Judgment record
Zimbabwe Consolidated Diamond Company (Private) Limited v Adlecraft Investments (Private) Limited
Judgment No. CCZ 15/24CCZ 15/242024
Viewing: Word Document
Loading document...
Full text archive
Judgment text copy
A clean reading copy is shown below. Use Download for the original formatted document.
Judgment No. CCZ 15/24
Constitutional Application No. CCZ 6/24 1
REPORTABLE (15)
ZIMBABWE CONSOLIDATED DIAMOND COMPANY (PRIVATE)
LIMITED
v
ADLECRAFT INVESTMENTS (PRIVATE) LIMITED
CONSTITUTIONAL COURT OF ZIMBABWE
MAKARAU JCC, GOWORA JCC & HLATSHWAYO JCC
HARARE: MAY 7, 2024 & OCTOBER 16, 2024
T Magwaliba for the applicant
E Mubaiwa for the respondent
GOWORA JCC:
[1] On 17 January 2024, this Court, pursuant to an application filed to it under s 167(5) as
read with r 21(3) of the rules of the Court, granted the applicant leave to approach it
directly for the vindication of an alleged violation of its rights under s 69(2) and s 69(3)
of the Constitution.
[2] The order in terms of which leave was granted reads as follows:
1. Leave be and is hereby granted for the applicant to institute an application in terms of
s 85(1)(a) of the Constitution for an order declaring that the judgment of the Supreme
Court in Case No SC 201/23 violates the rights of the applicant as set out in s 69(2) and
s 69(3) of the Constitution.
2. The aforesaid application shall be filed within ten (10) days of the date of this order and
shall be substantially in accordance with the draft application attached to the founding
affidavit in this matter.
3. There shall be no order as to costs.
Judgment No. CCZ 15/24
Constitutional Application No. CCZ 6/24 2
[3] The applicant duly complied with the order set out above and, on 25 January 2024, filed
an application under CCZ 3/24 that it says was exactly the same as the draft application in
terms of which it obtained leave on 17 January 2024. The applicant now avers that the
application it filed was not in accordance with the requirements of r 22(2) (b) to (d) in
that it does not set out the specific requirements which the rule requires to obtain in the
form.
[4] The applicant has now approached the Court with an application for condonation of the
departure from the Rules in terms of rule 5(1) (a) of the Constitutional Court Rules, 2016
(“the Rules”). In addition, the applicant seeks authorization of the issuance of a certificate
of service in respect of the service of the application under CCZ 3/24 upon the Attorney
General, that the Registrar rejected.
FACTUAL BACKGROUND
[5] The applicant and the respondent are limited liability companies duly registered as such
under the laws of Zimbabwe. The applicant is wholly owned by the government of
Zimbabwe. The parties are involved in a dispute which culminated in the respondent
initiating legal action against the applicant on February 2, 2023, in the High Court, under
case number HC 723/23, wherein the former sought an order for the applicant to pay to it
an amount of USD 13,824,163.22, allegedly accrued by the applicant between 2016 and
2018. The High Court found for the respondent and ordered the applicant to pay the sum
Judgment No. CCZ 15/24
Constitutional Application No. CCZ 6/24 3
of USD 10,718,373.51 plus interest and costs of suit on a legal practitioner and client
scale.
[6] Dissatisfied with the decision of the High Court, the applicant, under case number SC
201/23, appealed to the Supreme Court (“the court a quo”) on 4 April 2023. Subsequent
to this, the parties took individual steps to protect their respective positions, which steps
are neither pertinent nor germane for the determination of this application. These
culminated in the applicant paying USD 679,103.93 and USD1 500, 000.00 to the
respondent.
[7] Premised on the payments referred to above, the respondent filed a preliminary objection
under rule 51 of the Supreme Court Rules, 2018 (“the Supreme Court Rules”) on the
premise that the applicant had perempted its right of appeal. At the hearing of the appeal,
the court a quo upheld the preliminary objection and dismissed the appeal with costs.
