Bernard Sheunesu Sibangani v Bindura University of Science and Technology

### Preamble
Judgment No. CCZ 07/22
1
Constitutional Application No. CCZ 09/22
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REPORTABLE	(7)

BERNARD     SHEUNESU     SIBANGANI

v

BINDURA     UNIVERSITY     OF     SCIENCE     AND

TECHNOLOGY

CONSTITUTIONAL COURT OF ZIMBABWE

GOWORA JCC, HLATSHWAYO JCC & PATEL JCC

HARARE: 28 MARCH 2022 & 26 JULY 2022

Applicant in person

Ms V. Vera, for the respondent

AN APPLICATION FOR AN ORDER FOR LEAVE FOR DIRECT ACCESS TO THE CONSTITUTIONAL COURT

GOWORA JCC:

[1]	This is an application for leave for direct access to this Court made in terms of r 21 of the Constitutional Court Rules, 2016 ("the Rules"). The applicant is a former student of the respondent. The respondent, Bindura University of Science Education (BUSE), is a university established and constituted in terms of the Bindura University of Science Education Act [Chapter 25:22].

[2]	In his founding affidavit, the applicant avers that he intends to vindicate several of his constitutional rights if leave for direct access is granted. These rights are the following; the right to human dignity in terms of s 51; freedom from torture or cruel, inhuman or degrading treatment or punishment in terms of s 53; the rights to equality and non-discrimination in s 56(1) and (3); the right to administrative justice in terms of s 68(1) and (2); the right to a fair hearing in terms of s 69; and the right to further education in terms of s 75(1)(b).

FACTUAL BACKGROUND

[3]	The applicant states as follows. He enrolled as a full-time student with BUSE in August 2012 in the Bachelor of Science Honours Degree in Economics. It is a four-year course that he completed in July 2016. He paid the course fees in full and, on completion, obtained a degree with a 2.1 classification.

[4]	BUSE then issued him a transcript of his results. Instead of an original, the University availed a stamped copy of the transcript. Although the results were available in July, the applicant could not collect them in time due to the events that had transpired at the University during his fourth year of study. A summary of the events follows hereunder..

The authorities at BUSE subjected him to ill-treatment and with such animosity that his relationship with staff members and fellow students was damaged. He was told that he would never attain a distinction. One of the students told him he would never be capped.

He is a practicing Apostolic Faith sect member and claims he is blessed with what he calls a divine holy spirit. Unfortunately, this has caused his harassment and intimidation by fellow students and staff members at BUSE and State Security Intelligence Agents.

During one of the examinations, the software in the computer he was using was allegedly attacked by a virus. Although he attempted to alert the invigilator, he was ignored. As a result, he left the room and failed that course. He lodged a complaint with the Student Affairs Office but did not obtain any redress.

He believes that his unique “gift” engendered negative feelings against him. He could not use the internet to research or study because his e-portal account was blocked. On occasion, he was unable to obtain access to essential library computers. In addition, he could not get information on campus operations at the departmental level, yet other students could access the data in question.

A necessary component of the degree comprised a dissertation. Unlike his fellow students, he could not obtain the assistance of a supervisor online. As a result, he had to hand in a hard copy to his detriment. This is mainly because he had to travel from Harare, where he was on attachment, to Bindura to hand in the hard copies of the dissertation chapter by chapter.

To add insult to injury, the details on his degree transcript and certificate did not tally with his national identity card. He could not collect his results due to the alleged terror arising from what he perceived to be surveillance from the national security intelligence agents. He was denied an opportunity to attend his graduation despite paying the fees at the University. He was also disabled from purchasing the graduation regalia.

BUSE did not give him a fair hearing before making the adverse decision against him. In addition, BUSE did not inform him of the reason for withdrawing his academic results or issuing a stamped copy of his academic transcript.

[5]	The applicant makes the following allegations against the Central intelligence Office, CIO.

Persons he suspected to be state intelligence agents were trailing him on and off-campus. In addition, they harassed, intimidated, and threatened him. They subjected him to offensive language. As a result, the other students and staff members avoided and segregated him.

Further to the above, he was abducted on an unspecified day by men who were driving an ISUZU Twin cab motor vehicle. Two men wearing masks accosted him as he walked from school. They bundled him into the vehicle, blindfolded and muzzled him. He switched off his cell phone as per their order. The vehicle drove off with him wedged between two men seated at the back of the vehicle, one of whom was wielding a pistol. There was a second firearm on the floor of the vehicle. The occupants identified themselves as members of the national intelligence office.

