MEDA v SIBANDA & ORS

CONSTITUTIONAL COURT, HARARE

[Constitutional Application CCZ 10-16]

March 9, 2016

CHIDYAUSIKU CJ, MALABA DCJ, ZIYAMBI, GWAUNZA,
GOWORA, GUVAVA, MAVANGIRA, BHUNU AND UCHENA JJCC

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

MALABA DCJ:

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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In 2010, the second respondent entered into a business transaction with the first respondent in terms of which he undertook to cut timber at the latter's plantation. The second respondent failed to perform his obligations in terms of the agreement leading to the first respondent suing him for breach of contract and loss of future earnings. The first respondent obtained a default judgment from the High Court and proceeded to attach the property, which was still in the name of the second respondent. The first respondent also applied to the High Court for an order declaring the property especially executable. The applicant opposed the application on the basis that she was entitled to 50 per cent share of the property. She argued that the property could not be sold in execution to recover her ex-husband's debts.

The court a quo granted the order sought by the first respondent declaring the property especially executable. The applicant did not appeal against the judgment. It remains extant. Instead the applicant approached the court in terms of s 85 (1) of the Constitution alleging that she has personal rights to the property which have been infringed by the order declaring the property especially executable. She alleged the right to property enshrined in s 71 (3) of the Constitution has been infringed. The founding affidavit made no reference to any other fundamental human right enshrined in Chapter V of the Constitution being infringed.

Mr Mpofu for the first respondent took several points in limine. He argued that the application was improperly before the court, because the remedy the applicant should have utilised was that of an appeal to the Supreme Court as the application was in response to the judgment of the High Court. Mr Mpofu argued that the Constitutional Court has no jurisdiction to overturn an extant order of the High Court in a constitutional application not alleging that the decision was a violation of the right to equal protection of the law.

Mr Mpofu argued that if the decision of the High Court was on a constitutional point raised before that court the applicant ought to have approached the court by way of appeal on that point in terms of s 167 (5)(b) of the Constitution. Mr Mpofu further argued that the court a quo's decision was based on the interpretation and application of ss 2 and 14 of the Deeds Registries Act [Chapter 20:05] ("the Act") on real rights and the effect of their registration. According to Mr Mpofu, having not appealed against the order of the court a quo, the applicant cannot have it set aside without impugning the constitutionality of the statutory provisions in terms of which the judgment was made.

Mr Uriri for the applicant indicated that he had instructions to withdraw the matter and sought to apply that the matter be withdrawn. Mr Mpofu opposed this application arguing that the matter should not be withdrawn, but that the court exercise its discretion and dismiss the matter with costs on a higher scale.

While parties may at any time before a matter is set down, withdraw a matter, with a tender of costs the same does not hold true for a matter that has already been set down for hearing. Once a matter is set down, withdrawal is not there for the taking.

The applicable principles are set out in DE Van Loggerenberg and E Bertelsmann Erasmus: Superior Court Practice (2nd edn, Juta & Co Ltd, Cape Town, 2015) at pages B1-304. A person who has instituted proceedings is entitled to withdraw such proceedings without the other party's concurrence and without leave of the court at any time before the matter is set down. The proceedings are those in which there is lis between the parties one of whom seeks redress or the enforcement of rights against the other. An application for appropriate relief on the grounds of alleged violation of a right is such a proceeding.

Once a matter has been set down for hearing it is not competent for a party who has instituted such proceedings to withdraw them without either the consent of all the parties or the leave of the court. In the absence of such consent or leave, a purported notice of withdrawal will be invalid. The court has a discretion whether or not to grant such leave upon application. The question of injustice to the other parties is germane to the exercise of the court's discretion. It is, however, not ordinarily the function of the court to force a person to proceed with an action against his will or to investigate the reasons for abandoning or wishing to abandon one - see Abramacos v Abramacos 1953 (4) SA 474 (SR); Pearson and Hutton NNO v Hitzeroth and Others 1967 (3) SA 591 (E) at 593D, 594H;
Protea Assurance Co Ltd v Gamlase and Others 1971 (1) SA 460 (E) at 465G; Huggins v Ryan NO and Others 1978 (1) SA 216 (R) at 218D; Franco Vignazia Enterprises (Pty) Ltd v Berry 1983 (2) SA 290 (C) at 295H, and Levy v Levy 1991 (3) SA 614 (A) at 620B. See also AC Cilliers, C Loots and HC Nel 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) at page 750.

From the above authorities, it is the law that a court, having satisfied itself that a matter is properly before it, can refuse to grant an application for withdrawal of the matter.

Faced with this compelling position of the law, Mr Uriri then sought to argue that there was no application before the court to dismiss. It was his view that as an application in terms of s 85 (1)(a) of the Constitution was brought before the court instead of an appeal against the judgment of the court a quo the matter was improperly before the court.