THE APPLICATION FOR DIRECT ACCESS
[8] Aggrieved by the dismissal of its appeal, the applicant applied for direct access to this
Court under CCZ 30/23. In that application, the applicant alleged that its rights to equal
protection and benefit of the law under s 56(1) and the right to a fair hearing and access
to the courts under ss 69(2) and (3) of the Constitution, had been violated by the court
a quo’s disposal of the appeal before it on the basis that the applicant had perempted its
right to appeal by making part payments to the respondent.
Judgment No. CCZ 15/24
Constitutional Application No. CCZ 6/24 4
[9] The application was opposed by the respondent which submitted that the court a quo
dealt with a non-constitutional matter and that the jurisdiction of this Court was,
therefore, not engaged. This Court, under judgment number CCZ 2-24, held that there
was no evidence before the court a quo showing, unquestionably, an unequivocal
intention on the part of the applicant to perempt or abandon its appeal in SC 201/23. As a
result, the application for direct access to this Court was granted on 17 January 2024.
[10] The applicant proceeded to file its application in terms of s 85(1) of the Constitution
under CCZ 3/24. However, as conceded by the applicant, the said application does not
comply with rule 22(2) (b) - (d) of the Constitutional Court Rules, 2016 (“the Rules”), in
that it does not state the grounds on which it was made. In addition, the applicant served
the application on the Attorney-General at least eight days from the date of filing,
prompting the Registrar of this Court to refuse to accept the proof of service filed by the
applicant. As a result, the applicant has brought the present application to have the proof
of service accepted as valid.
THE PRESENT APPLICATION
[11] In its founding affidavit, the applicant contended that under judgment number CCZ 2-24,
the Court had not taken issue with the form CCZ 1 or its contents in the draft application
attached to the substantive application for direct access. Premised on this, the applicant
submitted that the application it had filed under CCZ 3/24 was in accordance with the
draft that the Court had considered. As a result, the applicant is of the view that there is
Judgment No. CCZ 15/24
Constitutional Application No. CCZ 6/24 5
no need to revisit the form of the application, other than to make appropriate changes
removing the second basis of the application which the Court had dismissed.
[12] The applicant further averred that despite the shortcomings in the form CCZ 1 forming
part of the application for direct access, neither the Court nor the respondent faced any
difficulties in appreciating the nature of the constitutional violation it alleged or the basis
upon which its relief was being sought, or the nature of such relief. It asserted that no
prejudice would ensue upon the respondent if condonation is granted for the failure to
comply with r 22(2)(b) to (d) in view of the fact that all those requirements were clearly
set out in the founding affidavit.
[13] The applicant thus sought the indulgence of this Court to condone the departure from the
Rules and authorise that an amended form CCZ 1 be attached to the application under
CCZ 3/24 thus enabling the Court to determine and dispose of the substantive application
on its merits. The applicant besought the Court to have regard to s 85(3) of the
Constitution and suggested that the Court ought not to be unreasonably restricted by
procedural technicalities in determining proceedings before it.
[14] Further to this, the applicant contended that even though it served the application under
CCZ 3/24 upon the Attorney-General eight days after it was filed, the Rules of this Court
do not prescribe when such service should be effected. As a consequence, the applicant
contended that the Registrar was wrong in refusing to accept the certificate of service
when the certificate had been submitted within two days of service as stipulated by the
Judgment No. CCZ 15/24
Constitutional Application No. CCZ 6/24 6
Rules. It, therefore, prayed that the Registrar be directed to accept the certificate of
service in terms of r 5(1)(a), and in the alternative, that the Court condone the alleged
failure to comply with the rules in terms of r 5(1)(b) which rule deals with situations not
expressly provided for by the Rules.
[15] Additionally, the applicant further contended that it has prospects of success under CCZ
3/24 as the failure to adopt form CCZ 1 is simply for convenience and has no bearing
whatsoever on the constitutional violation that this Court is being called upon to
determine. It asserted that three judges of this Court had already accepted that it had an
arguable case on the violation of its rights under s 69(2) and (3) of the Constitution, hence
it was in the interests of justice that the application for condonation be granted. It
therefore prayed that it be permitted to substitute the correct form to the substantive
application. The applicant, therefore, prayed for the following order:
1. The applicant’s failure to comply with rule 22 of the Constitutional Court
Rules be and is hereby condoned.
