Ritamarque Mbatha v Vincent Ncube & Anor (Messenger of Court)

### Preamble
Judgment No. CCZ
1
7/23CaseNoCCZ19/
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REPORTABLE(7)

(1)RITAMARQUE MBATHA

v

(1)VINCENTNCUBE(2)MESSENGER OFCOURT

CONSTITUTIONAL COURT OF ZIMBABWEPATELJCC

HARARE:30 MAY 2023 & 26 JUNE2023

Theapplicant inperson

A.Sunday, forthefirstrespondent

Noappearanceforthesecondrespondent

INCHAMBERS

PATELJCC:	Thisisachamberapplicationforcondonationandextensionoftimewithinwhichtofileanapplication fordirect accessduetonon–compliancewithr9(7)oftheRulesofthisCourt.Theinstantapplicationwasmadeintermsofr35oftheConstitutionalCourt Rules,2016.

TheBackground

The applicant in this matter is a self-actress seeking the indulgence of this Court to begranted condonation for non-compliance with the Rules. On 29 March 2023, her applicationfor direct access to this Court under Case No. CCZ 55/22 was struck off the roll due to herfailure to effect proper service on the first respondent. The application was one of many suitsbetween the applicant and the firstrespondent who have beendeadlocked inprotractedlitigationsince2016when thelatter sought toevict theformer from hisproperty.

The dispute between the parties appeared to have reached finality when the SupremeCourt, in Case No.SC 443/21, dismissed the applicant’s appeal in which she had challengedthe court a quo’s dismissal of her urgent chamber application for an interdict meant to bar thefirst respondent from effecting eviction in terms of the ejectment order granted in his favourunder Case No. MC 39520/16. However, the applicant was dissatisfied with the verdictrendered by the Supreme Court, taking particular issue with the utilisation of r 53(3) of theSupremeCourtRules,2018. Itwas onthebasisof theaforementionedrulethatthematterwasdetermined on the merits, having regard to the papers filed of record following the applicant’sdefaultof appearancebeforethe Supreme Court.

The dismissalof the appealculminatedinthe applicantfiling anapplicationforrescissionwhichwassubsequentlydismissedbytheSupremeCourt. Aggrievedbythisturnofevents, the applicant sought to challenge the final verdict of the Supreme Court before thisforum arguing that her fundamental right to a fair trial had been unduly violated. However, itwas due to the earlier-mentioned defective manner of service that the applicant found herselfseekingthis Court’sindulgenceto fileaproperapplication for directaccess.

In her founding affidavit, the applicant proceeded to narrate the background of herprospectiveapplicationbeforethisCourt.Shemadeunsubstantiatedallegationsofprofessionalimpropriety against the Registrar of this Court which suggested that there was collusion withthefirstrespondent.Therewasnoexplanationtenderedforhernon–compliancewiththeRulesofthis Courtsavetoinsist uponvindicatingherallegedlyimpugned constitutionalrights.

Accordingtotheapplicant,themainapplicationenjoysprospectsofsuccessasshewasdiscriminated against by the Supreme Court in Case No. SC 443/21. She also made the baldaverment that the first respondent also wanted the matter to be determined to finality by thisCourt. The applicant advanced the argument that it was important for this Court to make arulingonwhethertheSupremeCourt’sdecisiontoproceedwiththematterunderCaseNo.SC443/21 in her absence was fair and just. It was the applicant’s case that the Supreme Courtfurthered her injustice by dismissing her application for rescission in Case No. SC 237/22,especially since the matter was determined by the same bench which had presided over herappealin CaseNo.SC 443/21.

Thegrantofcondonationwasopposedbythefirstrespondent.Itwassubmittedthattheapplicant’s conduct was driven by a desire to remain on his property despite a valid ejectmentorder from the Magistrates Court under Case No. MC 39520/16. The first respondent allegedthattheapplicantwascreatingatrailofpurportedlypendinglitigationtofrustratehereviction.He reasoned that the Supreme Court was well within its power to utilise r 53(3) in the appealproceedingsunderCaseNo.SC443/21.Thus,itwasarguedthatthepresentproceedingswerenowamereabuseof court process.

In response, the applicant submitted that the first respondent was intent on preventingthefinalisationofthedispute.Sheproceededtojustifyherinterestsin severalmatterspendingbefore this Court and other judicial fora.The rest of her answering affidavit was dedicated toobjectionablematerialsavefortheinsistencethatherfundamentalrighttoafairtrialhadbeenviolatedbytheconduct of theSupreme Court in theproceedings underCaseNo. SC 443/21.

SubmissionsbeforethisCourt

Atthehearingofthematter,itcametotheCourt’sattentionthattheapplicanthadnowbeen evicted by the first respondent in terms of the eviction order under Case No. MC39520/16. The applicant confirmed that she was evicted on 23 May 2023. She added that shehad since filed a spoliation application in the High Court, which matter was still pendingdetermination. It became apparent that the instant application had since been overtaken byeventsandwasnowacademic.Thispointwasappreciatedbybothpartiesbuttheapplicantwasresolutein proceedingwith thematterdespiteitsnominal bearingonher present predicament.

