Jayesh Shah v Charles Nherera

### Preamble
Judgment No. CCZ 9/25
1
Constitutional Application No. CCZ 51/24
REPORTABLE (7)
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REPORTABLE (7)

JAYESH     SHAH

v

CHARLES     NHERERA

CONSTITUTIONAL COURT OF ZIMBABWE

GARWE JCC, MAKARAU JCC & GOWORA JCC

MONDAY, 27 JANUARY AND 21 JULY 2025

Application for Direct Access.

L Madhuku, for the applicant.

T Magwaliba, for the respondent.

Makarau JCC-

[1]	This is an application for direct access in terms of s 167(5) of the Constitution.  It is brought under r 21 of the Constitutional Court Rules, 2016. The applicant contends that it is in the interests of justice that he be granted leave to approach this court directly following the handing down of a judgment by the Supreme Court in case number SC 08/22, bearing the judgment number SC 55-24 (“the judgment a quo”). If granted leave, it is the applicant’s intention to file a substantive application with this Court, under s 85 (1) of the Constitution, alleging that, in determining the appeal under SC 08/22 which disposed of a non-constitutional matter, the Supreme Court decision violated his rights to a fair hearing and to the equal protection and benefit of the law.

[2]	The application is opposed.

BACKGROUND FACTS.

[3]	The facts giving rise to this application are fully set out in the Supreme Court judgment, (“the judgment a quo”). I cannot improve upon its presentation of the facts. However, for the purposes of this application, it is necessary that I outline, in very broad strokes, the litigation history of the appeal a quo.

[4]	The whole saga started more than twenty years ago when the respondent was chairperson of the Zimbabwe United Passenger Company (ZUPCO), a public transport entity in which the government had an interest.  At the time, the applicant also had interests in a private corporation, Gift Investments (Private) Limited.  The two corporations had commercial relationships.

[5]	The first relationship was one of tenancy.  Gift Investments (Private) Limited leased certain premises from ZUPCO.  It was sued for eviction from the premises.  The High Court ordered its eviction, and the order was upheld on appeal.  The ratio decidendi of both the High Court and Supreme Court decisions was the fact that the applicant had paid a bribe to the respondent to renew the lease agreement.

[6]	In the second relationship, Gift Investments (Private) Limited supplied buses to ZUPCO.  Allegations were made that the respondent had solicited a bribe for the purchase of the buses by ZUPCO from Gift Investment’s (Private) Limited.

[7]	In 2005, both the applicant and the respondent were arrested on corruption charges.  The applicant was granted immunity from prosecution on condition that he testified against the respondent, which he duly did. The respondent was convicted of the charges and sentenced to an effective two-year term of imprisonment.

[8]	The respondent appealed to the High Court against both the conviction and the sentence.  The conviction was overturned and the sentence quashed on November 19, 2009.  By this time, the respondent had already completed serving the two-year sentence that had been imposed upon him by the trial court.

[9]	On 30 November 2011, the respondent then sued the applicant for damages for malicious prosecution, arrest and detention in the sum of US$400 000.00.

[10]	The matter proceeded to trial, and, at the close of the respondent’s case, as plaintiff, the trial court granted the applicant absolution from the instance, upholding his contention that the respondent had failed to establish a prima facie case.  The respondent successfully appealed against the order granting absolution, and the matter was remitted to the trial court for continuation.  In remitting the matter for the trial to continue, the Supreme Court made certain findings of fact in favour of the respondent’s case.  I shall hereafter refer to this judgment reversing the order of absolution, for want of a better term, as the “first appeal judgment.”  At the continued trial, the appellant gave evidence, after which judgment was entered against him.  The trial court granted the respondent damages in the sum of US$ 30,000.00 for malicious prosecution and US$ 100,000.00 for malicious arrest and detention.  The damages were to be paid at the equivalent rate of the local currency of RTGS, reckoned at the time of payment.

[11]	Clearly unhappy with the turn of events, the applicant appealed to the court a quo, raising seven grounds of appeal.  Two of the grounds were withdrawn at the hearing of the appeal, leaving five.  The five remaining were framed as follows:

“The court a quo erred and misdirected itself in law in holding that the dicta of   this Court in Nherera v Shah SC 51/19 that there was at the close of the plaintiffs’ case a prima facie case ( a test in any event not applicable to absolution from the instance) mitigating against the grant of absolution from the instance meant that if, in the court’s opinion, the appellant had not controverted      “the prima facie evidence of the plaintiff mutated to proof of the plaintiff’s case on a balance of probabilities”, in entertaining the 1st respondent’s application in the first instance.

The respondent, having relied on the appellant’s affidavit statement to the police, a statement that the appellant had adopted in his evidence before the court a quo in circumstances in which the High Court had found on the basis of the same affidavit statement in Zimbabwe United passenger Company v Shah, which judgment was upheld on appeal to this Court, that the applicant had in fact paid a bribe to the respondent with whom he had a corrupt relationship, the court a quo erred in holding that the appellant had not controverted the “prima facie” evidence of the respondent.

For even the stronger reason, the court a quo erred in finding that the appellant’s statement was not given in good faith and did not constitute reasonable and probable cause but constituted a malicious act wrongful instigating criminal proceedings against the respondent. (sic)

The court a quo, having held that the respondent had not led evidence on the financial prejudice he allegedly suffered in his defence of the criminal proceedings or how he arrived at the sums claimed as damages erred in any event, in not granting absolution from the instance at the close of the trial in respect of the damages claimed.

The court a quo having made a finding of the fact and held in Nherera v Shah 2015 2 (ZLR) 445 that the respondent “did not attempt to show how the damages claimed were arrived at”, which judgment was set aside on a different basis and no further evidence having been led by the respondent since this finding, erred and misdirected itself and acted arbitrarily in awarding damages.”

[12]	At the hearing of the appeal, the court a quo set out the following four as the issues that it had to determine:

Whether or not the court a quo misdirected itself in holding that it was bound by the appeal judgment in Nherera v Shah SC 51/19.

Whether or not the court a quo misdirected itself in holding the appellant liable for damages for malicious arrest, prosecution and detention.

Whether or not the court a quo misdirected itself in awarding damages in favour of the respondent in the absence of evidence from the respondent on how the damages were computed.

Whether or not it was competent for the court a quo to award damages denominated in United States dollars.

[13]	In respect of the first issue, the court a quo held that the trial court was bound by the findings of fact made in the first appeal judgment. It was its specific finding that “the Supreme Court had spoken”, and its judgment had binding effect on the trial court. The court a quo went further to observe that:

“The question pertaining to absolution from the instance at the close of the respondent’s case having been decisively dealt with by a Superior Court, the court a quo could not depart from the judgment in Nherera v Shah (the first appeal judgment). It therefore correctly determined that it was bound and that put to rest the questions on whether the respondent had established a prima facie case that the appellant, without reasonable cause, caused the arrest, prosecution and detention of the respondent by making a patently false report. All that the court a quo was therefore required to do was to determine whether, following the appellant’s evidence in rebuttal, the respondent had established his claim on a balance of probabilities.”