2. The applicant’s draft Form CCZ 1 annexed to the founding affidavit to this
application shall be deemed to have substituted the one originally filed
under case number CCZ 3/22 (sic) and the Registrar is directed to accept
such change.
3. The service of the court application effected on the Attorney-General on
the 6th of February 2024 be and is hereby declared to be valid and the
Registrar of the Constitutional Court is directed to accept a certificate of
service filed in respect of such service.
4. There shall be no order as to costs.
Judgment No. CCZ 15/24
Constitutional Application No. CCZ 6/24 7
[16] I might say in passing that the form that the applicant filed and in respect of which it
seeks condonation has not been attached to this application. The Court is therefore left
guessing as to the supposed deficiencies therein. The application was vehemently
opposed by the respondent which raised the following preliminary objections against it:
i. The application was brought in terms of the wrong rule as r 5(1) is for the Court’s
own use and does not give an applicant the right to approach this Court for relief.
ii. The application was incompetent because the applicant was seeking condonation
of an invalid process. The respondent averred that as the application under CCZ
3/24 does not comply with r 22(2) (b)-(d), it was invalid and may not be
condoned.
iii. The respondent further averred that the application for condonation was
incompetent as the application under CCZ 3/24 had been deemed abandoned and
dismissed by operation of the law for the applicant’s failure to timeously serve the
Attorney General. The applicant, therefore, could not seek condonation for an
application that was no longer before the Court.
Premised on the above, the respondent prayed that the Court uphold the objections and
strike the application off the roll.
[17] On the merits, the respondent contended that the applicant had not established a basis for
the grant of condonation. It stated that the order that the Court issued under CCZ 2-24 did
not authorise the applicant to file an application that contravenes the Rules. Rather, the
Court ordered the applicant to file an application that was “substantially in accordance
Judgment No. CCZ 15/24
Constitutional Application No. CCZ 6/24 8
with the draft” in the sense that the application could only raise issues that the Court had
considered in the application for direct access. The respondent contended that the
applicant’s legal practitioners were negligent in drafting the substantive application by
failing to ensure that it complied with the Rules.
[18] The respondent also contended that the Court had no power to substitute a void
application with another. It added that the correct remedy that should have been adopted
by the applicant was to apply for condonation and an extension of time within which to
comply with the timelines for the of filing a valid application. It also averred that s 85(3)
of the Constitution did not authorise the disregard and contempt of the Rules of Court,
hence the applicant could not rely on that section to mask its failure to comply with the
Rules.
[19] As regards the issue of the service of the application under CCZ 3/24 upon the Attorney-
General, the respondent averred that rule 45 of this Court’s Rules as read with r 39(2) of
the Supreme Court Rules, required the service of CCZ 3/24 on both the respondent and
the Attorney-General to be effected within three days of the application being filed.
Given this, the respondent asserted that the Registrar was correct to reject the certificate
of service on the Attorney-General.
[20] The respondent also sought to make submissions on the supposed lack of merits of the
application filed under CCZ 3/24. I do not consider it necessary to delve into those issues.
Judgment No. CCZ 15/24
Constitutional Application No. CCZ 6/24 9
The application is not before this Court. It is before the full bench and this Court as
constituted has no business enquiring into any matter in respect of the same.
SUBMISSIONS BEFORE THIS COURT
[21] At the hearing of the application, counsel for the respondent persisted with the
preliminary objections that the application before the Court was incompetent and invalid
as it had been brought in terms of the wrong rule. The respondent added that condonation
was being sought concerning an application that was invalid and that had been deemed
abandoned and dismissed by operation of law for its non-compliance with the Rules.
[22] In relation to the merits, counsel for the applicant, Mr. Magwaliba, submitted that
applications in terms of s 85 of the Constitution are not governed by the Rules. He argued
that the Court is given the discretion to condone a failure to abide by the Rules where the
rights enshrined in [Chapter 4] are concerned. Counsel submitted that where non-
compliance arises from anything other than time compliance, then a litigant may seek
condonation.