He was taken to an undisclosed location and subjected to sustained assaults. His abductors interrogated him, demanding certain information from him. After the beatings, he was in such pain that he told them what they wanted to hear. He was released from his ordeal at 4 am and dropped off in the township. The following day, he could not attend class due to pain from the beating. His view was that BUSE was implicated in the treatment of these so-called security agents.

The state security intelligence agents extended their surveillance beyond the University. They ordered the landlord at his off-campus lodgings to inform them of his movements. As a result, he had to change his residence monthly.

Traditional leaders were also brought into the frame. They descended upon his mother at the family rural home and told her he had committed a crime. Under duress, she informed her relatives that the applicant had committed an offence and urged them to inform her of his whereabouts if he secretly vacated the family home. This was meant to stop him from absconding. As a result, his standing in the community has been damaged.

[6]	He alleges that he has approached the police, the Human Rights Commission and the judiciary in an effort to assert his rights. He has largely been ignored.

[7]	He complains that Central Intelligence Organisation Agents gave him some poison and that a report to the police has yielded no results. He has also suffered at the hands of Econet, Immigration Officers, Steward Bank Officials, and legal practitioners he had engaged to assist him with his legal issues.

[8]	In light of the afore-going infractions, the applicant has approached the Court for direct access in terms of r 21 of the rules of the Constitutional Court 2016. He alleges that the conduct of BUSE violated several of his constitutional rights as follows:

his right to a fair hearing in terms of s 69 of the Constitution;

his right to freedom from torture or cruel, inhuman, or degrading treatment under s 53 of the Constitution;

his right not to be discriminated against as enshrined in s 56(1) and (3). In this respect, he alleges that BUSE and its staff subjected him to treatment that differed from other students due to his religious beliefs;

his right to administrative justice protected under s 68(1) and (2) of the Constitution. He alleges that BUSE did not afford him an opportunity to be heard before decisions were taken against him and that he never got reasons for the decisions.

[9]	As a consequence of the myriad infractions against him by all the parties referred to in his affidavit, he has approached the court seeking leave for direct access for appropriate relief. He seeks a mandatory interdict against the following entities; the Central Intelligence Organisation, The Minister of Higher and Tertiary Education, BUSE, and ZBC to afford him the necessary protection under the Constitution arising from the impunity of offenders or perpetrators of alleged extra-judicial or heinous actions perpetrated against him.

[10]	The respondent opposed the application and prayed for its dismissal. The respondent does not accept that it violated any of the applicant's rights or gave the applicant a stamped copy of his academic transcript. Instead, it pleads that it is at "pains" to understand what the applicant refers to as "a stamped photocopy of his academic transcript." It avers that it furnished the applicant an original transcript stamped for authentication purposes.

SUBMISSIONS BEFORE THE COURT

[11]	The applicant, who was not legally represented, made the following submissions. He was given a stamped photocopy of his academic transcript and degree certificate in lieu of the original documents. This was done because he had allegedly committed a national criminal offence. He further submitted that he was made to understand by the respondent's officials that the issuance of the stamped photocopy of the transcript was done pursuant to directives from the respondent's Vice-Chancellor, the Minister of Higher and Tertiary Education and the Central Intelligence Organisation.

[12]	The applicant also submitted that he was aggrieved by the harassment and assault meted out to him before the issuance of the stamped photocopy of his academic transcript and after its issuance. He contended that the conduct of BUSE impaired his right to dignity. Accordingly, he prayed that the court order the respondent to avail his academic transcript and degree certificate. He also prayed that the court order the "National Security Intelligence" to stop subjecting him to harassment as he did not do anything wrong. Finally, he prayed for the reimbursement of the costs he incurred in preparation for this application.

[13]	Counsel for the respondent, Ms. Vera, on the other hand, made the following submissions. The applicant's grievance is an administrative matter which does not raise a constitutional issue. The applicant failed to establish the requirements for granting direct access. In particular, the applicant has alternative remedies, and the intended application does not disclose a cause of action. In the premises, she prayed for the dismissal of the application.

THE LAW

[14]	The Court is a specialised court and it is empowered to deal only with constitutional matters or those that are incidental to the determination of constitutional matters. Its jurisdictional limitation is spelt out in s 167 of the Constitution. The provision is specific and states:

“167 Jurisdiction of Constitutional Court

(1) The Constitutional Court—

(a) is the highest Court in all constitutional matters, and its decisions on those matters bind all other courts;

(b) decides only constitutional matters and issues connected with decisions on constitutional matters, in particular references and applications under section 131(8)(b) and paragraph 9(2) of the Fifth Schedule;.”