[14]	Regarding the second issue, the court a quo denied any probative value to the evidence that was accepted by the High Court and was upheld by the Supreme Court that the respondent had paid a bribe in respect of the renewal of the lease agreement between Gift Investments (Private) Limited and ZUPCO. In denying any probative value to this evidence, the court a quo held that the findings in those two cases were not relevant to the determination of the trial a quo and this appeal.  In its view, the two cases related to different causes and the respondent was not a party to the proceedings where these findings were made.

[15]	The court a quo further upheld the findings of the trial court on whether or not the applicant had acted with malice and without just cause in making the report against the respondent.  In this regard, the trial court had concluded thus:

“I come to the conclusion that the defendant has done nothing in his testimony to disgorge the prima facie case found to have been established by the plaintiff on appeal.  Therefore, that case has become proof of the absence of reasonable and probable cause for the arrest of the plaintiff.”

[16]	 In answer to the third issue, the court a quo reasoned as follows:

16.1   “It is trite that damages for the cause of action brought by the respondent cannot be computed with mathematical precision.  Because the damages are not capable of precise calculation, the determination of the quantum of damages is within the discretion of the court which must be satisfied that the quantum to be awarded is just and fair. It is therefore not always necessary that a party leads evidence to establish the quantum.”

16.2	The court a quo then concluded:

“The court a quo exercised its discretion judiciously as it took into account the relevant factors requisite in the assessment of general damages for malicious arrest, prosecution and detention.  The reference by the court a quo to lack of evidence to establish the quantum of damages is therefore of no moment.”

[17]	I will pause here to explain that it is not necessary that I deal with the findings of the court a quo regarding the last issue that it had set up for itself.  This is so because the last issue is not part of the grounds upon which this application is predicated.

[18]	In the ultimate, the Supreme Court dismissed the appeal with an order of costs on the legal practitioner and client scale.

[19]	Still unhappy, the applicant filed this application, whose details I now proceed to set out.

THE APPLICATION.

[20] 	In the founding affidavit, the applicant alleges that the decision a quo violated two of his fundamental rights enshrined in Chapter 4 of the Constitution.  These were his fundamental right to a fair hearing enshrined in s 69 (2) of the Constitution and his fundamental right to the protection of the law enshrined in s 56 (1) of the Constitution.

[21]	It was his specific allegation that at the heart of this application are three findings that were made by the Supreme Court in its judgment. These were:

21.1	That the Supreme Court judgment No. 51/19 reversing the order of  absolution from the instance had made findings of fact that were binding on the trial court in the continuation of the trial;

21.2	That previous findings of both the High Court and Supreme Court that indeed he had paid a bribe to the respondent for the renewal of the lease were irrelevant in the proceedings that were before the court; and

21.3	That despite the respondent not having led any evidence in support of the damages claimed, the trial court had power to assess the damages it could award to him.

[22]	As indicated in the opening paragraphs of this judgment, the application is opposed.

[23]	Arguing that the application is an abuse of process, the respondent, in the opposing affidavit, raised a number of what he termed preliminary points.  He argued that the application did not raise any constitutional matter, that it was fatally defective in that the grounds upon which it was alleged that it is in the interests of justice that the applicant be granted leave were not stated ex facie the application; that the draft order attached to the intended application was fatally defective, and, regarding the merits of the application, that nothing shows that the Supreme Court abdicated its responsibility to determine a live dispute between the parties.

[24]	Ultimately, it was argued that the ruling in this case was a typical situation where the principles of finality in litigation and the finality of the Supreme Court's judgment should prevail over all other considerations.

THE WRITTEN SUBMISSIONS

For the applicant.

[25]	In the written submissions, counsel for the applicant starts by restating the test that is laid out in both Lytton Investments (Private) Limited v Standard Chartered Bank Zimbabwe Limited and Another 2018 (2) ZLR 743 (CC) and Denhere v Denhere & Anor 2019 (1) ZLR 554 (CC).  He argues that the test has two components, being a failure by the Supreme Court to act in accordance with the requirements of the law governing the proceedings or a failure to act in accordance with the requirements of the law prescribing the rights and obligations subject to determination.  He further submits that more fundamentally, an irrational decision, without more, satisfies the test in Lytton Investments (Private) Limited v Standard Chartered Bank Zimbabwe Limited and Another (supra) and Denhere v Denhere (supra).

[26]	 It was further and specifically argued that the Supreme Court failed to act in accordance with the requirements of the law governing the proceedings in the following three respects:

26.1	The Supreme Court ignored a trite procedural rule binding on it as an appellate court that a finding of fact in a judgment of a court is binding on all persons whether or not an affected person was party to the proceedings.  If a person affected was not party to the proceedings, he/she may seek to have the finding reviewed but until set aside, that finding is binding.

26.2	The Supreme Court further failed to appreciate the import of another trite   procedural rule binding on it as an appellate court, namely the procedural rule that findings in a judgment of the Supreme Court in an interlocutory appeal on absolution from the instance do not bind the trial court when it continues with the trial. The trial court is only bound by the disposition that sets aside the order of absolution from the instance.

26.3	The Supreme Court acted in an arbitrary manner in not only confirming that a court may grant damages without any evidence being led by the litigant who is awarded the damages but also in finding that courts of law are empowered to engage in outright guesswork in respect of damages without hearing the defendant who is to be ordered to pay those damages.

For the respondent.

[27]	On the other hand, the respondent raised several points in limine, which I have outlined in para 23 above. These related to alleged defects in both the application and the draft order attached to the intended application.

[28]	The respondent maintained his position that no constitutional issue arose from the application. He argued that while the applicant alleges the violation of his constitutional rights, it is clear that his real complaint is against the substantive reasons for the dismissal of his appeal in terms of the judgment of the Supreme Court under SC 55-24.

[29]	On the prospects of success of the substantive application, the respondent submitted that the application had no good prospects of success. He argued that the applicant failed to establish the breach of his s 56(1) right as he failed to establish that there are other litigants who have been treated more favourably who are in his position and circumstances.

[30]	Regarding the alleged violation of s 69(2), the respondent submitted that the applicant did not demonstrate that the Supreme Court disabled itself from determining a dispute that was properly before it. The respondent argued that there was nothing to suggest that the Supreme Court had abdicated its responsibility to determine a live dispute between the parties. Further, he submitted that the applicant was afforded all normal facilities to argue his case on appeal. The respondent argued that the alleged violations of constitutional rights by the Supreme Court sought to resuscitate grounds of appeal on constitutional issues that were raised in the Supreme Court but were abandoned by the applicant.