[23] In addition, the applicant contended that it seeks condonation for its failure to file proof
of service of the application upon the Attorney-General within three days after service
was effected. Counsel submitted that an attempt to file such proof eight days after this
was done was unsuccessful as the registrar rejected the same on the premise that it was
being filed out of time. He further argued that the registrar ought not to have rejected the
proof of service as the rules do not specify a period by which such proof should have
Judgment No. CCZ 15/24
Constitutional Application No. CCZ 6/24 10
been filed of record. The application was filed within the ten days that the court ordered
for filing and in that respect, it is properly before the court.
[24] Mr. Magwaliba further asserted that there is no time limit required for service of an
application upon the office of the Attorney-General where the same is not an interested
party. He argued that r 39 (2) of the Supreme Court Rules cannot, as a result, be invoked
in this case as the provision deals with civil appeals to the Supreme Court emanating
from the High Court. Counsel further submitted that a breach of r 62 of the High Court
Rules may be condoned. He further argued that this was not an application for
condonation for the failure to file an application on time because the application under
CCZ 3/24 was filed on time. He argued that, rather, this was an application for
condonation and for amendment for that which was filed in error. He argued that the
amendment seeks to validate that which was already filed.
[25] Per contra, Mr Mubaiwa, counsel for the respondent moved for the Court to dismiss the
application on the basis of the preliminary issues raised as regards the current application.
Firstly, counsel contended that the application has been brought under the wrong rule. To
this end, Mr Mubaiwa submitted that the applicant seeks condonation in respect of an
invalid process. He suggested that instead of mounting the application in the form it has
done, the applicant ought to have filed an application for condonation and extension of
time within which to file its substantive application. He argued further that the application
in casu is bad at law and must be struck off the roll.
Judgment No. CCZ 15/24
Constitutional Application No. CCZ 6/24 11
[26] Secondly, counsel argued that the applicant failed to serve the application on the
Attorney-General within a specified period. Resulting from that the application was
deemed abandoned and was, as a consequence, dismissed by operation of law. The
respondent’s case therefore was that this dismissal was due to the failure on the part of
the applicant to serve the Attorney-General within a period of three days post the filing of
the application. This last contention was premised on r 45 of the Supreme Court Rules of
2018, and it was argued that the requirements set out in rule 22 are material, and the
failure to abide thereby rendered the application filed under CCZ 3/24 fatally defective.
He further argued that condonation cannot be sought in respect of a fatally defective
process. Mr Mubaiwa suggested that instead condonation must first be sought and after it
has been granted, then a proper application should thereafter be filed. He argued that this
was a matter that involved failure to comply with time limits as the applicant failed to file
a valid application within the specified time limit, and as a consequence, the applicant
was required to seek condonation for the failure.
[27] Engaged by the Court on the need to consider the interests of justice rather than focusing
on technicalities, counsel for the respondent argued that there must be a basic minimum
standard upon which the Court may condone failure to comply with the Rules and that
there are instances where a litigant may go way below the bar set out by the Rules.
[28] The parties have identified the issues for determination as being the following; whether
the matter, having been brought under r 5, is properly before the Court; whether the
process filed by the applicant is invalid and thus incapable of being rectified through an
Judgment No. CCZ 15/24
Constitutional Application No. CCZ 6/24 12
order of condonation by this Court and lastly, whether there was an obligation to serve
the application upon the Attorney-General and if so whether the matter is deemed
abandoned by operation of law.
[29] Before delving into the merits of the application for condonation, it is pertinent that I
address the preliminary objections raised by the respondent. Of primary importance is the
first preliminary objection that the present application was brought in terms of the wrong
rule. If it is upheld it may be wholly dispositive of this matter.
WHETHER THE APPLICATION IS PROPERLY BEFORE THE COURT.
[30] In its founding affidavit and the cover of the application, the applicant unequivocally
stated that it was seeking condonation for its failure to comply with rule 22(2)(b)-(d)
under CCZ 3/24, in terms of rule 5 which deals with departures from rules and directions
as to procedure.