[15]	It is trite that the existence of a constitutional matter is the necessary prerequisite triggering the jurisdiction of this Court. Section 332 of the Constitution defines a constitutional matter as "a matter in which there is an issue involving the interpretation, protection or enforcement of the Constitution." This provision has been interpreted in several decisions emanating from the Court. The leading decision in this respect is Moyo v Chacha & Ors 2017 (2) ZLR 142 (CC) at p. 150D, where it was stated as follows:

"The import of the definition of 'constitutional matter' is that the Constitutional Court would be generally concerned with the determination of matters raising questions of law, the resolution of which require the interpretation, protection, or enforcement of the Constitution.

The Constitutional Court has no competence to hear and determine issues that do not involve the interpretation or enforcement of the Constitution or are not connected with a decision on issues involving the interpretation, protection or enforcement of the Constitution."

[16]	Similarly, in Magurure & Ors v Cargo Carriers International Hauliers (Pvt) Ltd CCZ–15–16 at p. 6, the Court held that:

"A constitutional matter arises when there is an alleged infringement of a constitutional provision. It does not arise where the conduct the legality of which is challenged is covered by a law of general application the validity of which is not impugned."

[17]	Where a matter does not raise constitutional issues, it stands to reason that it would be incompetent and unlawful for this Court to assume jurisdiction. For this reason, litigants must demonstrate in their pleadings that the matter they intend to bring before this Court is concerned with a constitutional issue for determination, thus, bestowing jurisdiction on this Court. The respondent contends that the intended application does not raise constitutional matters for resolution by the Court and that the applicant’s remedy, if any, lies in administrative law. The crisp issue before the Court, therefore, is whether the contention by the respondent is correct. If it is, the Court’s jurisdiction cannot be invoked for relief as sought by the applicant.

DOES THE APPLICATION RAISE A CONSTITUTIONAL MATTER FOR THE COURT TO EXERCISE ITS JURISDICTION

[18] 	The procedure for approaching the court for relief is a matter dealt with by procedural law. The Constitution provides for the substantive aspect of the rights that it protects. The Court sets out the rules of procedure for determining the rights protected under the Constitution.

[19] 	In terms of s 167(5), rules of the Constitutional Court must allow a person, when it is in the interests of justice and with or without leave of the court, to bring a constitutional matter directly to the Court. An application for leave for direct access is brought in terms of r 21 of the Constitutional Court Rules 2016. On the other hand, the requirements for the form of the application are found in r 14 of the same rules. Although leave is provided for under r 21, the rules must be read holistically. Therefore, it is with rule 14 that I must begin as the form, nature, and requirements for applications, in general, are provided for in this rule. The rules make it mandatory that an applicant sets out a basis for the court to assume jurisdiction. Rule 14 provides as follows in sub-rule 4:

"(4)  An affidavit filed with a printed application —

(a)

(b)

(c)

(d)

(e)	shall lay down the facts or law forming the basis of the jurisdiction of the court.

(f)

(g)

[20]	The above rule is unambiguous. An applicant must set out either the facts or the law that would form the basis of the jurisdiction of the Court in his or her cause. It is insufficient for an applicant, without more, to merely cite a provision of the Constitution and assume that the Court's jurisdiction is triggered. The existence of jurisdiction is an objective fact derived from the founding affidavit. It must also find expression in a draft order which speaks to the relief concerned with a constitutional matter for adjudication by the Court. On the contrary, it cannot be derived from a litigant's belief that the application it has filed involves a constitutional issue.

[21]	Unlike in South Africa, this aspect of the law has not yet received attention by the courts in Zimbabwe. The Constitutional Court of South Africa has weighed in on the necessity of adequately pleading jurisdiction in constitutional matters. In Nekokwane v Road Accident Fund [2018] ZACC 11 at para. 9, while dismissing an application for leave to appeal, Froneman J held that:

"[9] Section 167(3)(c) proclaims that this Court makes a final decision whether a matter is within its jurisdiction. The applicant for leave must place before the Court facts showing that the matter falls within its jurisdiction. And it is for this Court to determine if indeed that is so."