[31]	And, finally, regarding the assessment of damages, the respondent argued that damages were assessed in accordance with the normal principles for assessing damages. He submitted that the assessment of damages was the province of the High Court and the Supreme Court could not lightly interfere with the discretion of the High Court in that regard. Further, the respondent argued that evidence of the quantum of damages was there on record and the applicant did not lead evidence to challenge the quantum of damages. He further argued that there was no basis for alleging that the amount of damages was plucked from a hat.

ORAL SUBMISSIONS BY COUNSEL

[32]	At the hearing of the application, counsel for the applicant focused on the three alleged infractions by the Supreme Court.  Whist acknowledging that it is not every infraction by the court that will successfully ground an application for leave to access the court directly, counsel argued that the finding by the court a quo that the trial court was bound by the findings of the Supreme Court on appeal subjected the parties to two trials.  The court a quo ought to have corrected the trial court in this regard and its failure to do so was an abdication of its jurisdiction.

[33]	Counsel also submitted that there was no evidence on the damages claimed and awarded.  He submitted that the court a quo held erroneously that it is not necessary always to lead evidence on general damages.   It was counsel’s further submission that the court has no jurisdiction to make a case for the plaintiff where the plaintiff himself fails to make out such a case.

[34]	Counsel did not fully motivate the third alleged infraction by the court a quo in disallowing the evidence of corruption against the respondent, as proved in previous decisions of the High and Supreme Courts in the lease agreement case.

[35]	On his part, counsel for the respondent made three broad submissions.  These were in addition to the points in limine that he had taken in the written submissions and which he was not abandoning.

[36]	The main thrust of the arguments by counsel was his concluding submission.  He submitted that it was not in the interests of justice to interfere with the court a quo's decision, as it is final.

[37]	Regarding the first alleged infraction by the court a quo, counsel sought to demonstrate that it was the principles of law as found by the Supreme Court in the judgment reversing the order of absolution from the instance that were binding on the trial court and not the findings of fact.

[38]	Counsel buttressed the above contention by further submitting that in some instances, the trial court actually arrived at its own factual findings and was not bound by the findings of the Supreme Court on appeal.

[39]	Regarding damages, counsel identified the damages claimed at the trial as being general in nature. He argued that no amount of evidence can prove these. In my view, he was correct.

[40]	At the invitation of the court, he submitted that the draft order filed in the substantive application is fatally defective in that it seeks incompetent relief.

[41]	The above is a summary of the arguments that were made before the Court, and on the basis of which it must determine the application for leave. However, before I analyse the competing arguments, I need to briefly discuss the approach this Court will take in determining the application. This discussion is necessitated by the submission from counsel for the applicant that there are two discernible approaches of this Court in determining applications for direct access following a Supreme Court decision on a non-constitutional matter.

THE LAW.

[42]	To grant or deny an application for direct access is a discretionary exercise by the Court.  This discretion is guided by the provisions of r 21 (8).

[43]	When it comes to allegations specifically impugning a Supreme Court decision as the basis for the application seeking direct access, Lytton Investments (Private) Limited v Standard Chartered Bank Zimbabwe (supra) and Denhere v Denhere (supra) lay down the broad framework or what has now come to be referred to as “the test” to be met on the reviewability of Supreme Court decisions.

[44]	I pause momentarily to remark in passing that the notion acknowledging the reviewability of Supreme Court judgments is an advent of and an interpretation of the Constitution adopted in 2013.   From the reaction of the Court in Matamisa v Mutare City Council (Attorney General Intervening) 1998 (2) ZLR 439 (S), and especially the language employed therein, it appears to me that such a concept was untenable or generally fell to be discouraged under the repealed constitution.  With the advent of the Constitution, which subjects all persons and bodies, including the Supreme Court, to the supremacy of the Constitution, a new jurisprudence has emerged on the reviewability of decisions of the Supreme Court in non-constitutional matters.  Such jurisprudence is naturally still embryonic and consequently thin.  It is, however, discernible.

[45]	Lytton Investments (Private) Limited v Standard Chartered Bank Zimbabwe (supra), the locus classicus on the matter, broke the ground.  After fully acknowledging and recognising that decisions of the Supreme Court in non-constitutional matters have been defined and designated as final by the Constitution, it proceeded to discuss in detail how these decisions are also subject to the supremacy of the Constitution.

[46]	Lytton, though criticised, has been cited with approval in all judgments of this Court on applications for direct access. (See Fairclot Investments (Private) Limited v Augur Investments OA & Others CCZ 16-24.).

[47]	The test laid down in Lytton is, however, not expressed in exact terms. This is understandably so, as the test deals with a seismic shift in the legal system, qualifying as it does the age-honoured supremacy of the Supreme Court in non-constitutional matters, and subjecting the final jurisdiction of the Supreme Court in these matters to the Constitution.

[48]	Fronting the judgment and appearing on p 745 B-C of the judgment, the test is expressed in terms that have not been readily and uniformly understood.  Subjecting the Supreme Court, like any other person or body, to review under s 85 (1) of the Constitution at the instance of a litigant and for the protection of the fundamental rights enshrined in Chapter IV of the Constitution, the test is expressed as follows:

“The Court holds that the remedy provided for under s 85(1) of the Constitution is for the protection of the fundamental rights and freedoms enshrined in Chapter IV from infringement by the conduct of any person or body.  It can be invoked for the protection of a litigant and enforcement of a fundamental right or freedom, where the infringement has disabled the Supreme Court from making the decision on the non-constitutional matter.”  (The underlying is mine.)

[49]	And later on, at p 755 A of the same judgment, still describing the test, the Court had this to say:

“The facts must show that there is a real likelihood of the Court finding that the Supreme Court infringed the applicant’s right to judicial protection.  The Supreme Court must have failed to act in accordance with the requirements of the law governing the proceedings or prescribing the rights and obligations subject to determination.  The failure to act lawfully would have to be shown to have disabled the court from making a decision on the non-constitutional issue”.  (Again, the emphasis is mine.)

[50]	The above passage is invariably cited by all applicants for direct access following a Supreme Court decision and by all courts that have applied the test laid out in the case.  It is cited as representing the essence of the test that has to be passed in challenging a Supreme Court decision on a non-constitutional matter.

[51]	The passage is followed immediately by what I take to be a rationalisation or explanation of the qualification placed on the supremacy and finality of the decisions of the Supreme Court in non-constitutional matters.  It reads:

“The theory of constitutional review of a decision of the Supreme Court in a case involving a non-constitutional matter is based on the principle of loss of rights in such proceedings because of the court’s failure to act in terms of the law, thereby producing an irrational decision.  There must, therefore, be proof of the failure to comply with the law.  The failure must be shown to have produced an arbitrary decision.

Arbitrariness and inconsistencies threaten the claim to judicial authority. The remedy under s 85(1) of the Constitution is not for the protection of fundamental rights and freedoms in the abstract. Concrete review requires that there be clear and sufficient evidence of the facts on the basis of which allegations of infringements of fundamental rights or freedoms are made.”

