Ignatius Morgen Chiminya Chombo v Clerk of Court, Harare Magistrates Court (Rotten Row) & 4 Ors

### Preamble
Judgment No. CCZ 12/20
Const. Application No. CCZ 26/19
REPORTABLE (11)
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REPORTABLE (11)

IGNATIUS     MORGEN     CHIMINYA     CHOMBO

v

(1)   CLERK   OF   COURT,   HARARE   MAGISTRATES   COURT  (ROTTEN   ROW)

(2)    BARBRA     MATEKO     N.O.

(3)     L.     NCUBE     N.O.

(4)     NATIONAL     PROSECUTING     AUTHORITY

(5)     JUDICIAL     SERVICE     COMMISSION

CONSTITUTIONAL COURT OF ZIMBABWE

HARARE, FEBRUARY 28, 2020 & JULY 17, 2020

L Madhuku, for the applicant

A B C Chinake, with him Ms T R Phiri, for the first, second, third and fifth respondents

E Makoto, for the fourth respondent

Before: MALABA CJ, In Chambers

AN APPLICATION FOR AN ORDER FOR LEAVE TO APPEAL TO THE CONSTITUTIONAL COURT

This is a chamber application for leave to appeal to the Constitutional Court (“the Court”) against a decision of the Supreme Court (“the court a quo”). The application is made in terms of r 32(2) of the Constitutional Court Rules S.I. 61/2016 (“the Rules”).

The Court holds that it is not in the interests of justice that the applicant be granted leave to appeal against the decision of the court a quo. This is because the matter is admittedly moot. It does not qualify to be heard in terms of the rule allowing for the hearing of matters notwithstanding their mootness.

FACTUAL BACKGROUND

On 10 May 2019 the magistrates’ court issued an order varying the applicant’s bail conditions by allowing him temporary possession of his passport up to 21 June 2019. The passport was duly released to the applicant by the first respondent. As the applicant was about to board a plane to South Africa on 12 May 2019 the passport was taken from him. It was returned to the custody of the first respondent.

It is alleged that the first respondent refused to release the passport to the applicant, thereby prompting him to approach the third respondent seeking an order of mandamus. The third respondent dismissed the application. The third respondent held that the magistrates’ court had no jurisdiction to grant a mandamus and that the proper application to make was one for an order of contempt of court against the officer who seized the applicant’s passport.

Dissatisfied with the decision of the third respondent, the applicant approached the High Court, seeking an order compelling the first respondent to obey the order of the magistrates’ court made on 10 May 2019. His argument was that, under s 164(3) of the Constitution, a mandamus by the High Court was the appropriate remedy. The allegation was that disobedience of a court order is a threat to democracy and the rule of law and that the centrality of s 164(3) of the Constitution to the independence of the Judiciary meant that a mandamus was the proper remedy in the circumstances.

The High Court found that there were alternative remedies that could be used by the applicant to achieve compliance with the order of the magistrates’ court and that the magistrates’ court could still enforce its own orders. As such, the High Court held that it could not “act as a big brother” and enforce magistrates’ court orders in the absence of a review or an appeal. It was further found that this was not the supervisory role of the High Court as contemplated by s 171(1)(b) of the Constitution. Lastly, the High Court stated that the applicant ought to have sought enforcement of the order of the magistrates’ court, instead of seeking the same order from a different court. Consequently, the application for a mandamus was dismissed.

On 4 June 2019 the applicant noted an appeal to the court a quo. It was the applicant’s argument that the High Court misdirected itself in not granting the relief sought because s 164(3) of the Constitution made a mandamus the primary remedy. It was also argued that the High Court has a wider inherent jurisdiction in terms of s 171(1)(a) of the Constitution, which jurisdiction made it the enforcer of s 164(3) of the Constitution. The applicant further contended that the court a quo erred in finding that the High Court could not enforce orders of the magistrates’ court where there was neither an appeal nor a review. Based on the above arguments, the applicant sought the following relief:

“WHEREFORE the appellant prays as follows:

1.	That the appeal succeeds with costs.

2.	That the whole judgment of the court a quo is set aside and, in its place, the following is substituted:

‘The application for a mandamus succeeds. Accordingly:

1.	It be and is hereby ordered that the first respondent (Clerk of Court, Harare Magistrates Court (Rotten Row)) obeys the order of the magistrate’s court issued by the Honourable Barbra Mateko (the second respondent) on 10 May 2019 and release the applicant’s passport to the applicant or his legal practitioners.

2.	The fifth respondent be and is hereby directed to ensure that the first respondent complies with the order in paragraph 1 of this order.

3.	That the respondents who opposed this order shall pay the costs of this application on a legal practitioner and client scale.’”

The appeal was dismissed with costs. The court a quo noted that the order by the magistrates’ court dismissing the application for a mandamus was still extant and binding because it had not been appealed against. It further noted that, under those circumstances, it was remiss of the applicant to seek the same relief in the High Court.