[31] The respondent, on the other hand, submitted that r 5(1) (a) upon which the application
was based did not give the applicant the right to approach this Court for relief. It argued
that the rule may only be invoked by the Court for its own use. Based on this, the
respondent contended that the application in casu was incompetent and ought to be struck
off the roll.
[32] Although the parties have framed the issues in the manner set out above, given the history
and trajectory that this matter has gone through, I would phrase the issue of the propriety
Judgment No. CCZ 15/24
Constitutional Application No. CCZ 6/24 13
of the matter differently. In my view the first issue is whether the bench, as constituted,
has the jurisdiction to determine the application for condonation itself.
Does the Court constituted as it is in casu have the requisite jurisdiction to determine this
application?
[33] The issue that arises from the first preliminary objection is whether there is a proper and
competent application for consideration by this Court. Rule 5(1) (a) provides as follows:
“5 Departure from rules and directions as to procedure.
(1) The Court or a Judge may, in relation to any particular case before it or
him or her, as the case may be—
(a) direct, authorise or condone a departure from any provision of these rules,
including an extension of any period specified therein, where it or he or
she, as the case may be, is satisfied that the departure is required in the
interests of justice…” (emphasis added)
[34] A perusal of r 5(1)(a) would suggest that the rule applies to cases that are currently before
the Court or a judge and the Court or judge deems it necessary that non-compliance with
the Rules ought to be condoned or that a departure from the dictates of the Rules may
serve the interests of justice. See Minister of Mines & Mining Development and Anor v
Fidelity Printers & Refiners (Private) Limited & Anor CCZ 9-22.
[35] In casu, the relief that the applicant seeks relates to an application under CCZ 3/24 that is
currently pending before the full bench of this Court. The applicant seeks an order that
the form CCZ 1 attached to the application under CCZ 3/24 be substituted with one
that complies with rule 22(2) (b)-(d).
Judgment No. CCZ 15/24
Constitutional Application No. CCZ 6/24 14
[36] The inescapable issue for consideration is that the Court sitting to determine an
application for direct access under r 22 of the rules of the Court, granted leave for direct
access to the applicant for the enforcement of alleged violation of its fundamental rights.
That Court, in determining the application, had regard to the provisions of r 21 and in
particular subrule (8) thereof which requires an applicant to establish in the application,
amongst other factors, the following: the prospects of success if leave is granted; the
availability or lack thereof of any other remedy and whether there are disputes of fact
bedevilling the matter.
[37] By granting leave, the Court was therefore satisfied that the applicant had established
those requirements that the law obliged it to. Put differently, the net effect of the order
granting leave was to sift the applicant’s case as deserving leave and to clear the way for
it to approach the Court directly and initiate proceedings for the enforcement of its rights
under the Constitution. This the applicant proceeded to do by filing the application in the
form it is under CCZ 3/24.
[38] In raising the point that the applicant has brought an incompetent application primarily
based on the alleged invalidity of the form annexed to the substantive application, the
respondent has contended that the applicant should have applied for condonation, coupled
with a prayer for an extension of time within which to file its application.
Judgment No. CCZ 15/24
Constitutional Application No. CCZ 6/24 15
[39] Apart from r 35 which provides for the procedure for condonation for the late noting of
appeals, the rules of the Court, do not provide for a procedure for the condonation and
extension of time within which to file an application such as the one before the Court.
[40] In moving for a finding that the application was premised on the wrong rule, Mr
Mubaiwa contended that the applicant ought to have invoked r 43 of the Supreme Court
Rules 2018. Before considering the import of that objection, it is necessary that I first
consider whether the Court is properly seized with the application for condonation.
[41] The appropriateness or lack thereof of the application brings to the fore the issue of the
jurisdiction of the Court, constituted by a three-member panel, to delve into, and
determine an interlocutory application that is intrinsically connected with a constitutional
matter. The effect of the order granting leave to the applicant to approach the
Constitutional Court must not be lost. The Constitutional Court is a creature of statute and
its jurisdiction must be viewed in accordance with the provisions of the Constitution.