[52]	The above passage is also cited in full and with approval in Denhere v Denhere (supra) as representing the position of the law.

[53]	It is from these remarks that the position has since been developed that the decisions of the Supreme Court on non-constitutional matters are, in some instances, reviewable and are not always protected by the provisions of s 169 of the Constitution describing and designating such decisions as being final.

[54]	It is my understanding that both Lytton and Denhere make a simple point of law on the reviewability of Supreme Court decisions. It is this. Decisions of the Supreme Court on non-constitutional matters are reviewable if their impact is inconsistent with any provision of the Constitution.   Where the impact of the decision is to infringe upon any of the fundamental rights and freedoms enshrined in Chapter IV of the Constitution, the procedure laid out in s 85 (1) of the Constitution can be invoked to vindicate such rights.

[55]	 I am fortified in my above understanding by the further remarks made in Lytton that:

“The Constitution provides in s 2(1) that any law, practice, custom or conduct inconsistent with it is invalid to the extent of the inconsistency. Conduct is inconsistent with the Constitution when it violates any of its operative provisions. Considering that the Constitution is the supreme law of the land, it follows that any conduct, including a decision of the Supreme Court, which has the effect of infringing a fundamental right or freedom enshrined in Chapter IV of the Constitution would be inconsistent with the Constitution and therefore invalid.”

[56]	It is therefore my understanding that the net effect of the decision in Lytton is to uphold the supremacy of the Constitution at all times and to read s 169 not as a standalone provision but one that is modified by the overarching provisions of s 2 (1). Put positively, the position of the law then becomes that Supreme Court decisions on non-constitutional matters that are consistent with the Constitution are final and cannot be reviewed or appealed against.

[57]	It is inconceivable that s 169 of the Constitution could have countenanced protecting anything other than judgments of the Supreme Court that are consistent with the Constitution. Again, in this regard, I can do no better than cite with approval the remarks by the Chief Justice in Lytton when at p 753 D of the judgment, he observes that:

“The principle of finality enshrined in s 169(1) of the Constitution, as read with s 26 of the Act, does not protect a decision of the Supreme Court from constitutional review when the allegation is that it has violated or is violating a fundamental right or freedom and direct access to the Court is in the interests of justice. To hold otherwise would undermine the supremacy of the Constitution and the rule of law as foundational values and principles of the constitutional order.”

[58]	In giving effect to the broad framework that is laid out in Lytton and Denhere, it is conceivable that the approaches by the different members of this Court may have given the impression of inconsistency.  Two discernible approaches were highlighted by counsel for the applicant as characterising the decisions of this court in applications for direct access seeking to review Supreme Court decisions.  It is not my place to debate the two approaches in this judgment. I have merely set out the law as I understand it, based on the authorities.

[59]	Accepting then as we must, that any decision of the Supreme Court that is inconsistent with the Constitution is invalid, I take the approach that tests the impact of the decision a quo against the provisions of the Constitution.

[60]	I also note in passing that Lytton and Fairclot, among others, refer to arbitrary decisions as giving rise to a s 85 (1) procedure for the protection of the litigant’s right to judicial protection. The judgments do not, however, proceed to explain the content of the right to judicial protection, especially in light of the fairly narrow interpretation that this Court has given to s 56 (1) of the Constitution, which guarantees equality before the law and the right to equal protection and benefit of the law. It is hoped that as the jurisprudence on the reviewability of Supreme Court decisions continues to grow, in an appropriate case, it may become necessary for this Court to re-formulate the test in Lytton with greater precision and especially explain fully the circumstances under which judicial protection is lost and how it can be vindicated.

[61]	I will now analyse the facts of this application using the approach I have outlined above.

ANALYSIS.

[62]	As indicated above, at the centre of this application are three findings made by the Supreme Court.  These are, firstly, that the first appeal judgment made findings that were binding on the trial court during the continuation of the trial, secondly, that previous findings of both the High and Supreme Courts that the applicant had indeed paid a bribe to the respondent were irrelevant in the appeal proceedings; and, finally, that despite the respondent failing to lead any evidence in support of the damages claimed, the trial court had the power to assess the quantum of such damages.

[63]	I deal with the three findings ad seriatim.

Was the trial court bound by the factual findings of the Supreme Court in the first appeal judgment?

[64]	The finding by the Supreme Court that the High Court was bound by the factual findings made in the judgment reversing the order of absolution from the instance cannot be the correct position of the law.

[65]	The appeal against the order of absolution was interlocutory in nature. This is not in dispute.  It is the trite position at law that remarks made during an interlocutory hearing are not binding on the trial court, which is still imbued with the full responsibility and jurisdiction to determine the matter before it.  (See Robin Vela v Auditor-General and Another CCZ10-24).

[66]	In addition to the general legal principles mentioned above, the specific circumstances of this case are noteworthy. The appeal against the order of absolution was considered before the applicant had a chance to testify. As a result, only one version of the facts was presented to both the trial court and the appeal court. At that time, there were no competing facts available for the trial court or the appeal court to make definitive and binding findings.

[67]	Counsel for the respondent, without openly conceding the point, argued that what the Supreme Court held as binding were the principles of law and not the findings of fact. This submission is also not factually accurate, as it is not supported by the language of the court a quo. The court clearly stated it was referring to the findings of fact that had been made on appeal. It referred to the existence of a prima facie case, based on the facts, as having been established on appeal.

[68]	In upholding the view of the trial court that it was bound by the interlocutory judgment of the Supreme Court, the court a quo conflated two legal principles, which, upon closer examination, it would have realised were not of direct application to the appeal that was before it.

[69]	 Firstly, the court a quo invoked the principle of stare decisis in relation to findings of fact.  In its own words, it held:

“The principle of stare decisis is that a lower court cannot depart from findings on questions of fact and law made by a superior court.”

[70]	The trite position of the law is that stare decisis is only applicable to points of law and never on the facts of the matter. In this regard, I cannot improve on the remarks of Malaba CJ in Denhere v Denhere (supra), where he had this to say:

“The words “stare decisis” are Latin words which mean that things that have been decided should be left to stay undisturbed.  The meaning of the doctrine of stare decisis is that when a point of law has been once solemnly and necessarily settled by a decision of a competent court it will no longer be considered open to examination or to a new ruling by the same tribunal or those which are bound to follow its adjudication.” (The emphasis is mine).

