Frank Buyanga Sadiqi v Chantelle Tatenda Muteswa

### Preamble
Judgment No. CCZ 14/21
Constitutional Application No. CCZ 19/21
Constitutional Application No. CCZ 21/21
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REPORTABLE:   (14)

(i)

FRANK     BUYANGA     SADIQI

v

CHANTELLE     TATENDA     MUTESWA

(ii)

FRANK     BUYANGA     SADIQI

v

CHANTELLE     TATENDA     MUTESWA     (2)     KILLIAN     KAPFIDZA     (3)     COMMISSIONER     GENERAL     OF     POLICE     N.O.     (4)     REGISTRAR     GENERAL     N.O.     (5)     CHIEF     IMMIGRATION     OFFICER     N.O.     (6)     MINISTER     OF     JUSTICE     LEGAL     AND     PARLIAMENTARY     AFFAIRS     N.O.     (7)     SOUTH     AFRICAN     AIRWAYS

CONSTITUTIONAL COURT OF ZIMBABWE

GARWE JCC, HLATSHWAYO JCC & PATEL JCC

HARARE: 19 OCTOBER 2021

T. L. Mapuranga, for the applicant

C. Damiso, for the first respondent

O. Zvedi, for the third, fourth, fifth and sixth respondents

PATEL JCC:	The two matters herein are applications for leave to appeal, lodged in terms of r 32(2) of the Constitutional Court Rules 2016, against two separate judgments of the Supreme Court. The first judgment (No. SC 131/21) was handed down in Case No. SC 153/20, while the second judgment (No. SC 132/21) was delivered in Case No. SC 125/21.

At the hearing of these applications, both matters were consolidated with the consent of all the parties represented at the hearing. Thereafter, having considered submissions by counsel, the Court made the following order in respect of both consolidated matters:

1. 	In view of the applicant’s conduct in flagrant violation of various court orders 	made by the Magistrates Court, the High Court and the Supreme Court, this Court accordingly withholds its jurisdiction to entertain the applications in Case Nos. CCZ 19/21 and CCZ 21/21.

2. 	Both matters are struck off the roll with the applicant paying the costs of 	both applications on the scale of legal practitioner and client.

3.		The reasons for this decision are to follow in due course.

The reasons aforementioned are set out hereunder. As earlier indicated, they relate to both applications in casu.

The background

The principal parties in both matters are the applicant and the first respondent. The applicant is the father of the minor child, who is now 7 years old, while the second respondent is the mother of the child, having been romantically involved with the applicant in an unsolemnised union. They are embroiled in a bitter wrangle over the custody and guardianship of their minor son. This dispute has spilt over into the entire panoply of our courts, from the Magistrates Court, the High Court and the Supreme Court, and eventually into this Court.

The second respondent, who did not appear herein, is the alleged accomplice of the applicant involved in the abduction of the minor child from the first respondent. The third to the sixth respondents are the respective heads of various State agencies and institutions and are cited in their official capacities. The seventh respondent is an international airline, plying the route to and from Zimbabwe and South Africa at the relevant time.

In the first matter (CCZ 19/21), the central question concerned the constitutionality of the common law position governing the custody and guardianship of children born out of wedlock. The applicant approached the High Court for joint custodial and guardianship rights over the minor child. The High Court ruled in favour of the applicant and held that the common law position affording sole custody and guardianship of a child born out of wedlock to the mother was inconsistent with the Constitution. On appeal by the first respondent to the Supreme Court, the appeal was partially allowed. The court agreed with the High Court on the constitutional point but remitted the matter to that court to conduct an inquiry as to whether joint custody and guardianship was in the best interests of the child and, thereafter, to make an informed decision on the strength of its findings.

The applicant now seeks leave to appeal against the decision of the Supreme Court. He contends that he has an immutable constitutional entitlement to joint custody and guardianship as the father of the child. The first respondent, on the other hand, submits that the constitutional questions raised by the applicant were disposed of in his favour by the Supreme Court, which upheld the position taken by the High Court on children born out of wedlock. In any event, so she avers, the best interests of the child must be considered first before any decision is made as to the custody and guardianship of the child. As against this, the applicant nevertheless maintains that the Supreme Court erred by imposing a condition precedent to the enjoyment of joint parental rights.