The court a quo further held that the magistrates’ court had a duty to protect its process and contempt of court was the preferred remedy in this regard. It stated that, as the magistrates’ court had the jurisdiction and the means to resolve the primary dispute without resort to the superior courts, the High Court did not err in dismissing the application for a mandamus.

On 9 July 2019 the applicant filed the present application. It was his argument that the appeal in the court a quo raised constitutional issues. He contended that what is at stake is the essence of s 164(3) of the Constitution, insofar as it relates to a mandamus issued by the High Court in respect of orders made by inferior courts. It was contended that the court a quo had before it grounds of appeal which raised constitutional issues and, in dismissing the appeal, the court dismissed all the applicant’s constitutional issues. The contention was that the court a quo should not have ordered the applicant to pay costs, as doing so was against the general rule to the effect that no costs in constitutional matters are awarded against a losing party except in exceptional circumstances.

The applicant admitted in his founding affidavit that the passport that was the subject of the dispute was subsequently released to him on two occasions after the application to the Court was filed. A concession was made that the matter forming the subject of the application had become moot. The argument was that the Court should nonetheless hear and determine the matter, as the taking of the passport could happen again in similar circumstances in the future.

The application was opposed by the respondents on the basis that the applicant had not exhausted the domestic remedies available to him in the magistrates’ court. The further contention was that no constitutional matter was placed before the court a quo for determination.

APPLICATION OF THE LAW TO THE FACTS

The requirements for an application for leave to appeal to the Court were summarised in Bonnyview Estate (Pvt) Ltd v Zimbabwe Platinum Mine (Pvt) Ltd and Anor CCZ 6/19 at p 5 of the cyclostyled judgment. The Court said:

“1.	The applicant must intend to apply for leave to appeal against a decision of a subordinate court on a constitutional matter.

2.	The constitutional question must be clearly and concisely set out.

3.	The applicant must demonstrate prospects of success on appeal.”

Notwithstanding the above requirements, the application can be disposed of by the determination of the question whether the matter is moot and, if so, whether it falls under the exception to the doctrine of mootness.

The mootness barrier usually derives from events which occur when a lawsuit is underway, involving a change in the facts or the law, which deprives the litigant of the necessary stake in the relief sought. The doctrine of mootness requires that an actual controversy be extant at all stages of review and not merely at the time the impugned decision is taken or the review application is made.

In Khupe and Anor v Parliament of Zimbabwe and Ors CCZ 20/19 the Court explained the doctrine of mootness at p 7 of the cyclostyled judgment. The Court said:

“A court may decline to exercise its jurisdiction over a matter because of the occurrence of events outside the record which terminate the controversy. The position of the law is that if the dispute becomes academic by reason of changed circumstances the Court’s jurisdiction ceases and the case becomes moot. It is an established principle of law that not every constitutional point raised by a litigant can be heard by the courts.”

It further stated at pp 12-13 of the cyclostyled judgment as follows:

“The refusal of courts to decide cases which have become moot because of cessation of a dispute between parties derives from the common law notion that the function of a court is limited to determining rights and obligations that are actually controverted in the particular case before the court. In Mills v Green 159 U.S. 651 (1895) at p 653, the Supreme Court of the United States of America held as follows:

‘The defendant moved to dismiss the appeal, assigning as one ground of his motion -

“that there is now no actual controversy involving real and substantial rights between the parties to the record, and no subject matter upon which the judgment of this Court can operate.”

We are of opinion that the appeal must be dismissed upon this ground, without considering any other question appearing on the record or discussed by counsel.

The duty of this Court, as of every other judicial tribunal, is to decide actual controversies by a judgment which can be carried into effect, and not to give opinions upon moot questions or abstract propositions, or to declare principles or rules of law which cannot affect the matter in issue in the case before it. It necessarily follows that when, pending an appeal from the judgment of a lower court, and without any fault of the defendant, an event occurs which renders it impossible for this Court, if it should decide the case in favor of the plaintiff, to grant him any effectual relief whatever, the Court will not proceed to a formal judgment, but will dismiss the appeal. And such a fact, when not appearing on the record, may be proved by extrinsic evidence. Lord v Veazie, 8 How. 251; California v San Pablo & Tulare Railroad, 149 U.S. 308.’” (the underlining is for emphasis)

It is important to note that at the hearing of the matter the applicant conceded that the matter had become moot. This was because the order sought in the court a quo was that the applicant’s passport be temporarily released to him to enable him to travel to South Africa before 21 June 2019. The passport had been released to the applicant, who was able to travel to South Africa on two occasions since the application to the Court was lodged. The release of the passport on the two occasions had occurred without the intervention of the Court.