[71]	Secondly, the court a quo relied on the principle of the finality of Supreme Court judgments to hold that the trial court was bound by the findings made in the appeal judgment reversing the order of absolution.  Again, I quote what the court said in its own words:

“The Supreme Court had spoken. Decisions of this Court are absolute as the Supreme Court is the final court of appeal in all matters, except in matters of a constitutional nature. The  court in Kasukuwere v Mangwana SC 78/23, at p 17, quoted with approval the case of Lytton Investments (Pvt) Ltd v Standard Chartered Bank Zimbabwe Limited & Anor 2018 (2) ZLR 743 (CCZ) at 757 A

Wherein it was held that:

‘What is clear is that the purpose of the principle of finality of decisions of the Supreme Court on all non-constitutional matters is to bring to an end the litigation on the non-constitutional matters.  A decision of the Supreme Court on a non-constitutional matter is part of the litigation process.  The decision is therefore correct because it is final. It is not final because it is correct.  The correctness of the decision at law is determined by the legal status of finality. The question of the wrongness of the decision would not arise. There cannot be a wrong decision of the Supreme Court on a non-constitutional matter. (Own emphasis)”.

[72]	Whilst the above represents the correct position at law, it was hardly of any application in the circumstances of the appeal.  The decision of the Supreme Court in question was interlocutory and did not dispose of the issues at hand.  The dicta from Lytton cited above apply to the reviewability of final decisions of the Supreme Court and not to interlocutory orders by the court.  The appeal decision in casu was not final in nature, save to direct the trial court to reopen the trial and go into the defence case.

[73]	Where a trial court proceeds to exercise an independent mind over the facts of a matter that is remitted to it after an order of absolution is set aside, it is not interfering with a final decision of the Supreme Court.  This is the procedure that is expected to be adopted. It is the expected norm. To hold otherwise would make our notion and conception of a fair trial spin on its head, as appears to have happened in casu.  I shall return to this point shortly.

[74]	Clearly, the decision a quo on whether or not the trial court was bound by the appeal judgment reversing the order of absolution was based on an incorrect application of the law.  However, this error does not render the decision constitutionally reviewable.

[75]	It is the impact of the decision a quo on the rights of both the applicant and the respondent to a fair trial by an independent and impartial court that has exercised my mind. I shall address this in detail later in the judgment.

[76] 	For completeness, I deal with the other two grounds upon which this application was brought.

[77]	In the second instance, it is alleged that the court a quo wrongly disallowed evidence of corruption on the part of the respondent as found proved in earlier decisions of the court.  Counsel for the applicant did not fully motivate this ground, being satisfied with the infractions in the first and third grounds. In view of this, I will refrain from making any findings on this ground.

[78]	In the third instance, it is argued that the court a quo again relied on an incorrect position of the law, regarding the awarding of damages.

[79]	 In assessing the damages due to the respondent, the trial court found that the respondent had not led any evidence in support of his claim for damages.  This notwithstanding, the trial court then proceeded to award the damages that I have set out in the opening paragraphs of this judgment.  On appeal, the court a quo was called upon to determine whether or not the trial court was correct to award damages after its finding that there was no evidence led in support of the damages allegedly suffered.

[80]	 It would appear that the court a quo and the appellant were talking at cross purposes.  The ground of appeal did not challenge the finding by the trial court that the respondent had not led any evidence to justify the damages that he sought.  The ground of appeal accepted the finding by the trial court in this regard but challenged the approach by the trial court that even in the absence of evidence on the damages suffered, it could still assess damages in the matter.

[81]	 It is in these circumstances that the court a quo then made the statement for which it has been criticised, to the effect that it is not always necessary to lead evidence on the quantum of damages.

[82]	Whilst the crisp position of the law is that evidence in support of damages must always be led, even in claims of general damages, I do not think that, in the circumstances of this matter, the court a quo erred in holding that it is not always necessary to lead evidence on the quantum of the damages claimed. There is a neat distinction between evidence in support of the claim and evidence on the actual quantum, two distinct legal concepts that are neither the same nor interchangeable. In this case, they appear to have been conflated or mistaken one for the other. Clearly, there was evidence in support of the claim for damages, and because the damages were general in nature, no amount of evidence over and above what the respondent adduced would prove the quantum of damages justified in the matter.

[83]	It is therefore my finding that whilst the statement by the court a quo that it is not always necessary to lead evidence on the quantum of damages claimed, may have been too broad and needed to be explained, it is no basis upon which this Court may review the decision a quo.

THE IMPACT OF THE DECISION A QUO.

[84]	As indicated above, the issue that has exercised my mind a great deal is the impact of the decision a quo on the right to a fair trial. The approach taken by the trial court and the remarks that it made in its judgment are cause for concern. It is because of these that counsel for the applicant submitted that the parties were subjected to two trials.

[85]	A reading of the judgment of the trial court upon remittal of the matter for the trial to continue strongly suggests that after its order of absolution from the instance at the close of the respondent’s case was reversed, the trial court patently “surrendered” its decision- making role as the trier of fact to the Supreme Court.  The language employed by the trial court and its undue deference to the remarks by the appeal court denote a court that was clear in its mind that it no longer had much of a role to play in the determination of the matter. To borrow from its own language, it was “game over” as far as establishing the respondent’s case was concerned.

[86]	In its judgment, the trial court repeatedly referred to the prima facie case against the applicant as having been established by the Supreme Court on appeal.  At no stage did it own this prima facie case as its own view and judgment in the matter. It repeatedly distanced itself from the prima facie case.  Whenever it referred to the respondent’s case, it referred to the prima facie case as found by the Supreme Court and never by itself.  Thus, when concluding the trial, the court still distanced itself from the respondent’s case. Again, I quote the trial court:

“I come to the conclusion that the defendant has done nothing to disgorge the prima facie case found to have been established by the plaintiff on appeal.”

[87] 	Due to the attitude and approach that it had taken in the matter, the trial court clearly exhibited restraint in coming up with its own opinion.  Thus, when it was dealing with the admission made by the applicant in his plea that he had made a report to the police and which he sought to correct by viva voce evidence, the trial court made this telling remark:

“In any event, whatever my views may have been on the admission made would have counted for nothing because the Supreme Court has already made conclusive findings on it.”

[88]	Clearly but erroneously believing that its decision-making role in the matter had been supplanted by the appeal court, the trial court also took the approach that some of the issues in the trial had been resolved by the appeal court and no longer constituted live issues for its determination.  Thus, in the part of its judgment where the court stated the issues for determination in the matter, it revealed its attitude in the following remarks:

“I have already outlined the issues that were placed before this court for determination at the trial. The determination of those issues has now been affected by the judgment of the Supreme Court which has made quite pointed findings which are binding on this court by virtue of the doctrine of stare decisis.  This court is therefore restricted by those findings to the extent that most of the issues have now been determined. What remains to be determined now is very narrow indeed.”

[89]	The trial court then made more pointed remarks in this regard on the question whether or not the report by the applicant to the authorities had led to the arrest, prosecution and detention of the respondent.  This is what it had to say:

“The foregoing conclusion by the appeal court settles the issue completely.  The defendant was required to demonstrate, in his evidence in rebuttal, that the prima facie case found by the appeal court could be and was rebutted by his account. In his view, because he did not personally approach the police, this exonerated him from wrongdoing. The defendant is wrong in that regard.  The Supreme Court has said so.”

