shall apply to the Minister in writing, setting the full details of any proposed charges or increase therein and the basis of the proposal.</li> <li>The Minister shall consider forthwith any application in terms of subsection (2) and, if he is satisfied that the proposed charge or increase therein is fair and reasonable having regard to –</li> </ol> <ul> <li>………..; and</li> <li>………..; and</li> <li>any other relevant economic factors justifying the proposed charge or increase therein, he shall approve the charge or increase therein sought”[emphasis added].</li> </ul> <p> </p> <p>It is evident, from the foregoing, that the respondent cannot <em>mero motu</em> increase the</p> <p>water tariffs. It is also clear that he/she cannot increase the water tariffs which ZINWA puts forward to him/her for his/her consideration unless he/she is satisfied with ZINWA’s reasons for the increase.</p> <p>            ZINWA has to file a written application to him/her. It has to state its reasons for the proposed increase. Its reasons must satisfy the respondent. It, in short, engages in a formal process which the respondent has the discretion to approve or disapprove.</p> <p>            It is not within the respondent’s power to act in terms of s 50 of the Act without ZINWA having made any written representations to him/her on the issue of the proposed increase. Any action by him/her along the suggested lines would be <em>ultra vires</em> the Act.</p> <p>            There is, <em>in casu</em>, no evidence that ZINWA applied to the respondent to consider any proposed increase. There was, in fact, no proposed increase of water tariffs at all.</p> <p>            The letter, Annexure C, which ZINWA addressed to the applicants forms the basis of increase of water tariffs. The letter has the footprints of the Minister of Finance and Economic Development. It does not have the footprints of the respondent or those of ZINWA.</p> <p>            There is, therefore, no doubt that the respondent acted outside s 30 of the Act when she published the regulations. Her conduct was <em>ultra vires</em> the enabling Act, so to speak.</p> <p>            Given the above-described set of circumstances, the complaint of the applicants cannot be faulted. They submitted, and correctly so, that the respondent violated the <em>audi alteram partem </em>rule. They said they were not consulted by ZINWA or the respondent when the latter published the regulations.</p> <p>            The <em>audi alteram partem </em>rule is a principle of natural justice. It enjoins decision-makers to hear the other side before he/she makes a decision which adversely affects the rights of the other party. The principle has its origins in the biblical story of Adam and Eve when they partook of the forbidden fruit. God did not just impose a punishment against them for having failed to obey the rule which he had directed them to obey at all times. He called upon them, each in turn, to justify his/her conduct. He only imposed the punishment upon each one of them when each failed to acquit himself or herself.</p> <p>            The above-mentioned principle became part of modern Zimbabwe’s law. It was born under the Administrative Justice Act, [<em>Chapter 10:28</em>]. Section 3 of the mentioned Act is pertinent. It reads, in the relevant part, as follows:</p> <p>“3.       Duty of Administrative Authority</p> <p>(1)        An administrative authority which has the responsibility or power to take any administrative action which may affect the rights, interests or legitimate expectation of any person shall–</p> <p>                        (a)        act lawfully, reasonably and in a fair manner; and</p> <p>            (b)        ---; and</p> <p>            (c)        ---.</p> <p>(2)        in order for an administrative action to be taken in a fair manner as required by paragraph (a) of subs (1), an administrative authority shall give a person referred to in subs (1) –</p> <p>                        (a)        adequate notice of the nature and purpose of the proposed                 action; and</p> <p>                        (b)        a reasonable opportunity to make adequate                                         representations; and</p> <p>                        (c)        adequate notice of any right of review or appeal where                                  applicable.”</p> <p> </p> <p>            There is no doubt that the respondent violated paras (a), (b) and (c) of subs (2) of s (3) of the Administrative Justice Act. Contrary to the agreements which required the applicants and ZINWA to discuss and agree a review of the water tariffs, the respondent simply increased the same. She did not notify the applicants of the increase. She did not afford them an opportunity to make representations. She simply published the regulations as a bombshell. The publication adversely affected the applicants’ rights. It was, at any rate, not within the scope of her work to review the water tariffs. That work was for ZINWA to perform. Her work was to either approve or disapprove what ZINWA would have placed before her.</p> <p>            Judicial notice is taken of the fact that Government and ZINWA are two separate and distinct authorities. The respondent falls under the executive arm of Government. She, it has already been stated, administers the Act under which ZINWA falls. ZINWA, on the other hand, is a statutory body. It is a parastatal which has its own structure which is separate and different from Government. ZINWA, and not Government, should have reviewed the water tariffs. Government, however, reviewed these. Reference is made in this regard to the contents of Annexure C. These state, categorical terms, that Government reviewed raw water tariffs for the applicants’ operations.