In the second matter (CCZ 21/21), the first respondent lodged an urgent application in the High Court to compel the applicant and the second respondent to return her minor child who was allegedly forcefully abducted from her custody. The High Court ruled in favour of the first respondent and ordered the applicant to return the child to her custody. The court also mandated the third respondent, the Commissioner General of Police, to arrest the applicant in the event that he failed to comply with its order. Additionally, the fifth respondent, the Chief Immigration Officer, was ordered to prevent any attempt by the applicant to remove the child from Zimbabwe. Subsequently, an appeal by the applicant to the Supreme Court was deemed abandoned for his failure to inspect the court record. The applicant then applied for condonation and the reinstatement of his appeal. This application was opposed by the first respondent on the preliminary point that the applicant was in contempt of four court orders relating to the subject matter of the appeal. She queried the validity of the application for condonation and reiterated that the applicant had shown utter disdain for the authority of the courts. The Supreme Court partially upheld the first respondent’s point in limine and postponed the hearing of the application until the applicant brought back the minor child to the court’s jurisdiction and presented him to the court.

In the application for leave to appeal before this Court, the applicant avers that the decision of the Supreme Court violated his right to be heard. He asserts that the right of access to the courts is not dependent on compliance with the law. He relies in this respect on the provisions of s 85(2) of the Constitution relating to the dirty hands doctrine as well as the provisions of s 85(3)(c) of the Constitution pertaining to the proscription of undue procedural technicalities. The first respondent counters that there is no valid constitutional issue before this Court. The Supreme Court merely postponed the matter so as to preserve the rule of law and the best interests of the child. The third respondent also makes the point that the Supreme Court did not determine any constitutional issue. He further confirms that the applicant is on the Interpol wanted persons list for having failed to comply with extant court orders.

Violation of court orders

In her opposing affidavit (in CCZ 21/21), the first respondent narrates the conduct of the applicant in reaction to various court orders relating to their dispute. She avers that in March 2020 he kidnapped the minor child and fled the jurisdiction in defiance of the High Court judgment (No. HH 249-20) which ruled that the parties were to have joint custody of the child. She states that she has not seen the child or had any contact with him since that time. She further notes that the authorities in South Africa are working towards getting the applicant extradited to Zimbabwe. Again, it is averred that the applicant fraudulently acquired a passport for the minor child by using a fake court order and took the child out of the country without consulting her in defiance of another High Court judgment (in Case No. 265/20). Lastly, she highlights the fact that the applicant has adamantly failed to comply with both judgments of the High Court as well as the two judgments of the Supreme Court (No. SC 131/21 and No. SC 132/21) which he now seeks leave to appeal against. In the event, she takes the view that the applicant’s “flagrant disrespect for the law and for the rules of the court is staggering” and that “his behaviour towards me with regard to our son is callous and devil-may-care”.

In response to these averments through his answering affidavit, the applicant denies that he kidnapped the minor child or that he deprived the first respondent of an opportunity to get in touch with the child. He further denies that he fraudulently acquired the child’s passport and claims that he is unaware of any attempts to have him extradited. The answering affidavit is strangely silent as to the applicant’s position concerning the two judgments of the High Court. As regards the judgments of the Supreme Court, however, the applicant refutes any flagrant disregard of the law. His somewhat cryptically unexplained position appears to be that they were “ex tempo judgments” and that he has applied for leave to appeal against both judgments.

In light of these affidavits, Ms Damiso, for the first respondent, submitted that the applicant should not be heard because he was in flagrant violation of extant court orders. This Court should therefore withhold its jurisdiction on the basis of the dirty hands doctrine.

Mr Mapuranga, for the applicant, initially took the stance that the applicant had applied to this Court for leave to appeal against the decisions of the Supreme Court because that court had erred on constitutional points of law. For this reason, the dirty hands doctrine should only be addressed when dealing with the merits of the matter. However, following an exchange with the Court, and presumably having realised that his approach was procedurally incoherent, Mr Mapuranga eventually abandoned his initial stance. He conceded that he could not meaningfully dispute the violation of extant court orders by the applicant. He accordingly prayed for a ruling on the point in limine that was just in the circumstances of the case.

