COLD CHAIN (PVT) LTD t/a SEA HARVEST v MAKONI

CONSTITUTIONAL COURT, HARARE

[Chamber Application CCZ 8-17]

March 5, 2014

CHIDYAUSIKU CJ, MALABA DCJ, ZIYAMBI, GWAUNZA, GARWE,
GOWORA, HLATSHWAYO, PATEL AND GUVAVA JJCC

Court – Constitutional Court – Constitutional Court Rules, 2016 – Rule 32 – Leave to appeal from subordinate court – Requirements to be satisfied.

There are two main requirements to be satisfied by an applicant seeking leave to appeal from a subordinate court to the Constitutional Court. First, there must have been a constitutional matter raised in the subordinate court. Further, the constitutional issue must be one which the determination by the subordinate court was necessary for the disposition of the dispute between the parties. Secondly, the applicant must show that there are reasonable prospects that the Constitutional Court will reverse or materially alter the judgment if leave is granted.

Cases cited:

National Education Health and Allied Workers Union v University of Cape Town and Others 2003 (3) SA 1 (CC); (2003) 24 ILJ 95 (CC);
2003 (2) BCLR 154 (CC), referred to

Nyamande & Anor v Zuva Petroleum (Pvt) & Anor 2015 (2) ZLR 351 (CC), referred to

S v Basson 2005 (1) SA 171 (CC); 2004 (1) SACR 285 (CC); 2004 (6) BCLR 620 (CC); [2004] ZACC 13, referred to

Legislation considered:

Constitution of Zimbabwe, 2013, ss 167 (1), 176, 332

Constitutional Court Rules, 2016 (SI 61 of 2016), rr 32 (2), (3)(c)

Book cited:

Karger A and Cohen H The Powers of the New York Court of Appeals
(3rd edn, Thomson West, 2005)

F Mahere, for the applicant

The respondent in person

MALABA DCJ:

This is a chamber application for leave to appeal to the Constitutional Court, from a decision of the Supreme Court in terms of r 32 (2) of the Constitutional Court Rules, 2016 (SI 61 of 2016) (“the Rules”). Rule 32 (2) provides that “a litigant who is aggrieved by the decision of a subordinate court on a constitutional matter can apply to the Constitutional Court for leave to appeal against such decision”.

In 2008 the respondent sued the applicant for damages arising out of a motor vehicle accident that occurred on 21 December 1999 between the respondent
and a driver employed by the applicant. On 23 January 2008 the High Court found the applicant vicariously liable for the accident and awarded the respondent various heads of general and special damages. The damages were expressed in Zimbabwe currency and Botswana currency.

The applicant appealed to the Supreme Court against the judgment. It was partly successful in that the quantum of damages in Botswana currency were reduced on some of the heads. The applicant abandoned the appeal against the damages expressed in Zimbabwe currency. It subsequently paid the damages expressed in Botswana currency to the respondent. What remained unpaid were various awards of damages expressed in Zimbabwe currency.

In the intervening period between the hearing of the appeal and the handing down of the decision by the Supreme Court, Zimbabwe adopted a basket of foreign currencies to be used in the country. The exercise was generally referred to as dollarisation. The dollarisation rendered the Zimbabwe currency valueless. The respondent was left in possession of a judgment he could not enforce to get the value of the damages. He made an application to the High Court for an order converting the Zimbabwe dollar denomination of the damages to the equivalent United States dollars.

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