Mr Uriri failed to appreciate the import of s 85 (1) of the Constitution. Section 85 of the Constitution provides:

"85 Enforcement of fundamental human rights and freedoms

(1) Any of the following persons, namely –

(a) any person acting in their own interests;

(b) any person acting on behalf of another person who cannot act for themselves;

(c) any person acting as a member, or in the interests, of a group or class of persons;

(d) any person acting in the public interest;

(e) any association acting in the interests of its members,

is entitled to approach a court, alleging that a fundamental right or freedom enshrined in this Chapter has been, is being or is likely to be infringed, and the court may grant appropriate relief, including a declaration of rights and an award of compensation.

(2) The fact that a person has contravened a law does not debar them from approaching a court for relief under subsection (1).

(3) The rules of every court must provide for the procedure to be followed in cases where relief is sought under subsection (1), and those rules must ensure that –

(a) the right to approach the court under subsection (1) is fully facilitated;

(b) formalities relating to the proceedings, including their commencement, are kept to a minimum;

(c) the court, while observing the rules of natural justice, is not unreasonably restricted by procedural technicalities; and

(d) a person with particular expertise may, with the leave of the court, appear as a friend of the court.

(4) The absence of rules referred to in subsection (3) does not limit the right to commence proceedings under subsection (1) and to have the case heard and determined by a court." (my emphasis)

It is clear from a reading of s 85 (1) of the Constitution that a person approaching the court in terms of the section only has to allege an infringement of a fundamental human right for the court to be seized with the matter. The purpose of the section is to allow litigants as much freedom of access to courts on questions of violation of fundamental human rights and freedoms with minimal technicalities. The facts on which the allegation is based must of course, appear in the founding affidavit.

Whether or not the allegation is subsequently established as true is a question which does not arise in an enquiry as to whether the matter is properly before the court in terms of s 85 (1) of the Constitution. In this case, the applicant alleged in the founding affidavit that her right to property had been infringed.

Whether her allegation is true or not is not the issue. What matters is that she alleged a violation of a fundamental human right and as such the court was properly seized with the matter. The question of the veracity of the allegation would have been tested on the basis of evidence placed before the court.

The court agrees with Mr Mpofu that there is an application before it to dismiss. Having made this finding, the court also accepts Mr Mpofu's preliminary point that the applicant should have exhausted the remedy of an appeal instead of making a constitutional application. The law provides a clear remedy of an appeal where an applicant is not happy with a decision of a lower court. Competent relief could have been granted by the Supreme Court, on appeal since all that the applicant wanted was an order that the property in dispute was not especially executable and subject to sale by execution.

In S v Mhlungu and Others 1995 (3) SA 867 (CC) at para [59], a general principle is laid down to the effect that where it is possible to decide any case, civil or criminal, without reaching a constitutional issue, that is the course which should be followed.

In MEC for Development Planning & Local Government, Gauteng v Democratic Party and Others 1998 (4) SA 1157 (CC) at para [32] it was said:

"Where there are both constitutional issues and other issues in the appeal, it will seldom be in the interests of justice that the appeal be brought directly to this Court."

Useful guidance can also be gleaned from the decisions of the United States Supreme Court. In Spector Motor Service, Inc v McLaughlin 323 US 101 (1944) at 103, JUSTICE FRANKFURTER remarked:

"If there is one doctrine more deeply rooted than any other in the process of constitutional adjudication, it is that we ought not to pass on questions of constitutionality...unless such adjudication is unavoidable."

In Ashwander v Tennessee Valley Authority 297 US 288 (1936) at 345-48, the court held:

"The last resort rule states that a court should 'not pass upon a constitutional question ...if there is also present some other ground upon which the case may be disposed of.'"

It was the unanimous decision of the court that the matter be dismissed.

Costs

The applicant, through Mr Uriri offered to pay costs on the ordinary scale. However, Mr Mpofu for the first respondent argued that the applicant should be mulcted with costs on the legal practitioner and client scale. It was his submission that the matter, between the same parties, on the same facts and for the same relief had previously been brought by the applicant under a different case no. CCZ 31/15, and had been struck off the roll. It was Mr Mpofu's submission that the court in that earlier case had highlighted the defects in the application to the applicant's legal practitioners. The same application has been brought with the same defects.

While it is rare for the court to grant costs on a higher scale in constitutional matters, it is the unanimous view of the court that the applicant's conduct justifies such an award of costs. The defects that afflicted the first application were not attended to. Just as was the case with the previous application it has not been shown in the founding affidavit how s 71 (3) of the Constitution has been infringed. There is no doubt that the application should not have been brought to the court.

CHIDYAUSIKU CJ, ZIYAMBI, GWAUNZA, GOWORA, GUVAVA, MAVANGIRA, BHUNU and UCHENA JJCC concurred.

Chinawa Law Chambers, applicant's legal practitioners

Coghlan Welsh & Guest, first respondent's legal practitioners

 

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