[42] In this regard, s 166(3) sets out the jurisdictional ambit of the Court in relation to the
colour of the dispute pending for adjudication before the Court. In view of the allegation
that the applicant makes and, regard being had to the relief it ultimately seeks, the Court
before which its dispute is pending is the full bench as is provided in s 166(3) of the
Constitution.
Judgment No. CCZ 15/24
Constitutional Application No. CCZ 6/24 16
[43] That this Court does not have the authority to grant the current application in which the
relief sought relates to an application that is pending before the full bench is evident when
one has regard to s 166(3) as read with subsection (1) of the Constitution. Subsection (3)
states that:
“(3) Cases before the Constitutional Court—
(a) concerning alleged infringements of a fundamental human right or freedom
enshrined in Chapter 4, or concerning the election of a President or Vice-
President, must be heard by all the judges of the Court;
(b) other than cases referred to in paragraph (a), must be heard by at least three
judges of the Court; but an Act of Parliament or rules of the Court may
provide for interlocutory matters to be heard by one or more judges of the
Court.”
[44] The definition of the “Court” as provided for in the Constitutional Court Act [Chapter
7:22] is “the Constitutional Court established by section 166 of the Constitution”. Section
166(1) of the Constitution defines the Court as:
“166 Constitutional Court
(1) The Constitutional Court is a superior court of record and consists of—
(a) the Chief Justice and the Deputy Chief Justice; and
(b) five other judges of the Constitutional Court;”
[45] A reading of the above provisions must lead to the conclusion that being a court created
by statute, the Court can only deal with matters before it according to the dictates of the
law governing its creation and jurisdictional limits. The Constitution has, in clear terms,
delineated the number of judges constituting the court and how the Court must approach
the matters that find their way before it.
Judgment No. CCZ 15/24
Constitutional Application No. CCZ 6/24 17
[46] It is therefore pertinent to discuss what is meant by the word “jurisdiction” particularly in
view of the fact that the present panel constitutes part of the Court itself. Jurisdiction, as it
relates to judicial matters, defines the authority and limits that a judicial body is
empowered with to render justice. Within the court system, jurisdiction is determined in
terms of the following; subject matter, territorial and jurisdiction over persons.
[47] In casu we are concerned with the jurisdiction relating to subject matter. The
Constitutional Court, not being a court of original jurisdiction, may only hear and
determine those matters that the Constitution has specifically given it jurisdiction to hear
and determine. Empowered by the Constitution, the rules have set out the manner in
which the Court may determine the matters brought before it by those parties seeking to
enforce provisions of the Constitution.
[48] By parity of reasoning, this Court, as a three-member bench, cannot grant the indulgence
sought by the applicant as that would amount to usurping the powers of the full bench
that is now seized with the matter. To buttress this view, I must have regard to the rules.
R 21(4) in terms of which leave must be sought reads:
“(4) The applicant shall attach to the application a draft of the substantive application
he or she seeks to file with the Court”.
[49] In view of the definition of “Court” in the Constitution, there can be no doubt that the
Court, once the applicant was granted leave for direct access, is now seized with the
application for the enforcement of the rights that the applicant alleges have been violated.
Judgment No. CCZ 15/24
Constitutional Application No. CCZ 6/24 18
[50] The rules of the Court provide for applications for direct access or leave to appeal to be
heard by judges of the Court. On the other hand, the Constitution is very specific and
categoric in its terms and makes it obligatory for any matter concerning allegations of
violations of a fundamental right to be heard by the Court. It is worth noting that whilst
the proviso to s 166(3) makes provision for the promulgation of an Act or rules of court
to permit the determination of interlocutory matters by one or more judges of the Court, it
is evident that the Constitutional Court Act [Chapter 7:22], as currently enacted, has not
provided for the exercise of this jurisdiction by one or more judges as contemplated in the
proviso to s 166(3). The exercise of jurisdiction by a court or a judge other than the full
bench is thus limited to the determination of applications for leave for direct access, leave
to appeal to the Court and applications by an applicant to appear as amicus curiae. Also,
it is worth noting that applications in respect of interlocutory matters can be heard by a
single judge in terms of s 166 (3) but only if the Act or the rules allow.