Ms Zvedi, for the third to the sixth respondents, endorsed the position taken by the first respondent. Because of the applicant’s outright disrespect for court orders and the fact that he is a wanted person on the Interpol list, she submitted that this Court should withhold its jurisdiction to hear the matter.

Having regard to the clear evidence on record, there can be no doubt that the applicant has been and continues to be in flagrant violation of several extant orders of the High Court and the Supreme Court. These include the following:

(i) 	Order of Manzunzu J, dated 19 June 2019, that the applicant should not 	remove the minor child from Zimbabwe.

(ii) 	Order of Zhou J, dated 18 March 2020, that the applicant and the first 	respondent should exercise joint custody of the child.

(iii) 	Order of Manzunzu J, dated 16 April 2020, that the applicant should return 	the minor child to Zimbabwe.

(iv) 	Order of Uchena JA, dated 16 June 2021, that the minor child be brought 	back to Zimbabwe and presented to the court.

(v)	Order of the Supreme Court, dated 12 October 2021, that it would 	withhold its jurisdiction on appeal by the applicant until he had purged his 	violations and brought the child back to Zimbabwe.

The dirty hands doctrine

The doctrine of dirty hands is now firmly entrenched in this jurisdiction. In essence, it precludes any person who is in breach of an extant court order from seeking or receiving audience before any court, unless and until he has purged his violation of that order. The party concerned must first comply with the law and argue his case afterwards. In effect, he is not barred from approaching any court but must comply and approach the court with clean hands.

In Nhapata v Maswi & Anor SC 38/16, at p. 5, Gwaunza JA (as she then was) lucidly explained the twofold rationale underlying the doctrine. The first is that every court order, whether or not it is correctly pronounced, enjoys a presumption of validity until declared otherwise or set aside by a court of competent jurisdiction. It must be complied with. The second rationale, as succinctly articulated by Chidyausiku CJ, in Associated Newspapers of Zimbabwe (Pvt) Ltd v Minister of State for Information and Publicity & Ors SC 07/03, is that the courts cannot connive at or condone any defiance of the law because citizens are obliged to obey the law of the land in order to gain access to the courts.

Section 69 of the Constitution enshrines and protects the right to a fair hearing. It guarantees that the courts are open to every person. However, this is subject to the rules put in place to regulate court proceedings and bring order to the justice delivery system. When the dirty hands doctrine is applied to refuse to entertain a litigant who is in violation of a court order, he is not being denied the right to a fair hearing. This is actually a measure that is necessary to preserve the dignity and authority of the courts so that the citizenry at large can continue to enjoy the right to a fair hearing. It is an essential part of the inherent power that the courts enjoy so as to protect their own processes. All that the litigant is required to do to restore his standing before the courts is to simply comply with the judgment or order that he is called upon to obey.

In casu, in order to justify his arrant disdain for judicial authority and obdurate refusal to comply with the extant judgments that bind him, the applicant purports to rely upon various provisions of the Constitution. In particular, he invokes ss 69(3), 85(2) and 85(3)(c) to further his legally unsustainable and deplorable conduct.

Section 69 of the Constitution enunciates, inter alia, the right of access to the courts. Section 69(3), in particular, stipulates that:

“Every person has the right of access to the courts, or to some other tribunal 	or forum established by law for the resolution of any dispute.”

As I have already stated, the applicant is not being denied or deprived of the right to access any court. He already has one foot within the door of every court that he has been involved with. His ability to obtain full entry into any such court is trammelled by what one might call “the security checkpoint” that regulates the entry of every litigant into that court. In order to pass through the door, he must demonstrate that he is not “a security risk” to the court and its orderly administration and operation. In that regard, he is called upon to obey and comply with such orders of the court as are binding upon him. In the course of so doing, he might have to retreat temporarily and surrender some ground in his battles with the first respondent. But once he has done so, he will have regained his capacity to continue with the war without any legal restraint or impediment.