[90]	And later on in the judgment regarding the question whether or not the prosecution of the respondent had failed, the trial court had this to say:

“In my view, following the pronouncement of the Supreme Court on appeal against the grant of absolution from the instance at the close of the plaintiff’s case, this is no longer a live issue for determination at this trial.  I say so because there was nothing really that the defendant could do in his evidence to respond to the appeal court’s findings that the plaintiff’s prosecution failed.

To that extent, no amount of evidence led by the defendant before this court could upset the definitive finding that the common cause facts established the final requirement for a successful claim for malicious arrest, prosecution, and detention that the prosecution instigated by the defendant failed.  The pronouncement by the Supreme Court that the prosecution failed is binding on this court, it being final and definitive in respect of that issue.  The issue has therefore been resolved.  When the defendant went on and on in his evidence, he was engaged in an exercise in futility, the issue having ceased to be a live one.”

[91]	 I have gone to some length to demonstrate what in my view amounted to abdication or surrender of jurisdiction and independence by the trial court in this matter on the basis of the erroneous belief that the appeal judgment reversing the order of absolution was not only final but was binding on it to the extent that some of the issues had been determined and settled on appeal.

[92]	The trial court was, as a consequence, not fully in charge of the trial.  It felt restrained or disempowered from forming its own opinion and rendering its independent judgment on the matter.  There was a palpable disconnect or distancing between the court and the matter that it was trying.

[93]	During the trial, and consequent upon its erroneous belief that the Supreme Court had taken over part of the trial, the court a quo burdened the applicant with the onerous onus of “disgorging” the findings of the appeal court failing which the case as found by the appeal court would be held as a case against him on a balance of probabilities.  This, to say the least, is a novel burden of proof in civil litigation in this jurisdiction.

[94]	The above is a sample of the manner in which the trial of the matter was conducted after remittal. The decision a quo has validated and upheld these proceedings not only without qualification but as reflecting the correct position of the law.

[95]	I hesitate to endorse this view.  I am not confident that the conduct of the trial of the matter after it was remitted for continuation embodies the vision of a fair trial before an independent and an impartial court that is envisaged and protected in s 69 (2) of the Constitution.  It does not appear to me to have those hallmarks of a fair trial before an independent and impartial court that we are accustomed to.

[96]	In summary, it appears to me that the trial court was conducted in a grossly irregular fashion, thereby robbing it of the fairness that is a prerequisite of a trial under the law. The trial court wrongly and wrongfully surrendered its jurisdiction in the matter to the appeal court, again robbing the trial of the prerequisite that it must be before an independent and impartial judicial officer. These irregularities could, and in my view, should have been reviewed by the court a quo. I venture to say that the irregularities would have been corrected had the correct law been applied.

[97]	In making the above finding, I am keenly aware that the proceedings of the trial court are not before this court. It is the Supreme Court decision that is. I have adverted to the proceedings in the trial court merely to illustrate the myriad of irregularities that the court a quo ought to have corrected but did not. It is my further view that its failure to do so at common law, and using common law principles, may have had some constitutional ramifications.

[98]	As indicated above, the irregularities attendant upon the trial, prima facie affected its fairness, a constitutional imperative.  The voluntary but wrongful surrender of jurisdiction by the trial court in turn prima facie affected its independence and impartiality, another constitutional imperative. Again, this is a finding I make prima facie.

[99]	In the circumstances outlined above, the effect and purpose of the decision a quo stand out clearly as validating the myriad of irregularities that I have detailed above. I deliberately refer to the effect and purpose of the decision a quo because in matters of constitutional validity, the law is settled that it is the effect of the impugned conduct or decision that the court must take into account rather than its purpose. (See In re Mhunhumeso 1994 (1) ZLR 49 (S)); Zimbabwe Township Developers (Pvt) Ltd v Lous’ Shoes (Pvt) Ltd 1983 (2) ZLR 376 (SC) and Democratic Assembly for Restoration and Empowerment & Ors v Suanyama N.O & Ors 2018 (2) ZLR 603 (CC)).

[100]	In casu, the purpose and effect of the decision of the court a quo coincide. Its effect is to validate and give a stamp of judicial approval to the proceedings of the trial court.

[101]		It is very well possible that I am wrong in my characterisation of the trial after its order of absolution was reversed. I could be wrong in the import that I attach to the irregularities that were attendant upon the trial court. Put differently, I could also be wrong in my  prima facie assessment of the impact of these irregularities on a fair trial as envisioned by the Constitution.  I, however, cannot find a weighty principle that can make this court turn a blind eye to the proceedings of the trial court. It is because of these doubts and concerns that I am inclined to grant leave for the applicant to access the quorate court for a full debate and mature consideration of these issues. My views, being merely           prima facie, have no effect on the quorate court.

[102]	In disposing of the application in this fashion, I am aware that the applicant intends to allege that the decision a quo infringed upon his right to the equal protection and benefit of the law.  As correctly observed by counsel for the respondent, this court has construed this right narrowly and the applicant has no prospects of success on this score.  In a long line of cases, this court has entrenched the view that s 56 (1) is an equality provision and not a due process protection provision as was s 18 of the repealed Constitution.

CONCLUSION.

[103] 	In view of the position I take in this matter, it is unnecessary for me to determine whether or not the draft order sought by the applicant in the intended application is competent.  This is so because the power to determine the validity of the application, including the accompanying draft order, properly vests in the court that will determine the application, which, in its discretion, may grant amendments to the application and to the draft order as it sees fit.  (See Zimbabwe Consolidated Diamond Company (Private) Limited v Adelcraft Investments (Private) Limited CCZ15-24).

[104]	 In the result, I make the following order:

The application is granted with no order as to costs.

The applicant is to file the substantive application, in accordance with the rules of this Court, within 10 days of the date of this order:

Garwe JCC

[105]	I have read the above judgment in draft by my sister Makarau JCC and in essence agree that, on the facts as outlined, the trial court appears to have adopted the attitude that the remarks made by the Supreme Court in reversing the order of absolution from the instance were sacrosanct and therefore binding on it.  I am further inclined to accept that the trial court “felt restrained or disempowered from forming its own opinion and rendering its independent judgment in the matter.”  Indeed, the various remarks made by the trial court cited by Makarau JCC tend to give credence to the suggestion that the trial court felt its role in the proceedings that were to continue before it had been attenuated as a consequence of the findings made prima facie by the Supreme Court in setting aside the order of absolution from the instance.