[22]	The need to plead jurisdiction, which in our jurisdiction is laid down in the rules of this Court, was more incisively pronounced in another decision of the Constitutional Court of South Africa, namely, Gcaba v Minister for Safety and Security [2009] ZACC 26; 2010 (1) SA 238 (CC) at para 75. The Court held that:

"Jurisdiction is determined on the basis of the pleadings, as Langa CJ held in Chirwa, and not the substantive merits of the case. … In the event of the Court's jurisdiction being challenged at the outset (in limine), the applicant's pleadings are the determining factor. They contain the legal basis of the claim under which the applicant has chosen to invoke the Court's competence. While the pleadings – including in motion proceedings, not only the formal terminology of the notice of motion but also the contents of the supporting affidavits – must be interpreted to establish what the legal basis of the applicant's claim is, it is not for the Court to say that the facts asserted by the applicant would also sustain another claim, cognisable only in another court." (My emphasis).

[23]	The allegations by the applicant against the respondent, the only cited entity before the Court, do not suggest a violation of any constitutional right against him. The issuance of a stamped copy of a degree transcript does not speak to the violation of an alleged fundamental right and neither does the issuance of a copy of a degree certificate. The alleged hatred of the university staff and students towards the applicant has no foundation under constitutional law. The allegations of torture are not aimed at the respondent. The applicant suggests that unnamed security agents subjected him to inhuman treatment. Those persons are not before the Court and, as a result, there are no issues of jurisdiction that can arise against an unnamed party.

[24]	In my view, the applicant has not set out any facts or law that would justify the invocation by the Court of its jurisdiction in the intended application.

[25]	This, however, is not the end of the matter. The respondent has contended that the applicant has not set out a cause of action in the application. Thus, the respondent suggests, the applicant has again failed to comply with the rules of the Court.

THE NEED TO ADEQUATELY PLEAD A CAUSE OF ACTION

[26]	In addition to the above-stated requirement to plead the jurisdiction of the Court, an applicant for direct access to the Court must set out the facts in the affidavit that establish a cause of action for adjudication by the Court. In this context, r 14(4) still looms large. The portions of that rule that are relevant to the elaboration of that basis read as follows:

"(4) An affidavit filed with a printed application—

shall be concise and not contain any irrelevant matter;

(not relevant)

(not relevant)

shall contain all essential averments that are

necessary to clarify and verify the cause of action; "

[27]	A portion of this rule has received the scrutiny of the court. Commenting on the import of r 14(4), the Court stated in Chamisa v Mnangagwa & Ors 2018 (2) ZLR 251 (CC) at p. 279F that:

"A proper interpretation of the provisions of r 14(4) of the Rules confirms the principle that an application stands or falls on the facts or averments set out in the founding affidavit at the time the application is filed and served."

[28]	In its opposing affidavit, the respondent argued, as a preliminary objection, that the application does not disclose a cause of action. Ms Vera, for the respondent, persisted with this objection in her oral submissions.

[29]	It is a settled principle in our law that the business of the courts is to determine disputes between litigants. A conflict cannot, and does not, arise without a cause of action pleaded on the papers before the Court. A narration of historical events, no matter how creative or entertaining, does not establish a cause of action for determination by the Court. A litigant must set out the cause of the feud or disharmony with his or her opponent, the basis of the conflict between the parties, or the legal basis of departure between them. The court has no business entertaining a matter where an issue cannot be joined between parties without a discernible cause. According to Herbstein and Van Winsen, The Civil Practice of the High Courts and the Supreme Courts of Appeal of South Africa 5 ed (2009) Vol. 1 at p. 439:

"The supporting [founding] affidavits must set out a cause of action. If they do not, the respondent is entitled to ask the Court to dismiss the application on the ground that it discloses no basis on which the relief can be granted."

[30]	The failure to establish a cause of action is fatal to the prospects of success of a case and a successful conclusion to a dispute. A cause of action relates to all material facts on which a claim is founded. See Apex Holdings (Pvt) Ltd (in liquidation) & Anor v Venetian Blinds Specialists CCZ–11–19 at p. 8.

[31]	In the event that the Court finds that a cause of action has not been established, it is, in that case, bound by law to dismiss the application as no foundation would exist to justify the exercise by the Court of its jurisdiction under the Constitution. See Apex Holdings (Pvt) Ltd case (supra). In Kufa & Anor v President of the Republic of Zimbabwe & Ors CCZ–22–17 at pars. 37 – 38, the Court disposed of a matter in which there was no proper cause of action pleaded as follows:

"In the circumstances, I am satisfied that the cause of action as pleaded was never proved and that the founding papers did, in fact, contradict the ultimate relief prayed for. As stated by MALABA DCJ (as he then was) in Moyo & Others v Zvoma NO & Another 2011(2) ZLR 345(S),369H, the matter: -

'ought to have been dismissed or granted on the grounds on which the applicants made it.”

