[Constitutional Referral CCZ 6-17]

March 5, 2014


Constitutional Law – Constitution of Zimbabwe, 2013 – Declaration of rights
– Section 69 (3) – Right of access to the courts – Parate executie – Whether parate executie is an infringement of the right of access to the courts.

This matter was referred to the Constitutional Court by the Supreme Court. The applicant and respondent entered into a contract in terms of which the respondent’s goods were to be kept in storage by the applicant. The goods were to attract a monthly storage charge and if the storage charges remained unpaid for three consecutive months, the applicant reserved the right to sell the goods to defray the accrued charges. When the respondent breached the terms of the contract, the applicant sold the goods by public auction. The matter referred for determination was whether or not parate executie was not a violation of
s 69 (3) of the Constitution of Zimbabwe, 2013.

Held, that parate executie is part of the common law and does not contravene s 69 (3) of the Constitution. It is not contrary to public policy in the context of the right of access to the courts.

Held, further, that parate executie is not only lawful but constitutional for the reason that the debtor’s right of access to the courts is not taken away. The debtor has unlimited access to the courts to complain about the manner in which the creditor has performed the contract.

Cases cited:

Aitken v Miller 1950 SR 227; 1951 (1) SA 153 (SR), applied

Bock and Others v Duburoro Investments (Pty) Ltd 2004 (2) SA 242 (SCA); [2003] 4 All SA 103 (SCA), applied

Changa v Standard Finance Ltd 1990 (2) ZLR 412 (S), applied

Chief Lesapo v North West Agricultural Bank & Anor 2000 (1)
SA 409 (CC), not followed

Commissioner of Police v Wilson 1981 ZLR 451 (A), referred to

Du Toit v Minister for Safety and Security and Another 2009 (6)
SA 128 (CC); 2010 (1) SACR 1 (CC); 2009 (12) BCLR 1171, referred to

Findevco (Pty) Ltd v Faceformat SA (Pty) Ltd 2001 (1) SA 251 (E), not followed

Jockey Club of South Africa v Transvaal Racing Club 1959 (1) SA 441 (A), referred to

Juglal NO and Another v Shoprite Checkers (Pty) Ltd t/a OK Franchise Division 2004 (5) SA 248 (SCA); [2004] 2 All SA 268 (SCA), applied

Nkomo & Anor v Attorney-General & Ors 1993 (2) ZLR 422 (S), followed

Nyamukusa v Agricultural Finance Corporation SC 174-94 (unreported), followed

Osry v Hirsch, Loubser & Co Ltd 1922 CPD 531, referred to

Phillips v Eyre [1870] LR 6 QB 1, referred to

R v James; R v Dzagic (1988) 33 CRR 107 (SCC), referred to

Re Athlumney; Ex parte Wilson [1898] 2 QB 547; 67 LJQB 935, referred to

S v Pillay 1995 (2) ZLR 313 (H), referred to

SA Bank of Athens Ltd v Van Zyl 2005 (5) SA 93 (SCA); [2006] 1 All SA 118 (SCA), referred to

Society for the Propagation of the Gospel v Wheeler 22 Fed Case 756; 2 Gall 105 (NH Cir 1814), referred to

Legislation considered:

Constitution of Zimbabwe, 2013 ss 69 (1), (3)

Constitution of Zimbabwe Order, 1979, (SI 1600 of 1979 of the
United Kingdom) ss 16 (7), 18 (9)

South Africa:

Constitution of South Africa, s 34

Books cited:

Bell J and Engle G Cross on Statutory Interpretation (2nd edn, Butterworths, London, 1987)

Bennion FAR Statutory Interpretation (1st edn, Butterworths, London, 1984)

Hogg PW Constitutional Law of Canada (3rd edn, Carswell, Scarborough, 1992)

F Mahere, for the applicant

E Matinenga, for the respondent


This matter was initially set down on the Supreme Court roll as an appeal matter. At the hearing of the appeal, the respondent submitted that the matter raised a constitutional issue of whether the law of parate executie violates the access to the courts provision, s 69 (3) of the Constitution of Zimbabwe, 2013 (“the Constitution”). Mr Matinenga applied for a referral to the Constitutional Court for the determination of that issue. The application was granted and the court issued the following order:

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