[106]	It is the conclusion by Makarau JCC that the surrender of jurisdiction by the trial court was wrong and that such conduct robbed it of the independence and impartiality expected of a court in terms of the law and more specifically the Constitution itself and that this ultimately affected the fairness of the proceedings.  Those shortcomings, so she opines, should have been reviewed by the Supreme Court and possibly corrected had the latter Court applied the correct law.  In failing to do so, it is suggested that the Supreme Court gave a stamp of validity to the proceedings that had irregularly taken place before the trial court, proceedings that did not embody the vision of a fair trial.

[107]	In coming to the conclusion that this was a proper case for the grant of leave of direct access, Makarau JCC stated as the correct test that a decision of the Supreme Court on non-constitutional matters is reviewable if its impact is inconsistent with any provision of the Constitution and the impact of the decision is to infringe upon any of the fundamental rights and freedoms enshrined in Chapter 4 of the Constitution.  It is on the basis of this formulation that she has concluded that the effect of the Supreme Court decision was to validate the proceedings before the trial court that were marred by a number of irregularities that impacted the right to a fair trial.

[108]	Makarau JCC correctly observes that the locus classicus on when a final decision of the Supreme Court can be impugned under s 85 (1) of the Constitution is the decision of this Court in Lytton Investments (Private) Limited v Standard Chartered Bank Zimbabwe Limited 2018 (2) ZLR 743 (CC).  Indeed, the decision has been cited in various decisions of this Court as laying the benchmark for access to this Court in cases where decisions of the Supreme Court are sought to be impugned.

[109]	The difficulty with the test in Lytton, however, is that, whilst it is easy to restate, it has proved to be elusive and difficult to articulate. It is not cast in unambiguous terms, the result being that different decisions of this Court have not been consistent in the formulation of a clear test applicable where a decision of the Supreme Court is sought to be impugned under s 85 (1) of the Constitution.  Indeed, Makarau JCC accepts that there is a lack of clarity in this regard and that it may become necessary in the future to enunciate the test in Lytton with greater precision.  I hesitate to accept this latter view.  As long as the test in Lytton is understood, expressed and applied differently by different panels of this Court, the need for a clear enunciation by the full bench of this Court on what the test encapsulates becomes the more urgent.  Unless this is done, the result may be that some litigants may be prejudiced, perhaps even non-suited, by the different approaches taken.

[110]	Lytton, supra, makes a number of remarks, which, as just noted, do not lend themselves to a clear exposition of the applicable test in the circumstances under consideration.  The decision in Lytton suggests that the test is whether the Supreme Court “failed to act in terms of the objective standards prescribed by the procedural and substantive laws governing the proceedings before the Court.”  It further states that the decision of the Supreme Court can be challenged on the ground that:

“It has infringed a fundamental right or freedom enshrined in [Chapter 4] of the Constitution.  ….and that any decision which has the effect of infringing a fundamental right for freedom ….would be inconsistent with the Constitution and therefore invalid ….”

The decision then proceeds to state the oft-quoted statement that the facts must show that the Supreme Court:

“…failed to act in accordance with the requirements of the law governing the proceedings or prescribing the rights and obligations subject to determination.  The failure to act lawfully would have to be shown to have disabled the court from making a decision on the non-constitutional issue.”

The theory of constitutional review of a decision of the Supreme Court in a case involving a non-constitutional matter was said:

“….to be based on the principle of loss of rights in such proceedings because of the Court’s failure to act in terms of the law, thereby producing an irrational decision ….”

[111]	Lytton accepts that a decision of the Supreme Court is correct because it is final and that:

“There cannot be a wrong decision of the Supreme Court on a non-constitutional matter.  A decision declared by the Constitution to be final and binding cannot at the same time be open to challenge on the ground that it violates the fundamental right to the equal protection of the law.”

and further that:

“Once a decision is as a matter of fact a decision of the Supreme Court on a non-constitutional matter, no inquiry into its legal effect can arise ….”

[112]	The decision then proceeds to quote with approval the decision of the Constitutional Court of South Africa in Lane & Fey NNO v Dabelstein & Ors 2001 (2) SA 1187, (CC) 4 that:

“…. even if the Supreme Court of Appeal erred in its assessment of the facts, that would not constitute a denial of the [right to a fair trial and fair justice].  The Constitution does not and could hardly ensure that litigants are protected against wrong decisions.  On the assumption that s 34 of the Constitution does indeed enable that right, it would be the fairness and not correctness of the court proceedings to which litigants would be entitled ….”

[113]	 After Lytton, a number of other decisions followed. In Mukondo v The State CCZ 8-20, this Court, at p 7 of the judgment, also accepted as correct remarks by the Constitutional Court of South Africa in General Council for the Bar of South Africa v Jiba & Ors [2019] ZACC 23, at para 49, that:

“The apparent incorrect determination of facts by the majority in the Supreme Court of Appeal and the erroneous application of the three-stage test to those facts also do not raise a constitutional issue … because the standard is well established and the determination of facts, whether right or wrong, does not amount to a constitutional issue.

[114]	In Chiwaridzo v T.M. Supermarkets Private Limited & 4 Ors CCZ 19-20, the Court accepted, at p 10 of the judgment, that:

“The misinterpretation of the law by a Court or litigant does not give rise to a constitutional issue justifying direct access to the court…”

Attention should also be drawn to further remarks by this Court in Denhere v Denhere & Anor 2019 (1) ZLR 554 (CC) at pp 566 - 569.

[115]	It is against this backdrop that, in various applications for direct access seeking to impugn a decision of the Supreme Court, differently constituted panels of this Court have struggled to state the test applicable in this instance in a clear, concise and simple way.  To illustrate the conundrum, I relate to a few of those decisions.

[116]	In Machine v The Sheriff of Zimbabwe & 3 Ors CCZ 08-23, at pp 7-8, it was stated that an applicant must show:

“In the first instance, that the Supreme Court was disabled from rendering a decision on the matter that was before it.  In the second instance, he or she must allege and demonstrate that the judgment infringes one or more of his or her fundamental rights and freedoms …………………………………………………

The authorities hold that the decision of the Supreme Court must be arbitrary or irrational so as to threaten the claim of the court to judicial authority ……..”

Inevitably, the terms “disabled”, “arbitrary” and “irrational” are not further elaborated in the judgment.

[117]	In Zimbabwe Consolidated Diamond Company (Pvt) Ltd v Adelcraft Investments (Pvt) Ltd CCZ 2-24, this Court remarked at pp 20 – 21 that:

“…. Having regard to the agreement between the parties and their conduct thereto,…. there was no evidence before the Court a quo showing any unequivocal intention on the part of the applicant to compromise or abandon its appeal in the proceedings pending before that Court.  That being the case, the judgment of the Court was undoubtedly flawed in its assessment of the evidence before it and the conclusion to be drawn thereon.  It was therefore not a judgment in accordance with the law and it resulted in the Court declining to deal with the substantive merits of the appeal before it.  Arguably this amounted to an abdication of its responsibility to hear the matter and render a judicial determination in the dispute between the parties.  It also evinced a failure to carry out the court’s function to hear and determinate the appeal within the realm of recognised legal principles ……………….