[32]	A mere statement that particular conduct violated a constitutional right is insufficient unless cogent facts support it. Otherwise, it is a mere conclusion of law that requires a factual basis supported by facts. The applicant before the Court is unrepresented. There is an unwritten rule of practice that, wherever possible and where justice demands, courts should ensure that unrepresented litigants be accorded a measure of tolerance where it concerns procedural issues. That said, it must be emphasised that litigants are not excused from observing the conventional rules of pleading in constitutional matters. To this end, the remarks of SANDURA JA in Hindoga v Predictive Maintenance (Pvt) Ltd & Anor 2000 (2) 109 (S) at pp. 111 – 112 are pertinent:

"The appellant's claim for an order nullifying the sale and transfer of the property in question was based upon the averment that at the relevant time, he was mentally incompetent. Such an averment is a conclusion of law which is for the Court to determine. Whilst it is not fatal to the pleading, it must be supported by facts. No such facts were pleaded by the appellant in this case." (my emphasis).

[33]	An applicant who premises his cause on the provisions of Chapter 4 of the Constitution falls within the purview of s 85(1) and must allege the violation of a fundamental right as a jurisdictional fact. However, if the applicant fails to plead the jurisdictional facts adequately, a matter will not be properly before the Court. This requirement is neither rigid nor onerous.

[34] 	The need to adequately plead constitutional matters was affirmed by the learned authors Woolman and Bishop in Constitutional Law of South Africa 2 ed, Vol. 1 (2014) at p. 3-5 as follows:

"Irrespective of how and in which forum a constitutional matter arises, it has been frequently stressed that constitutional matters must be properly pleaded. The general principles of civil procedure and the need to alert a party to litigation of the case must be met."

[35]	Applying these principles to this case leads me to conclude that the draft founding affidavit would materially offend the cited paragraphs of r 14(4). I also observe a patent disconnect between the founding affidavit in the application for leave for direct access and the draft founding affidavit for the substantive application. The draft founding affidavit has very few averments connected to the rights the applicant says were violated in the founding affidavit for the instant application. Thus, the applicant’s founding affidavit falls short of the onus placed upon him to obtain relief.

[36]	I am fortified in this view and find support for the above proposition in the case of Meda v Sibanda 2016 (2) ZLR 232 (CC) at p. 236B – C, where the Court held that:

"It is clear from a reading of s 85(1) of the Constitution that a person approaching the Court in terms of the section only has to allege an infringement of a fundamental human right for the Court to be seized with the matter.  …  The facts on which the allegation is based must, of course, appear in the founding affidavit.

Whether or not the allegation is subsequently established as true is a question which does not arise in an enquiry as to whether the matter is properly before the Court in terms of s 85(1).  …  What matters is that she alleged a violation of a fundamental human right, and as such, the Court was properly seized with the matter. The question of the veracity of the allegation would have been tested on the basis of evidence placed before the Court." (My emphasis).

[37]	In casu, the draft founding affidavit has no specific allegation by the applicant that any of his rights were violated. Although the applicant has narrated a myriad of ordeals that he alleges being subjected to by the respondent's officials, his lecturers, and state security agents, those accounts do not disclose a cognisable basis for concluding that this Court would have jurisdiction to determine his application. In other words, there are no averments detailing  the violation of specific rights as enshrined in the Constitution either individually or jointly by the variously named individuals and entities that he mentions in the affidavit. Of even more significance is that the entire draft application fails to establish a cause of action. I find that the applicant fails to set out all the essential averments for each of the alleged infringements of his rights under ss 51, 53, 56, 69, and 75 of the Constitution in the draft founding affidavit.

[38]	On the contrary, the draft founding affidavit is replete with largely irrelevant accounts of how his lecturers would malign him, of how the computer he used to sit for his EC 217 examination froze during the entire examination and even allegations of how he approached legal practitioners who revealed "gross anti-therapeutic jurisprudence" and who "ordered him to pay disbursements in USA Dollars (sic)." Indeed the draft founding affidavit does not comply with the requirement of precision. It is long, rambling, and repetitive. Such a manner of pleading is tantamount to a failure to observe the provisions of r 14(4) (a), (d), and (e). In conclusion, the application conflicts with s 167(2)(b). There is on the papers no constitutional matter raised for determination by the Court.

[39]	The affidavit is not concise and raises irrelevant matters. It is, as a consequence, not in tandem with the provisions of r 14 (4).  It does not set out the facts or the law forming the basis upon which the Court has jurisdiction. Lastly, there is no cause of action pleaded. The above reasons would justify the matter being struck out for want of jurisdiction on the part of the Court and lack of causa. However, the applicant has relied on r 21 as the basis of his application, and it is only proper that the application be considered as well in light of the rule under which he has approached the Court for leave for direct access. This is because this is the rule that delineates what the interests of justice encompass.