[51] To emphasise the limitations of the jurisdictional ambit of this Court as constituted it
becomes necessary to set out the provisions of s 4 of the Constitutional Court Act. It
provides as follows:
“4 Composition of Court
(1) The Court’s composition shall be as specified in section 166(1) of the
Constitution.
(2) For the purpose of exercising its jurisdiction in a case concerning alleged
infringements of a fundamental right enshrined in Chapter 4 of the
Constitution, or the election of a President or Vice-President, the Court shall
be constituted by all the Judges in accordance with the provisions of section
166(3)(a) of the Constitution.
Judgment No. CCZ 15/24
Constitutional Application No. CCZ 6/24 19
(3) Where the leave of the Court is required in terms of the rules to bring a
matter directly to the Court or to appeal directly to the Court from any other
court or to appear as an amicus curiae of the Court, the matter may be heard
by a Judge in chambers or by such number of Judges as the Chief Justice
may direct.
[60] Subsection (2) above brings emphasis to the provisions of s 166(3). The full bench is
mandated by law to hear and determine cases concerning allegations of the infringement
of fundamental rights, the election of a President or Vice-President and allegations of a
failure to fulfil a constitutional obligation in terms of s 167(2)(d). The application in
respect of which amendments to Form CCZ 1 are being sought is pending before the
Court. The failure to serve on the Attorney-General within eight days of filing of that
application would have an impact on that application if it was found to be contrary to the
rules. These therefore are matters that only the Court, sitting quorate, can advert to and
determine. As this court cannot render judgment on the application, it is therefore
disabled by law.
[61] Thus, the law is clear. It has clearly stated that only the full bench is endowed with the
necessary jurisdiction to entertain a dispute concerning alleged infringement of
fundamental rights. In my view that is the Court that may adjudicate on and determine the
appropriateness of the applicability of r 5. This is an application that is directly linked to
an application such as the one referred to above.
Judgment No. CCZ 15/24
Constitutional Application No. CCZ 6/24 20
[62] The Constitution has not granted to a three-member panel the jurisdiction to determine an
application in which it is alleged that a violation of fundamental rights has occurred. Its
jurisdictional ambit as spelt out in s 4 (3) of the Constitutional Act is to hear and
determine applications for leave, either for direct access or for leave to appeal and in
addition leave to appear before the Court as amicus curiae. A bench that is not constituted
by all members of the Court has no jurisdiction other than that mentioned herein.
[63] Effectively therefore, the application filed under CCZ 3/24 is before the full bench and
that is the Court seized with the matter. This particular court constituted as it is, is not
empowered by law to consider and determine any issues directly connected with the
validity or otherwise of the pending application.
[64] Thus, as the current bench does not constitute the full bench of the Constitutional Court
which has the mandate to deal with applications for alleged infringement of fundamental
human rights, this court cannot accede to the prayer and grant the applicant leave to make
substantial changes to a matter that is already pending resolution before the full bench.
