CHUMA v MUGABE NO & ANOR
HIGH COURT, HARARE
[Court Application HH 609-15]
June 30, July 2 and 9, 2015
BHUNU J
Administrative law - Political party - Duty of a litigant to exhaust domestic remedies provided in a party constitution before seeking judicial review before the High Court.
The applicant, a politician, applied to the High Court for the review of a decision by the second respondent to expel him from the first respondent political party.
Held, that the first respondent had disciplinary procedures set out in its Constitution that encompassed an elaborate system of review and appeal mechanisms. The party Constitution provided the same remedy the applicant was seeking before the court. In the absence of any valid reason why the applicant did not exhaust the domestic remedies provided in the first respondent's Constitution, he was not entitled to the relief sought. The applicant was enjoined to exhaust his domestic remedies first.
Cases cited:
Moyo v Forestry Commission 1996 (1) ZLR 173 (H), applied
Musandu v Chairperson of Cresta Lodge Disciplinary and Grievance Committee HH 115-94 (unreported), applied
Legislation considered:
Constitution of Zimbabwe Amendment (No 20) Act, 2013, s 129(k)
High Court Act [Chapter 7:06], s 26
High Court Rules, 1971 (RGN 1047 of 1971), O 3 r 18, O 33 r 256
T Biti, for the applicant
T Hussein, for the respondents
BHUNU J:
This is an application for review presumably in terms of s 26 of the High Court Act [Chapter 7:06]. The Applicant was a senior member of the Zimbabwe African National Union (Patriotic Front) a duly registered political party known under its acronym ZANU PF.
In the course of his political career he rose through the ranks to the dizzy heights of Politburo member, Member of Parliament and Provincial Minister of Masvingo Province. He has since been expelled from the party with effect from 21 May 2015.
The first respondent is the President of the Republic of Zimbabwe cited in his official capacity as leader and President of the ruling Party ZANU PF, the second respondent in this case.
ZANU PF is a voluntary association of people with the same political agenda and aspirations. It has a Constitution comprising a body of rules for the management of party affairs. In other words, its Constitution is the fundamental code of conduct regulating relationships between the party and its members.
Under art 10, the party Constitution provides for an elaborate comprehensive system of disciplinary committees ranging from Branch Disciplinary Committees up to the Central Committee. According to the party Constitution only the National Disciplinary Committee can expel a member from the party under para 82 which provides that:
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"82. For the avoidance of doubt only the National Disciplinary Committee shall have the power to expel a member from the party."
The applicant was expelled from the party by the National Disciplinary Committee on 21 May 2014 mainly on allegations of pushing for regime change and ouster of the first respondent from his post as President of the party and government. His expulsion from the party culminated in his removal from Parliament and loss of his ministerial post in terms of s 129(k) of the Constitution of Zimbabwe Amendment (No 20) Act, 2013.
Aggrieved by his expulsion from the party which led to the loss of all his party and government posts, the applicant filed this application for review on 8 June 2015 seeking to salvage his loss. At the commencement of the hearing for review Mr Hussein counsel for the respondents took a number of preliminary points in limine which I may summarise as follows:
"1. That the applicant has not exhausted domestic remedies.
2. That the applicant has not sought leave to sue the first respondent in terms of O 3 r 18 of the High Court Rules, 1971.
3. That the High Court has no jurisdiction to review the decision of a political party because O 33 r 256 of the High Court Rules, 1971 limits the jurisdiction of the High Court to, "any inferior court, board or officer performing judicial, quasi-judicial or administrative function."
I now turn to consider the effect of failure to exhaust domestic remedies. As I have already stated above, it is common cause that ZANU PF is a political party with a Constitution that has disciplinary procedures comprising an elaborate system of review and appeal procedures. In other words it has built in self-correcting measures and safeguards meant to correct any faulty decisions of the lower disciplinary committees.