I turn now to consider the provisions of r 21.

WHETHER OR NOT IT IS IN THE INTERESTS OF JUSTICE TO GRANT LEAVE FOR DIRECT ACCESS

[40]	The Court holds that it is not in the interests of justice to grant leave for direct access to the applicant. The requirements in an application for leave for direct access to this Court are now settled. They can be found in r 21(3) of the Rules, which states:

"(3)	An application in terms of subrule (2) shall be filed with the Registrar and served on all parties with a direct or substantial interest in the relief claimed and shall set out –

(a)	the grounds on which it is contended that it is in the interests of justice that an order for direct access be granted; and

(b)	the nature of the relief sought and the grounds upon which such relief is based; and

(c)	whether the matter can be dealt with by the court without the hearing of oral evidence or if it cannot, how such evidence should be adduced and any conflict of facts resolved."

[41]	Within this jurisdiction, case authority from this Court is in complete accord with the legal position that the interests of justice are the fundamental consideration in an application for leave for direct access. The interests of justice are set as the primary consideration in terms of s 167(5) of the Constitution and they also take centre stage in r 21. The factors that may be considered in this endeavour are far from exhaustive and, while it may not be practicable to set out all the specific factors comprising the interests of justice, r 21(8) provides a list of some of the main ones. These are set out below:

"(8) In determining whether or not it is in the interest of justice for a matter to be brought directly to the court, the court or judge may, in addition to any other relevant consideration, take the following into account—

the prospects of success if direct access is granted;

whether the applicant has any other remedy available to him or her;

whether there are disputes of fact in the matter."

[42]	Crucially, the specialised status of this Court has been emphasised in several decisions which have spelt out that direct access, being an extraordinary remedy, should only be afforded in exceptional circumstances. This position has found expression and has been reaffirmed in the following cases, Lytton Investments (Pvt) Ltd v Standard Chartered Bank Zimbabwe Ltd & Anor 2018 (2) ZLR 743 (CC) at p.749D, Sadziwani v Natpak (Pvt) Ltd & Ors CCZ–15–19 at p. 17 and Museredza & 303 Ors v Minister of Agriculture Lands, Water, and Rural Resettlement & Ors CCZ–1–22 at p. 5, para 10. Consequently, when one considers the particular jurisdiction of the Court and considers that direct access is an extraordinary remedy, the procedure for seeking leave is imbued with a crucial gatekeeping function. Therefore, in this exercise, an applicant seeking direct access invites a judge to judiciously assess whether the scales of justice will be tipped in favour of granting or refusing the application.

[43]	In light of this, determining the prospects of success accords with the principle of the above-mentioned gate-keeping function in respect of applications for leave for direct access. Even though other considerations of similar weight are taken into account during the assessment of the interests of justice, such as the constitutional importance of an issue, the prospects of success remain a distinctly relevant consideration. I, however, hasten to point out that the preceding comments should not be taken to mean that the prospects of success are the overriding determinant of the interests of justice.

[44] Commenting on the prospects of success in an application such as the present, M du Plessis, G Penfold, and J Brickhill Constitutional Litigation (2013) at p89 state that:

"An applicant for direct access must make out at least a prima facie case on the merits of the matter. Applicants should also clearly set out the relief sought. Of course, predictably, the court will not be inclined to grant direct access to an applicant who is unlikely to be successful on the substantive issues raised, as to do so would waste judicial resources. It should also be borne in mind that reasonable prospects are not a sufficient basis to be granted direct access. The other requirements for approaching the court directly should also be satisfied."

[45]	In S v Dinha CCZ–11––20 at p. 6, Malaba CJ made instructive remarks on what amounts to prospects of success. The learned Chief Justice stated that:

"In assessing the prospects of success, the court is tasked with assessing whether the applicant has established a prima facie case which justifies that he be given a day in court. More is required to be established than that there is a mere possibility of success."

See also Mpofu v Zimbabwe Energy Regulatory Authority CCZ–13–20 at p. 14, Chiwaridzo v TM Supermarkets (Pvt) Ltd & Ors CCZ–19–20 at p. 5, Mwoyounotsva v Zimbabwe National Water Authority CCZ–17–20 at pp. 6 – 7, para. 19, Makanda v Sande N. O. & Ors CCZ–3–21 at p. 3, and Museredza (supra).