The applicant argued that the case fell within the ambit of the rule governing matters falling within the exception to the doctrine of mootness. The rule is to the effect that a court retains a discretion to hear a moot case where it is in the interests of justice to do so. The contention by the applicant was that it was “overwhelmingly in the interests of justice” that the full Bench of the Court be seized with the issues that were before the court a quo, notwithstanding the fact that the dispute between the parties had ceased, terminating the claim the applicant had had to the relief sought.

Mr Chinake argued that the matter was moot, as the order sought was no longer capable of fulfilment or enforcement. He also argued that the fact that the applicant subsequently obtained the relief he sought in the court a quo confirmed the correctness of the decisions of the lower courts. The contention was that determining the matter as falling under the exception to the doctrine of mootness would involve the Court in the determination of matters that would have been resolved by the lower courts in favour of the applicant.

It is settled law that a court retains the discretion to hear a matter even where it has become moot. The overriding consideration is whether or not it is in the interests of justice that the matter be heard. In Van Wyk v Unitas Hospital (Open Democratic Advice Centre as Amicus Curiae) [2007] ZACC 24 at para 29, the Constitutional Court of South Africa has the following to say on some of the factors a court may take into account in deciding whether or not to exercise its discretion to hear an otherwise moot matter:

“[29]   It is by now axiomatic that mootness does not constitute an absolute bar to the justiciability of an issue.  The Court has a discretion whether or not to hear a matter.  The test is one of the interests of justice.  A relevant consideration is whether the order that the Court may make will have any practical effect either on the parties or on others. In the exercise of its discretion the Court may decide to resolve an issue that is moot if to do so will be in the public interest.  This will be the case where it will either benefit the larger public or achieve legal certainty.”

A litigant seeking to have a matter that is moot determined by the courts must establish exceptional circumstances which justify the hearing of the matter. The question is whether the applicant has established just cause for the matter to be considered as falling under the exception to the doctrine of mootness.

In explaining the justiciability of a matter that is moot, the Constitutional Court of South Africa in Afriform NPC and Others v Eskom Holdings SOC Limited and Others [2017] ZAGPPHC 199 said the following at paras 104, 111 and 112:

“104. The parties’ debate about mootness engages the broader question of justiciability. Not every constitutional argument raised by litigants is deserving of judicial consideration. The doctrine of justiciability permits courts to avoid rendering decisions where an insufficient legal interest is impacted. Justiciability is not a legal concept with fixed content. Courts apply it in response to subtle pressures regarding the appropriateness of the issues for decision and the actual hardship to the litigants of denying them the relief sought.

…

111. But even where there has been permanent acquiescence or cessation, there may still remain a public interest in having the legality of the practice settled. Courts retain a discretion to hear matters where there is no live controversy when it is in the interests of justice to do so. The onus rests on the party seeking to have the matter heard to show that there are sufficiently exceptional circumstances for the exercise of this discretion.

112. A prerequisite for deciding an issue despite the fact that it is moot is that any order the court may make must have some practical effect on the parties or someone else. Relevant factors include the nature and extent of the practical effect that any possible order might have, the importance of the issue, its complexity and the fullness or otherwise of the argument that has been advanced by the parties.” (the underlining is for emphasis)

The Court is of the view that the applicant has failed to show exceptional circumstances that justify the hearing of the matter under the exception to the doctrine of mootness. The order to be given by the Court would certainly not have any practical effect on the applicant’s case or be of any benefit to the public. As regards the argument that what happened to the applicant may happen to another person, the Court must distance itself from the applicant’s speculative apprehensiveness.

No compelling reason was advanced to justify the Court exercising its discretion to determine that it is in the interests of justice that the matter be heard notwithstanding the fact that it is moot.

COSTS

It was the respondents’ argument that the applicant had unnecessarily dragged them to the Court when the matter was moot. The argument was that the ordinary rule regarding costs in constitutional matters must be vacated and the applicant mulcted with an order of costs. The applicant reasoned that there was no justification for an order of costs because the arguments he made were reasonable, even if they did not find favour with the Court.

The general position is that costs are not usually ordered against an unsuccessful litigant in constitutional matters except in very limited circumstances, for instance in cases involving frivolous or vexatious litigation. In the instant case, the most important factor is that the applicant conceded that the matter was moot. He did not attempt to waste the Court’s time by arguing that it was not. His arguments were centred on the applicability of the exception to the doctrine of mootness.

In the circumstances, there is no justification for the departure from the general rule pertaining to costs in constitutional litigation.

DISPOSITION

The application is dismissed with no order as to costs.

GOWORA AJCC:	I agree

HLATSHWAYO AJCC:	I agree

Lovemore Madhuku Lawyers, applicant’s legal practitioners

Kantor & Immerman, first, second, third and fifth respondents’ legal practitioners

National Prosecuting Authority, fourth respondent’s legal practitioners