Section 74 of art 10 of the party Constitution provides that:
"The Central Committee may, on appeal or review, confirm, amend or reverse the decision of the National Disciplinary Committee"
It is clear that the party Constitution provides the same remedy that the Applicant is seeking in this Court in the form of a review. When two or more adults of sound mind come together and consent to a lawful agreement that agreement is sacrosanct, binding and enforceable. In the absence of any cogent and valid reason as to why a party should not be bound by his free volition the courts will always lean in favour of the fulfilment of the parties' agreement rather than its abrogation.
When the applicant joined the party ZANU PF he freely and voluntarily elected to be bound by its Constitution. He therefore stands fully bound by the party Constitution until he has exhausted the remedies provided in that Constitution.
The exhaustion of domestic remedies before approaching the courts is a well-known administrative law principle. The mischief behind the principle is to avoid clogging the courts with matters that can be resolved in-house at shop level without the involvement of strangers. The modern trend is to resort more and more to alternative dispute resolution methods which are often better suited in resolving social disputes.
This Court has said time without number that there is need to exhaust domestic remedies before approaching the courts. In Musandu v Chairperson of Cresta Lodge Disciplinary and Grievance Committee HH 115-94, SMITH J had this to say:
"In my view this Court should not be prepared to review the decision of a domestic tribunal merely because the aggrieved person has decided to apply to court rather than to proceed by way of the domestic remedies before approaching the courts unless there are good reasons for approaching the court earlier"
MALABA J (as he then was) had occasion to remark in Moyo v Forestry Commission 1996 (1) ZLR 173 (H) at 192 that:
"A court will not insist on an applicant first exhausting domestic remedies where the appeal system created by the code of conduct does not confer on the aggrieved party better and cheaper benefits than its remedies or where the decision to be appealed against undermined the domestic remedies themselves, for example, where the tribunal had no power to make the decision in question:..."
As we have already seen no appeal lies to this Court in terms of the party Constitution. This Court can therefore only intervene on review in terms of s 26 of the High Court Act which provides that:
"26 Power to review proceedings and decisions
Subject to this Act and any other law, the High Court shall have power, jurisdiction and authority to review all proceedings and decisions of all inferior courts of justice, tribunals and administrative authorities within Zimbabwe."
It is self-evident that this court has no appeal jurisdiction as it is limited to its review jurisdiction. Domestic remedies have therefore, a clear advantage over this court in that the Central Committee as we have already seen is clothed with both appeal and review jurisdiction. As such it is capable of determining the matter fully under one roof. In legal parlance it is capable of delivering both procedural and substantive justice while this court can only resolve the procedural aspects of the case leaving the substantive issues to be determined through the domestic remedies anyway.
Thus while the applicant may evade the Central Committee in respect of the procedural aspects of the case, he cannot do so in respect of the more important substantive issues which are critical to the determination of the case.
The only cogent reason advanced by the applicant for fleeing to the High Court is that the first respondent chairs both the Central Committee and the Politburo. The law is however, very clear, that no man shall be a judge in his own case. I take judicial notice that the first respondent is an educated man who is unlikely to insist on presiding over a case in which he has a personal interest. This explains why counsel for the applicant had no cogent sensible counter argument when counsel for the respondents submitted that his fears could easily be addressed by the first respondent recusing himself as the central committee is composed of more than 300 members.
The other reason why domestic remedies are best suited to determine this case, is that the matter has to do with voluntary association of free human beings in a democratic environment. While the Constitution confers the right of association on the applicant, he can only associate with those who want to associate with him. The parties are associated for a common purpose of which domestic remedies are best suited to determine whether or not it is in the best interest of the association for the relationship to endure. That determination can only be made in-house and not by strangers.
Finally, recourse to domestic remedies is a less complex and faster process that relieves the Applicant of the complexities and controversies of the need to seek leave to sue the first respondent as head of state.
For the foregoing reasons I come to the conclusion that the applicant has prematurely approached this court before exhausting his domestic remedies at his disposal.
It is accordingly ordered that the application be and is hereby dismissed with costs.
Tendai Biti Law, applicant's legal practitioners
Hussein Ranchhod & Co, respondent's legal practitioners
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