Theapplicanthadnoreasonableexplanationforherfailuretoservethefirstrespondentas per r 9(7) of the Constitutional Court Rules, 2016. She persisted with the argument that shehad effected service personally on the first respondent. When directed to the content of r 9(7),no credible or reasonable explanation was proffered as to why service had not been effectedthrough the Sheriff as stipulated by the Rules. She submitted that her intended application fordirectaccesswasintheinterestsofjusticesincetheSupremeCourthadviolatedherfundamental rights by proceeding with the appeal under Case No. SC 443/21 in her absence.The applicant suggested that there was evidence in her favour that she could have provided atthehearingbeforetheSupremeCourt.Inaddition,shealsoimpugnedtheconductofthebenchin Case No. SC 237/22 for refusing to recuse themselves from determining her application forrescission.

Per contra Ms Sunday, on behalf of the first respondent, submitted that the matter wasnow merely academic following the applicant’s eviction from the property. As such, noconsequential relief from this Court would restore her occupation since eviction was made interms of a valid order under Case No. MC 39520/16. Ms Sunday reiterated that the presentproceedingswerenowanabuseofcourtprocessbytheapplicant.Tothatend,shesoughtcosts

onahigherscaleasthefirstrespondentwasbeingconstantlydraggedtocourtwithoutanyjustcause.Theapplicantdisputedtheclaimforcostsassheinsistedthatshewasmerelyvindicatingherconstitutional rights.

TheReliefSought

ThereliefsoughtbeforethisCourtwasforanorderframedasfollows:

“1.Applicationforcondonationofnon-compliancewithrule9(7)oftheConstitutionalCourtRules beand is herebygranted.

Applicationforextensionoftimewithinwhichtofileandserveanapplicationintermsof the rules be andis herebygranted.

Thereshall benoorder as tocosts if thematteris notopposed.”

TheGoverningPrinciples

The parties have helpfully referred the Court to some of the relevant principles in anapplication of this nature. Some of these principles will inform Court’s determination and arelistedas follows:

thedegreeofnon-compliance;

theexplanationforthenon-compliance;

theimportanceof thecase;

theprospectsofsuccess;

theinterestsofjustice;

theinterests offinalityin thecase; and

theavoidanceof unnecessarydelayin theadministration ofjustice.

See Mhora v Mhora CCZ 5/22, K.M Auctions (Pvt) Ltd v Samuel & Anor SC 15/12 at p. 3,Kodzwa v Secretary for Health & Anor 1999 (1) ZLR 313 (S) at 315 B-E, Terera v Lock &OthersSC 93/21 and Maheyav Independent AfricanChurch2007(2)ZLR319(S).

TheDegreeof andExplanationfortheNon–Compliance

Thewarninghaslong oftenbeensoundedtolitigantsthatpetitionthecourtsregardingnon-compliancewiththerules.InthecaseofMuseredzaandOrsvMinisterofAgriculture,

Lands,WaterandRuralResettlementandOrsCCZ11/21,thefollowingwasreiteratedbyMAKARAUJCC:

“It is a rule of common law and an entrenched part of our practice and procedure thatmattersaretobebroughtbeforethecourtinaccordancewiththerulesofthatcourt.TheremarksofPATELJCCinMarxMupunguvTheMinisterofAgriculture,Lands,Waterand Rural Resettlement and Others CCZ 7/21 are apt. He wrote: ‘One cannot institutean action or application in the High Court, or any other court, without due observanceof and compliance with the Rules of that court. The Rules inform a litigant of what isrequired of him to access the court concerned. If he fails to observe or comply withthoseRules, hewill inevitablybenon-suited’.”

Flowingfromtheaboveisthenecessaryimplicationthatwherelitigantsfallfouloftheapplicable rules, a sufficient explanation must be tendered in order to be granted the Court’sindulgence. However, in the present case, the applicant’s founding affidavit is bereft of anyreasonableexplanation.Saveforaheadingtitled“Extentofthedelayandreasonablenessofthe explanation”, the applicant made no attempt to bring the Court into her confidenceregardingthecircumstancesthatledtohernon-compliance.ThisdeficitwasfurthercompoundedduringsubmissionsbeforethisCourtwheretheapplicanttenderednoreasonableexplanation for her non–compliance, except to insist that she had effected service personallyuponthe first respondent.

Generally, a measure of tolerance is afforded to self-actors. Reference is made to thecase of Sibangani v Bindura University of Science and Education CCZ 7/22 at page 13, para.32,wherein GOWORA JCCposited thefollowing:

“There is an unwritten rule of practice that, wherever possible and where justicedemands, courts should ensure that unrepresented litigants be accorded a measure oftolerance whereit concerns procedural issues.”

However,inthisinstance,wheretheapplicantisseekingtheindulgenceoftheCourt,afailuretosatisfytheforemostrequirementforcondonationcannotpassunheeded.Theapplicantdoesnotacceptanyaccountabilityforhowandwhyhermatterwasstruckoffthe

roll.Shealternatedbetweensimplylayingblameuponthefirstrespondentand/ortheRegistrar.As such, she has failed to provide an adequate explanation for her non-compliance in additiontocompletelydisregardingthe need to plead thedegreeof non-complianceadequately.

