[Constitutional Application CCZ 10-16]

March 9, 2016


Constitutional law – Constitution of Zimbabwe, 2013 – Declaration of Rights – Section 85 (1) – Application under section 85 (1) – Whether application is competent where issue being raised arises from an extant order of court that has not been appealed against.

Practice and procedure – Withdrawal of a matter that has already been set down – Such withdrawal not possible without the consent of all parties or leave of court.

During the subsistence of the marriage between the applicant and her husband, a piece of immovable property was acquired and registered in the name of the husband. Upon the couple’s separation, the property remained registered in the name of the husband. The property was subsequently attached by a judgment creditor in respect of the husband’s debt. When the judgment creditor applied to the High Court for an order declaring the property specially executable, the applicant opposed the application claiming to be entitled to 50 per cent of the property. The High Court granted the application and dismissed the applicant’s objections. The applicant did not appeal against the judgment. Instead, she approached the Constitutional Court in terms of
s 85 (1) alleging an infringement of her property rights enshrined in s 71 (3) of the Constitution of Zimbabwe, 2013. A point in limine was taken regarding the propriety of the procedure adopted by the applicant.

Held, upholding the point in limine, that as long as the order of a lower court was extant, the remedy available to an applicant was an appeal and not an application under s 85 (1).

Held, further, that while a party may, at any time before a matter is set down, withdraw it with a tender of costs, the same does not hold for a matter that has already been set down for hearing. Once a matter is set down, withdrawal is not there for the taking: withdrawal requires either the consent of all the parties or the leave of the court.

Cases cited:

Abramacos v Abramacos 1953 (4) SA 474 (SR), referred to

Ashwander v Tenessee Valley Authority 297 US 288 (1936); 80 L Ed 688; 56 SCt 466; 80 L Ed 2d 688, referred to

Franco Vignazia Enterprises (Pty) Ltd v Berry 1983 (2) SA 290 (C), referred to

Huggins v Ryan NO and Others 1978 (1) SA 216 (R), referred to

Levy v Levy 1991 (3) SA 614 (A), referred to

MEC for Development Planning & Local Government, Gauteng v Democratic Party and Others 1998 (4) SA 1157 (CC), referred to

Pearson and Hutton NNO v Hitzeroth and Others 1967 (3) SA 591 (E), referred to

Protea Assurance Co Ltd v Gamlase and Others 1971 (1) SA 460 (E), referred to

S v Mhlungu and Others 1995 (3) SA 867 (CC); 1995 (2) SACR 277 (CC); 1995 (7) BCLR 793 (CC), referred to

Spector Motor Service, Inc v McLaughlin 323 US 101 (1944); 89 L Ed 101; 65 SCt 152, referred to

Legislation considered:

Constitution of Zimbabwe, 2013, ss 71 (3), 85 (1)(a), 167 (5)(b), Chapter V

Deeds Registries Act [Chapter 20:05], ss 2, 14

Books cited:

Cilliers AC, Loots C and Nel HC Herbstein and Van Winsen, The Civil Practice of the High Courts and the Supreme Court of Appeal of South Africa (5th edn, Juta & Co Ltd, Cape Town, 2009) p 750

Van Loggerenberg DE and Bertelsmann E Erasmus: Superior Court Practice (2nd edn, Juta & Co Ltd, Cape Town, 2015) pp B1-304

L Uriri, for the applicant

T Mpofu, for the first respondent

No appearance for the second, third and fourth respondents


At the end of hearing argument for both parties, the court dismissed the application with costs on the legal practitioner and client scale. It was indicated that reasons for the decision would follow in due course. These are they.

The applicant approached the court in terms of s 85 (1)(a) of the Constitution of Zimbabwe, 2013 (“the Constitution”) which provides that any person acting in their own interests is entitled to approach a court alleging that a fundamental right or freedom enshrined in Chapter V has been, is being or is likely to be infringed and the court may grant appropriate relief.

The applicant is customarily married to the second respondent. During the subsistence of the marriage immovable property known as Stand No 48 Dan Judson Road, Milton Park, Harare (“the property”) was acquired and registered in the name of the second respondent. The couple separated in 2001 and the second respondent moved out of the said property. The ownership of the house was not changed at the Deeds Registry and title remained with the second respondent.

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