[46] 	The assessment of the prospects of success involves a value judgment consistent with the principles of the law. While it is impractical to pinpoint what would constitute a prima facie case definitively, it seems to me from an analysis of the above authorities that, for a prima facie case to exist, there must be a reasonable likelihood that the applicant will succeed. Glaringly fatal procedural and substantive defects in a draft application or draft founding affidavit will undermine the reasonable probability that the applicant will succeed should he or she be given a day in court.

[47]	It is, therefore, of critical importance to note that, in addition to the above, the Court cannot decide the prospects of success of the intended application without reference to the relief prayed for in that application. The draft order attached to the application is in the following terms:

“1.		The decision to dictatorially and arbitrarily issue the applicant a Stamped Photocopy of his Academic Transcript as a punishment without a breach of Statute, Ordinance, University Regulations, State laws, or other offence is a cruel, unusual, and degrading punishment.

The disciplinary punishment is wholly disparate to his moral deserts and moral reprehensibility therefore be declared unconstitutional, void, and of no effect.

The administrative conduct of BUSE to issue the applicant a Stamped Photocopy of his Academic Transcript on 26 October 2016 without a breach of Statute, Ordinance, and BUSE Regulations is unreasonable in its logic of defiance and therefore be declared null and void. (sic)

4	The issuance of a Stamped Photocopy of his Academic Transcript is illegal and unlawful and therefore be declared null and void.

The applicant seeks and craves a mandamus which directs BUSE to forthwith issue the applicant his Bachelor of Science Honours Degree in Economics (BscEco) Transcript and Certificate in conformity with sec 15 and sec 16 of BUSE General Academic Regulations for Certificates, Diplomas, and Undergraduate Degrees. (sic)

The Academic Results to be issued to the applicant be Bachelor Science Honours Degree in Economics codified as BscEco as evinced by the Student Registration Identification Card of the applicant.

That a final interdict be granted against the BUSE (respondent), ordering it to accord the applicant the normal status granted to any other bonafide student and alumni members as the applicant had left the respondent institution. (sic)

Issuance of a Stamped Photocopy of his Academic Transcript as a punishment by BUSE without a breach of a Statute, Ordinance, BUSE Regulations, or State laws damaged his good proven track reputation and crippled his avenues to partake in social, economic, cultural, and political activities; therefore the applicant seeks and crave to be acquitted and exonerated the criminal liability which he is suffering without committing a breach of statute, ordinance, University Regulations, and state law or any offence.

The applicant seeks and craves the 48-hour ultimatum mandatory interdictory order, which prohibits interdict, and restrains the State Intelligence Service or State Intelligence Security Agents or officers from intimidating, interrogating, harassing, threatening, assaulting, vilifying, and trailing the applicant: (sic)

To halt and refrain from the impunity of offenders against the applicant, asseverating that they are acting on undisputable instruction from the Central Intelligence Service as Central Intelligence Service agents.

To freely accord him a normal status equally as other citizens and to enable him to assert his rights and freedoms equally as other citizens.

To be acquitted and exonerated of the criminal liability which he is suffering without any criminal responsibility, to enable him to partake in social, economic, cultural, and political activities normally as other citizens.

The respondent to pay the costs of the applicant at higher scale.”

[48] 	The conclusion that this Court would not have the requisite jurisdiction to decide the application emanates from the constitutional provisions delineating its jurisdiction and the requirements set out in the Rules. The Court is a creature of statute, in this case, the Constitution, and it is the Constitution itself that provides for the jurisdictional ambit of the Court. Thus, in terms of s 167(1)(b), the Constitutional Court decides only constitutional matters and issues connected with decisions on constitutional matters.

[49] 	I will, at this juncture, restate that the requirements contained in r 14(4) of the Rules aid the attainment of justice far beyond any manner in which they may be regarded as a drawback to the litigation of constitutional matters. Those rules assist litigants in placing before the Court all the relevant details necessary to determine their constitutional causes. Litigants must regard those rules as facilitative of their causes of action. A failure to file applications that conform to the dictates of r 14(4), among other rules, will leave this Court without the necessary jurisdiction or the material facts to dispense justice in constitutional matters, as happened in the instant case. First, the applicant fails to establish that this Court would have jurisdiction to determine the application, and second, the application does not disclose a cause of action. Thus, there would not be a sound basis for granting leave for direct access in respect of an application that would be struck off the roll due to the procedural defect of the absence of jurisdiction. See the decision of the Supreme Court Lunat v Patel S–142–21, per MATHONSI JA at p. 9

WHETHER THE APPLICANT HAS ANY OTHER REMEDY AVAILABLE TO HIM

[50] 	As a separate issue, I have decided to address the question of alternative remedies because of their centrality in determining the present application. This is irrespective of my earlier conclusion that the proposed application does not disclose a cause of action. It is a settled position in constitutional litigation that the availability of any other remedy without the need to interpret or apply the Constitution is a relevant consideration in assessing the interests of justice.