TheProspectsofSuccessintheMainMatter

The applicant averred that she was treated in a discriminatory manner by the SupremeCourt in Case No. SC 443/21. She alleged that the presiding bench in her matter subjected herto treatment distinct from that afforded to other litigants appearing before the Supreme Court.This violated her right to a fair trial in terms of s 69 in addition to the non–discriminatoryprovisions ofs 56(1)of theConstitution.

However,theattacheddraftsubstantiveapplicationrevealsthelackofanymeritintheapplicant’s case.There is no indication as to how the applicant was unfairly discriminatedagainst by the Supreme Court through the utilisation of r 53(3) of the Supreme Court Rules,2018.Therulegrants theSupreme Courtthe authorityto proceedas follows:

“53.Dismissal of appealin theabsenceof headsof argumentorappearance

Where,atthetimeofthehearingofanappeal,thereisnoappearancefortheappellantornoheadsofargumenthavebeenfiledbyhim,thecourtmay,atits

discretion,determineordismisstheappealandmakesuchorderastocostsasitmay

think fit.

Theregistrarshallnotifyaregistrarofthecourtwhosejudgmentisappealedagainstof thedismissal of anyappeal underthisrule.”(myemphasis)

Patently,therewasnoinfractionassuggestedbytheapplicant.TheSupremeCourtwaswellwithinitspurviewtodeterminethemeritsoftheappealinherabsence.Inhersubmissions,theapplicantalsofailedtohighlighthowthisauthoritywasabusedorutilisedinadiscriminatory manner. Once discrimination was alleged it ought to have been specificallypleaded, which the applicant’s founding papers dismally failed to do. This position has beenfirmlyestablishedinourjurisprudenceandthefailuretocomplywithitstandstothedetrimentof the applicant’scase.SeeNkomovMinisterofLocalGovernment,RuralandUrbanDevelopment&Ors2016(1)ZLR113(CC)at118-119;MupunguvMinisterofJustice,LegalandParliamentary Affairsand Others CCZ7/21.

The InterestsofJustice

In this matter, the decisive factor is whether or not the interests of justice favour thegrantofcondonationsoughtbytheapplicant.Thepartieshavebeenengagedinaninterminablelegalwranglewhichshowsnosignsofabatingwhentakingintoaccountthependingspoliationproceedingsin theHighCourt.

Theapplicant’sevictionfromthefirstrespondent’spropertybeforethesetdownofthishearing has a direct bearing on thepresent proceedings. The matter has now become aclassicallyacademicdisputewithnopracticalimpactoreffectflowingfromanyorderthatmaybe handed down by this Court in favour of the applicant’s instant or prospective applications,viz. for direct access and for substantive relief in the main matter. Her lawful eviction grantedintermsoftheorderunderCaseNo.MC39520/16meansthatanydeclaratoryandotherreliefgranted by this Court upsetting the judgments of the Supreme Court become abstract andmeaningless–nothingmorethanbrutafulmina–byreasonofthehardfactthatsheisnolongerinoccupation ofthefirstrespondent’sproperty.

Furthermore, the applicant’s insistence that this is an important matter that ought toproceed nonetheless before this forum is undermined by the pending proceedings in the HighCourt.Aswasputtotheapplicantatthehearing,thefittingcourseofactionwouldbetopursuethe pending litigation for restoration of possession in that court. It would clearly not be in theinterestsofjusticetogranttheapplicantcondonationbeforethisCourtinanentirelyacademicdispute.

The sole reason for entertaining the applicant’s case thus far is to ensure finality to thepresent and intended proceedings before this Court. In declining the instant application forcondonation, I am fortified by the case of Khupe & Anor v Parliament of Zimbabwe & OrsCCZ20/19, wherein MALABACJemphasisedthefollowingregardingmootness:

“The question of mootness is an important issue that the Court must take into accountwhenfacedwithadisputebetweenparties.ItisincumbentupontheCourttodeterminewhetheranapplicationbeforeitstillpresents alivedisputeasbetweenthe parties.Thequestionofmootnessofadisputehasfeaturedrepeatedlyinthisandotherjurisdictions.The position of the law is that a court hearing a matter will not readily accept aninvitation to adjudicate on issues which are of ‘such a nature that the decision soughtwillhaveno practical effect or result’.”

SeealsoMovement forDemocraticChange&OrsvMashavira&OrsSC56/20.

Costs and Disposition

Both parties sought an order for costs against each other despite the general refrainagainst such an order in constitutional matters. Ms Sunday submitted that the applicant was inabuse of court process through multiple baseless actions in which she has sued the firstrespondentinthecourts.However,Iamdisinclinedtoawardcostsnotwithstandingthenotableabuse of court process by the applicant. This is largely based on her status as a self–actress inthis matter.

In the result, it is ordered that the application be and is hereby dismissed with no orderas tocosts.

LegalAidDirectorate,firstrespondent’slegalpractitioners