</p> <p>            The respondent’s statement which was to the effect that the agreements which the applicants concluded with ZINWA’s predecessors were governed by s 39 (7) of the Water Act [<em>Chapter 20:24</em>] was totally misplaced. The section does not deal with the current subject – matter. It deals with the reallocation of water. It, therefore, does not apply to the issue which is before me.</p> <p>            The applicants stated, and correctly so, that s 56 of the Constitution of Zimbabwe grants all persons equality before the law. They insisted, and again correctly so, that it grants to all persons the right to equal protection and benefit of the law. The section, they state, outlaws  discrimination which is based on <em>class </em>or <em>economic </em>or<em> social status.</em></p> <p>            That the respondent violated s 56 of the Constitution requires no debate at all. She singled out the operations of the applicants only and published regulations for those alone. All other sectors, amongst them mining and industry, had their charges reduced or maintained. The annexures which the applicants attached to the application bear testimony on the above observed matter. The respondent failed to justify the discrimination which she caused the applicants to suffer.</p> <p>            The regulations which the respondent published violated:</p> <ul> <li>the agreements which the applicants and ZINWA’s predecessors concluded.</li> <li>section 30 as read with s 50 of the Act.</li> <li>section 56 of the Constitution of Zimbabwe.</li> </ul> <p> </p> <p>They are unlawful in every respect of the word. They cannot stand. The respondent’s opposition to the application was completely devoid of merit.</p> <p>            The applicants proved their case a balance of probabilities. The application is, accordingly, granted as prayed.</p> <p> </p> <p><em>Scanlen &amp; Holderness</em>, applicant’s legal practitioners</p> <p><em>Civil Division of the Attorney General’s Office</em>, respondent’s legal practitioners</p> <p>          </p> <p> </p> <p> </p> <p> </p> <p> </p> <p>           </p> <p> </p> <p> </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/harare-high-court/2018/235/2018-zwhhc-235.docx" type="application/vnd.openxmlformats-officedocument.wordprocessingml.document; length=28937">2018-zwhhc-235.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/harare-high-court/2018/235/2018-zwhhc-235.pdf" type="application/pdf; length=326563">2018-zwhhc-235.pdf</a></span></div></div></div><span class="vocabulary field field-name-field-flynote-sync field-type-taxonomy-term-reference field-label-above"><h2 class="field-label">Flynote:&nbsp;</h2><ul class="vocabulary-list"><li class="vocabulary-links field-item even"><a href="/tags/el">EL</a></li><li class="vocabulary-links field-item odd"><a href="/tags/judicial-review">Judicial Review</a></li><li class="vocabulary-links field-item even"><a href="/tags/abuse-process">Abuse of Process</a></li><li class="vocabulary-links field-item odd"><a href="/tags/freshwater-use">Freshwater use</a></li><li class="vocabulary-links field-item even"><a href="/tags/public-utilities">Public utilities</a></li></ul></span><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/administrative-law">ADMINISTRATIVE LAW</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/administrative-decisions-and-acts">Administrative decisions and acts</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/decision-adverse-applicant">decision adverse to applicant)</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/statutory-requirements">statutory requirements</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/audi-alteram-partem-rule">Audi alteram partem rule</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/natural-justice">Natural justice</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/rules">rules of</a></li></ul></span><div class="field field-name-field-headnote-and-holding field-type-text-long field-label-above"><div class="field-label">Headnote and Holding:&nbsp;</div><div class="field-items"><div class="field-item even"><p>The court considered an application to set aside the National Water Authority Regulations and tariffs on the ground that they were ultra vires and violated the applicants’ rights. </p> <p>The applicants’ business operations involved sugar-cane growing and sugar processing. They concluded two agreements with the Zimbabwe National Water Authority (ZINWA), which related to the supply of water. It was a term of the agreement that the parties would, together, review charges for raw water, and should they fail to agree, the respondent would fix the prices.  Subsequently, ZINWA addressed a letter advising the applicants of their intention to review the charges. The respondent unilaterally increased the tariffs and failed to notify the applicants. The respondent argued that in terms of the ZINWA Act, she had the authority to impose tariffs for water charges and that the regulations did not violate the applicants’ rights. </p> <p>The court considered whether the respondent had acted lawfully in imposing the water tariffs. It found that the government reviewed the water charges, and not ZINWA which was lawfully established to review the tariffs in as far as the applicant was concerned.  </p> <p>The court found that the respondent could not unilaterally increase water tariffs, unless ZINWA had made application to it to justify the increase. In this case, the respondent failed to notify the applicants, nor did she give them an opportunity to respond. The court concluded that the respondent acted ultra vires by increasing the tariffs and her actions were unlawful. Accordingly, the application was upheld</p> </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/1998/31">Water Act [Chapter 20:24]</a></div><div class="field-item odd"><a href="/zw/legislation/act/2004/12">Administrative Justice Act [Chapter 10:28]</a></div><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></div> Mon, 21 May 2018 13:48:32 +0000 Sandra 8842 at https://old.zimlii.org