[51]	In the ordinary course, it has been held that it is not in the interests of justice for litigants to approach this Court at first instance when they have other sufficient and equally effective remedies at their disposal. In Chawira & Ors v Minister of Justice, Legal & Parliamentary Affairs & Ors 2017 (1) ZLR 117 (CC) at p. 123C, this Court held that:

"As we have already seen, in the normal run of things, courts are generally loathe to determine a constitutional issue in the face of alternative remedies."

[52]	In the case of Moyo (supra) at 157G, MALABA CJ expounded the rationale for declining to hear a matter where there are alternative or non-constitutional remedies as follows:

"Under a single legal system, laws are enacted to give effect to the Constitution. A remedy that is consistent with the Constitution serves the purposes of the Constitution when it is used in accordance with the provisions of the law by which it is established."

[53]	The respondent averred that the applicant has alternative remedies at his disposal. I agree. First, it stated that the applicant could apply to the University's Registrar for the issuance of a formal transcript of his complete academic record. In this regard, the respondent's General Academic Regulations for Certificates, Diplomas, and Undergraduate Degrees were cited as providing for utilizing this remedy.

[54]	Second, Ms Vera, for the respondent, rightly submitted that the applicant's primary grievance against the respondent is purely administrative in nature. The applicant can approach the High Court for relief. This is particularly the case regarding the allegation that the applicant's rights to administrative justice in terms of s 68 of the Constitution were violated.

[55]	Indeed, it is pertinent to observe that the applicant's draft order to the application betrays his knowledge of the adequacy of the available alternative remedies. Paragraph 3 of that draft order is directed against the administrative conduct of BUSE. Paragraph 5 shows that the applicant acknowledges the adequacy of a conventional mandamus as he states that "he seeks and craves a mandamus." In para 7, the applicant seeks a "final interdict." In para 9, he essentially seeks a prohibitory interdict against "State Intelligence Security Agents." These paragraphs show that the applicant appreciates that remedies in administrative and ordinary common law interdicts are sufficient to address the harm he alleges to have suffered.

[56] 	Ms Vera stated that she had no instructions to consent to the applicant's request for an original copy of his academic transcript. However, she assured the Court that the respondent would have no objection to issuing the said transcript if the applicant requested it. It stands to reason that this course would have amicably settled the dispute. Her response supports the conclusion that the applicant has an adequate alternative remedy at his disposal. In addition, during discourse with the Court, the applicant revealed that he had not engaged the respondent for the documents he sought before launching the application.

[57]	In the premises, it is only proper for this Court to decline to grant leave for direct access to accord the applicant room to utilise the available alternative remedies. It certainly would not be in the interests of justice for this Court to pass the final word on the applicant's cause of action at first instance. The constitutional remedies that the applicant can obtain in this Court must ideally be sought as a last resort in a case such as the present one. A litigant who approaches a final court such as this one at first runs the risk of precluding himself or herself from obtaining any other alternative remedy in the event of dismissing his or her claim on the merits.

DISPOSITION

[58] 	In my view, the application cannot be sustained on the papers before the Court on two bases. Firstly, it fails to set out a constitutional issue capable of triggering the jurisdiction of this Court. Consequently, there is a reasonable likelihood that the Court would strike the matter off the roll for want of jurisdiction. Secondly, and additionally, it does not disclose a cause of action, meaning there is a reasonable likelihood that it would be dismissed because it does not disclose a cause of action. The application has no discernible prospects of success. The interests of justice would not be served by granting leave for direct access in such a matter.

[59]	Regarding costs, the settled practice of this Court is to refrain from granting an order for costs unless exceptional circumstances warrant an award of costs. See Mbatha v Confederation of Zimbabwe Industries & Anor CCZ–5–21 at p. 11. I am unable to find any inappropriate conduct on the applicant's part warranting an award of costs in favour of the respondent. Equally, I am also unable to accede to the applicant's request that the Court order the respondent to reimburse him for the costs he incurred during the preparation of this application. There would be no legal basis for such an order of costs.

[60]	Accordingly, the application is dismissed with no order as to costs.

HLATSHWAYO JCC		:		I agree

PATEL JCC				:		I agree

Tamuka Moyo Attorneys, respondent's legal practitioners.