Section 85 of the Constitution provides for the enforcement of fundamental human rights and freedoms. Section 85(1) declares that:

“Any of the following persons, namely – ……..; is entitled to approach a court, 	alleging that a fundamental right or freedom enshrined in this Chapter has been, is 	being or is likely to be infringed, and the court may grant appropriate relief, 	including a declaration of rights and an award of compensation.”

Section 85(2) is the specific provision which the applicant relies upon in casu. It states as follows:

“The fact that a person has contravened a law does not debar them [sic] from 	approaching a court for relief under subsection (1).”

The fundamental fallacy in the applicant’s reliance upon the apparently generous wording of s 85(2) is immediately self-evident when that provision is construed in conjunction with s 85(1). Even if in terms of s 85(2) a litigant with dirty hands is not debarred from approaching a court for relief under s 85(1), the relief envisaged under the latter provision would be contingent upon and explicitly referable to an alleged infringement of a fundamental right or freedom. In other words, s 85 is specifically designed to regulate suits seeking to enforce the Declaration of Rights. It does not apply to any other form of litigation.

The application mounted by the applicant in the court a quo (in Case No. SC 125/21) was lodged to seek condonation for the late noting of an appeal. It was made in terms of the relevant rules of the Supreme Court. It was quite clearly not an application alleging any infringement of a fundamental right or freedom. Equally clearly, it did not seek any relief consequent upon the establishment of any such infringement. As I have already stated, s 85(2) of the Constitution is confined to access to the courts for the particular purpose of enforcing the Declaration of Rights. It has no bearing whatsoever upon the circumstances of this case.

Last but not least, the applicant endeavours to bolster his position by relying upon the restriction against procedural technicalities enjoined by s 85(3) of the Constitution. That provision, in its relevant portions, reads as follows:

“The rules of every court must provide for the procedure to be followed in 	cases 	where relief is sought under subsection (1), and those rules must ensure that –

(a) 	……..;

(b)	 ……..;

(c) 	the court, while observing the rules of natural justice, is not 			unreasonably restricted by procedural technicalities; and

(d) 	…….. .”

Again, taken in their proper context, the provisions of s 85(3)(c) are limited to the procedure to be followed in cases where relief is sought under s 85(1),  viz. relief attendant upon an alleged infringement of a fundamental right or freedom. In such cases, it is obviously necessary that the court seized with the matter should not be unduly restrained or hindered by procedural technicalities so as to ensure the unabridged enforcement and enjoyment of fundamental rights and freedoms.

In casu, as I have already noted, the proceedings a quo were not in any way connected with the alleged infringement and consequent remediation of any fundamental right or freedom. It follows that the provisions of s 85(3)(c) cannot be applied to afford any meaningful assistance to the applicant. In any event, it seems quite preposterous to contend, as the applicant does, that the application of the dirty hands doctrine, predicated as it is on the need to safeguard and preserve the integrity of the courts and the administration of justice, should be casually relegated to the realm of mere procedural technicalities.

To conclude this aspect of the matter, I am amply satisfied that the discretionary application of the dirty hands doctrine, as postulated in this jurisdiction, does not per se operate to violate or impinge upon any fundamental right or freedom. This Court is therefore perfectly entitled to withhold its jurisdiction to entertain the applications in casu. It is for this reason that we declined to hear the merits of the matter.

Locus standi of fugitive from justice

There is a further dimension to the applicant’s indisputably indefensible conduct that operates to exacerbate his casually contemptuous and insolent nonchalance. This arises from the fact that he is a fugitive from justice. According to the papers filed of record, emanating from the third respondent’s Criminal Investigation Department and dated 7 July 2020, he has been placed on the Interpol Red Notice and is subject to a warrant of arrest for the crimes of kidnapping, robbery and contempt of court. In short, he epitomises the classic case of “a wanted criminal”.