[65] The above position is supported by the dicta in Blue Ranges Estates (Pvt) Ltd & Ors v
Muduviri & Anor 2009 (1) ZLR 368 (S). In determining whether a single judge in
chambers could strike off the roll an appeal pending in the Supreme Court, MALABA
DCJ (as he then was) at 375B-D held that:
“A court of law will not entertain proceedings such as an appeal unless it is satisfied
that it is competent to do so and that the proceedings have been instituted in the
proper form. In providing that, for the purpose of exercising its jurisdiction over any
matter, the Supreme Court shall be duly constituted if it consists of no less than three
Judgment No. CCZ 15/24
Constitutional Application No. CCZ 6/24 21
judges, s 3 of the Act effectively precludes a single judge sitting in chambers or open
court from exercising the power conferred on the court under s 21. The words “any
matter” in s 3 of the Act include the question whether the terms of the enactment,
giving the right of appeal from a particular court, limit the power of the Supreme
Court to hear the appeal in respect of the order from which relief is sought by the
aggrieved party. It is for the Supreme Court, duly constituted, to make a finding that
no appeal lies to it against the order and strike the appeal from the roll. (emphasis
added)
See also Guwa & Anor v Willoughby’s Investments (Pvt) Ltd 2009(1) ZLR 380 and
Tshuma v Magwaza & Ors SC 108-20 at pg. 5-6
[66] Although the dicta in the authority above was in respect of a matter pending before the
Supreme Court, itself also a creature of statute, the principle of law enunciated therein
applies with equal force in this matter. In as much as a single judge of the Supreme Court,
sitting in chambers is disabled from declaring that a notice of appeal is invalid, equally,
judges of the Court sitting to determine a chamber application in respect of a matter
pending before the full bench, are not empowered by law to speak to the validity or
otherwise of the pending application. If that were not so, a matter pending before the full
Court could well be struck off the roll without the full Court itself being aware.
[67] Superior Courts are under the common law and in terms of s 176 endowed with
inherent power to control their own processes. Applications for condonation in any form
for matters pending before the full bench are not included in s 4(3) above. However, the
rules, in terms of r 5, make it clear that the court seized with the matter may condone a
departure from its rules and may give directions as to the procedure to be adopted before
it. I have no doubt that the consideration of whether or not the defect in the papers filed
by the applicant in CCZ 3/24 constitutes the exercise of the Court’s inherent power. It is
Judgment No. CCZ 15/24
Constitutional Application No. CCZ 6/24 22
the Court thus empowered to determine that process not a three-member bench as this
court is.
[68] It is thus, consequent to the grant of leave to access the court directly, up to the full bench
to decide whether the application under CCZ 3/24 properly complies with the Rules and
whether condonation may be granted for any non-compliance with the Rules in
accordance with r(5)(1) of the Rules of the Court.
[69] In addition, given that this Court, under CCZ 2-24 (the application for direct access),
granted the applicant leave to approach the full bench without raising any issues
concerning the validity or competence of the substantive application, it is not for this
bench to now address any defects that may be attendant to the application. Any attempt
by this bench as constituted would amount to a review of the process through which leave
for direct access was granted and this is impermissible. The matter is now firmly within
the purview of the full bench which must decide whether or not to condone the
shortcomings of the application.
[70] It is my view that the finding on the first preliminary objection is dispositive of the matter
as a whole. It is, consequently, not necessary for the Court to interrogate the validity of
the other preliminary objections raised by the respondent. The inability of the Court as
presently constituted to determine any of the issues is dispositive of the matter. It can
only be heard and determined by the Constitutional Court sitting as a full Court. This is
not such a court.
Judgment No. CCZ 15/24
Constitutional Application No. CCZ 6/24 23
DISPOSITION
[71] The application for condonation for failure to comply with r 22(2)(b) -(d) under CCZ
/24 is not properly before the Court. In view of the applicant having been granted leave to
file a substantive application which is before the full bench, this court cannot determine
any issue in respect of that application or grant any relief which is related thereto. This
court does not have the jurisdiction to entertain the application on the merits.
[72] In view of the undeniable fact that this matter is not before the correct panel of this
esteemed Court, the current panel of judges is not empowered to exercise any jurisdiction
to determine the matter. It seems to me that the Court must at this juncture decline the
invitation to determine the application on its merits.
Accordingly, the following order is made:
1. The present panel not having jurisdiction, the matter be and is hereby referred to
the full bench.
2. The application filed under Case No CCZ 6/24 be and is hereby consolidated
with the matter in CCZ 3/24 that is pending before the full bench of the Court.
3. There shall be no order as to costs.
MAKARAU JCC : I Agree
HLATHSWAYO JCC : I Agree
Judgment No. CCZ 15/24
Constitutional Application No. CCZ 6/24 24
Messrs. Sawyer & Mushi, applicant’s legal practitioners
Tarugarira Sande Attorneys, respondent’s legal practitioners