The stark evidential deficiencies in the judgment a quo, coupled with the grave misapplication of the principles of peremption, followed by the failure to adjudicate the substantive dispute between the parties, bear the classic hallmarks of an irrational or arbitrary decision …… the cumulative effect ….is to deprive the applicant of its fundamental rights to a fair trial hearing and right of access to the courts …….”

My interpretation of the above remarks may be incorrect, but it seems to me that the earlier remarks by the Court in other decisions that the incorrect assessment of facts or misapplication of a legal test or the law do not give rise to a constitutional issue appear to have been overlooked.

[118]	In Ariston Management Services Limited v (1) Econet Wireless Zimbabwe Limited & Anor CCZ 8-24, it was suggested that an applicant must show that the Supreme Court “failed to act in accordance with the law governing the proceedings to the extent that it was disabled from rendering a decision on the non-constitutional matter that it was required to decide” and in addition “that in failing to act in accordance with the law governing the proceedings before it, the Supreme Court breached one or more of the applicant’s fundamental rights.” The Court found that the Supreme Court had disabled itself from determining the non-constitutional appeal that was before it and that such failure had resulted in the denial of the right to be heard.  Consequently, the application for leave of direct access was found to be meritorious.  Notwithstanding this conclusion, this Court, in the exercise of its review powers, set aside para 1 of the order and instead directed the Supreme Court to set down the appeal for determination.

[119]	In Unifreight Africa Limited (formerly Pioneer Corporation Africa Limited) v Emily Mashinya CCZ 13-24, the test was stated to be whether “ the subordinate Court has failed to act in accordance with the applicable substantive and or procedural law and thereby rendered an arbitrary or irrational decision entailing the violation of a fundamental right.”

[120]	About a month later, in Fairclot Investments (Private) Limited J (1) Augur Investments OA & 3 Ors CCZ 16-24, a different approach was taken by another panel of this Court.  The court expressed the view that it was:

“… the propriety of the process leading to the decision rather than the correctness of the decision itself which would entitle a litigant to approach this Court in terms of s 85 (1) (a) of the Constitution.  …..substantive or procedural incorrectness of final judgments by the Supreme Court is not what the test envisions.  There ought to have been some other conduct on the part of the court that would have resulted in the violation of a litigant’s fundamental rights …….. In other words that conduct must have tainted the ultimate decision of the Court.”

It is clear that in that decision the Court was emphasising the principle that the violation of fair trial rights by the Supreme Court may well justify the grant of access to this Court under s 85 (1) (a) of the Constitution to impugn the ultimate decision of the Court.

[121] 	There was a further formulation of the test in another decision of this Court in Chipunza v Hammer & Tongues Auctioneers (Private) Limited CCZ 18-24.  It was stated in that case that a litigant would have the right to apply for constitutional review of the conduct of the Supreme Court where:

“a failure by the Supreme Court to uphold the rights and freedoms that it is mandated to protect and give effect may give rise to allegations of violations of these rights by persons affected by its actions or omissions.”

The Court further remarked that it must be shown that the Supreme Court:

“Was guilty of an aberration or permissive conduct in the performance of its functions as a court of law.  The facts must show that it acted in an injudicious manner that had the effect of depriving the litigant of the protection accorded by the Constitution.  The conduct complained of must not relate to the merits of the dispute but to some other factor which ultimately impacted on the decision of the court and resulted in a violation of the fundamental rights of a litigant.”

[122]	There can be no doubt from the foregoing that the test that an applicant needs to satisfy in order to access this Court directly in cases impugning a decision of the Supreme Court requires further careful reconsideration.  The test must be one that is clearly stated so that a litigant is able to appreciate the onus he or she needs to discharge in order to gain such access to this Court.  The current lack of clarity is far from satisfactory and may potentially prejudice some litigants.

[123]	That there was some aberration on the part of the Supreme Court in the matter under consideration, there can be no doubt.  But was such aberration of such a nature as to violate fair trial rights, or was it, as remarked in various judgments of this Court, a mere misapplication of a legal test or the law?  And what exactly is meant by the phrase “failing to act in accordance with the law governing the proceedings to the extent that it was disabled from rendering a decision on the non-constitutional matter that it was required to decide?”

[124]	Given the foregoing, I would agree that direct access should be granted to the applicant so that this Court can articulate a clear statement of the test applicable in these circumstances.  There is an urgent need for such certainty in the law and the administration of justice – see Kruger v President of the Republic of South Africa & Ors 2009 (1) SA. 417 (CC), 428 H-I, 429 A-B.   Such a need can no longer be postponed indefinitely.  Nor can this Court afford to continue, as some might say in popular parlance, kicking the can down the road.

[125]	As already noted, there was some degree of abdication on the part of the trial Court once the matter was remitted for continuation. The Supreme Court did not raise any eyebrows in this regard. Perhaps it should have done so.  Whether such aberration justifies direct access to this Court and, if so, the legal test the applicant must satisfy in order to be granted such access are issues crying out for resolution.

[126]	I would accordingly grant an order for direct access on the basis stipulated by Makarau JCC in paragraph 104, supra.

Gowora JCC:

[127]	I have read the respective judgments of my sister Judge Makarau JCC, and brother, Garwe JCC. I am in respectful agreement with both judgments. I agree that leave to approach the Court directly must be granted to the applicant.

[128]	My learned sister and brother have meticulously set out the law applicable to applications for leave for directly access the Court in order to challenge a judgment of the Supreme Court premised on allegations of violation of enshrined rights stemming from the judgment itself or the conduct of the court in the appeal.  As a result, it is not intended to traverse the same ground.

[129]	The Supreme Court is mandated by law to determine the appeal before it on its merits. I agree with the sentiments expressed by my fellow colleagues that there may have been an abdication of its duty and obligation by endorsing the view of the trial court as to the effect of findings made by the Supreme Court in determining an appeal against a finding of absolution from the instance resulting in a remittal of the matter to the High Court for continuation of the trial on the merits.

[130]	Whether the perceived abdication would constitute a conclusion by the Court that by such conduct the Supreme Court is guilty of a violation of an enshrined right is the question that is staring this Court in the face.

[131]	I agree with the conclusion reached by my learned colleagues that there needs to be clarity in the law as to when a judgment of the Supreme Court may be set aside on the premise that it, the judgment, is an aberration justifying a finding that it has resulted in the violation of enshrined rights. As stated by GARWE JCC, it is important that the legal test applicable be resolved. This will ensure that the Court applies the same standards to all litigants approaching it for relief.

[132]	In the result, I would concur with the grant of an order for direct access as set out in para [104] above.

Garwe JCC		:		I Agree

Gowora JCC		:		I Agree

Atherstone and Cook, applicant’s legal practitioners.

Hove and Associates, respondent’s legal practitioners.