The applicant’s status as a fugitive from justice constitutes an additional factor placing him beyond the bounds of the Court’s jurisdiction. This aspect was exemplified in the judgment of the High Court in S v Neill 1982 (1) ZLR 142 (HC), where the appellant had apparently failed to report to the Police as required by his conditions of bail and a warrant for his arrest had consequently been issued. The court declined to entertain his appeal and struck it off the roll. It reasoned as follows, at 145:

“But the appellant is a fugitive from justice in the sense that, having been 	convicted by a court of this country, he has fled its jurisdiction and, by doing 	so, has effectively set its laws at nought. Whatever his motive was for so acting, he 	has shown by so doing that he is not prepared to accept or abide by decisions of our 	system of courts and the effect of those decisions if they should be to his serious 	disadvantage. And, by fleeing the country and still prosecuting his appeal, he is 	wanting to seek the relief which is available from these Courts, but without being 	prepared to submit himself to them if he is unsuccessful.

Despite the concession by Mr Deeks, I am not at all sure that there is a 	discretion in the court where a litigant is a fugitive from justice. The matter, 	after all, is one of locus standi in judicio, the right and basis to approach the 	court for relief. And in our law it seems to be clear that the only category of 	person who has absolutely no right to institute proceedings at law is the 	fugitive from justice or outlaw.”

Similarly, in the case of Sylow v The State HH 136-02, the court applied the reasoning in Neill’s case, supra, and several other South African cases dealing with fugitives from justice. It declined to determine the appeal in the appellant’s absence. It was held, at p. 13:

“It would appear from the foregoing that the appellant is not in a different 	situation to Chetty’s case, where the court in that case considered him a 	fugitive from justice. As long as the appellant has not purged his contempt, that is, 	having breached the terms of his bail conditions by being out of the jurisdiction of 	this court, he must be regarded as a fugitive from justice. For this court to hear his 	appeal in his absence ‘would be stultifying its own processes and conniving at and 	condoning the appellant’s actions’ …….. .”

The question of costs

As regards costs, Ms Damiso submitted that the applicant should be mulcted with an order of costs on the higher scale in respect of both applications. She motivated and justified this position on the exceptional circumstances of the case, to wit, the applicant’s flagrant disregard of court orders. Ms Zvedi echoed this position and also claimed costs on the higher scale. Mr Mapuranga reiterated the general rule that no costs should be awarded in constitutional matters. He conceded, however, that if costs were to be awarded against the applicant, they should be on the ordinary scale.

It is the established practice of this Court, as a general rule, not to award costs against any party in constitutional cases. However, there are recognised exceptions to the general rule, even in constitutional litigation. Thus, an unsuccessful litigant may be penalised with an order of punitive costs where he “is shown to have acted with improper motive, or has abused court process; has conducted the case in a vexatious manner, has not properly adhered to the rules of court, has made sustained and unwarranted attacks on other litigants or witnesses or judicial officers concerned or has not pursued the claim in good faith.” See De Lacy & Anor v South African Post Office 2011(a) BCLR 905 (CC), at para. 117; cited and applied with approval by this Court in Chiite & Ors v The Trustees of the Leonard Cheshire Homes Zimbabwe Central Trust CCZ 10/17, at p. 6, in relation to the deliberate abuse of court process by the appellants. The catalogue of misdemeanours in the passage quoted above is not exhaustive and may be conditioned by the particular circumstances of each case.

In the present matter, there is absolutely no doubt in my mind that the applicant has acted with improper motives in flagrant abuse of court process. In effect, he has not pursued his suits in good faith. He abducted the minor child in question and removed him from Zimbabwe and has thereafter failed to return the child to this jurisdiction. His conduct hitherto has been deliberately carried out in brazen violation of several extant orders of the High Court and the Supreme Court. To crown his singularly opprobrious conduct, he has not allowed the young child access to or interaction with his mother since March 2020 when he allegedly abducted the child. Moreover, as I have earlier elaborated, the applicant is also a fugitive from justice.

For all of the foregoing reasons, the court was of the unanimous view that the applicant’s egregiously reprehensible conduct warranted an order of punitive costs. Both applications were accordingly struck off the roll with costs on the scale of legal practitioner and client.

GARWE JCC:			I agree

HLATSHWAYO JCC:		I agree

Rubaya & Chatambudza, applicant’s legal practitioners

Women and Law in Southern Africa, 1st respondent’s legal practitioners

Civil Division of the Attorney-General’s Office, 3rd, 4th, 5th and 6th respondents’ legal practitioners