Fairclot Investments (Private) Limited v (1) Augur Investments OA (2) Doorex Properties (Private) Limited (3) The Sheriff of Zimbabwe (4) The Registrar of Deeds

### Preamble
Judgment No. CCZ 16/24
Constitutional Application No. CCZ 43/23
1
REPORTABLE (16)
FAIRCLOT INVESTMENTS (PRIVATE) LIMITED
v
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REPORTABLE (16)

FAIRCLOT INVESTMENTS (PRIVATE) LIMITED

v

(1) AUGUR INVESTMENTS OA (2) DOOREX PROPERTIES (PRIVATE) LIMITED (3) THE SHERIFF OF ZIMBABWE (4) THE REGISTRAR OF DEEDS

CONSTITUTIONAL COURT OF ZIMBABWE
GARWE JCC, MAKARAU JCC & GOWORA JCC
HARARE: 12 FEBRUARY 2024 & 16 October 2024

L Madhuku, with T. Chinyoka, for the applicant
T Zhuwarara, with R. G. Zhuwarara, for the first and second respondents.
No appearance for the third respondent
No appearance for the fourth respondent

GARWE JCC:

(1) This is a court application for an order for direct access to the Constitutional Court made in terms of r 21 of the Constitutional Court Rules, 2016. In the event that direct access is granted, the applicant intends to file an application under s 85 (1) of the Constitution of Zimbabwe seeking a declaration that its rights to the protection of the law and to a fair hearing, guaranteed in ss 56 (1) and 69 (2) of the Constitution respectively, have been infringed by the decision of the Supreme Court of Zimbabwe in judgment SC 93/23.

(2) The judgment of the Supreme Court that forms the basis of the present application determined two appeals filed by both the first and third respondents. The central issue that arose for determination in those two appeals was whether an arbitral award, issued in
 2015 in favour of the applicant, but registered as an order of the High Court of Zimbabwe on 26 June 2019, was affected by the provisions of s 4 (1) of the Presidential Powers (Temporary Measures) (Amendment of Reserve Bank of Zimbabwe Act and Issue of Real Time Gross Settlement Electronic Dollars (RTGS Dollars) Regulations, Statutory Instrument 33 of 2019 (“S.1. 33/19”). That statutory instrument provided, amongst others, that with effect from the date of its promulgation, namely, 22 February 2019, all assets and liabilities that were, before that date, expressed in United States Dollars (other than assets referred in s 44 c (2) of the Act) were to be deemed to be values in RTGS dollars at a rate of one to one to the United States Dollar.

(3) The Supreme Court, after hearing the parties, made a determination. It held that the fact of the registration of the award did not affect its status as an asset or liability that was affected by S.1.33/19 and that the registration had been done simply for purposes of execution. It further determined that the debt was payable at the rate of one United States dollar to one RTGS dollar pursuant to S. 1. 33/19. This was a determination on a non-constitutional matter. The decision was therefore final.

(4) The applicant has sought to persuade this court to find that the decision was wrong and that it violated its fundamental rights. It further seeks an order granting it direct access to this Court so that, in addition to the declaration of the violation of its fundamental rights, the decision of the Supreme Court is set aside. On a consideration of the facts and the law, I am in no doubt that the application has no prospects of success. The application for direct access must therefore fail because it is not in the interests of justice that such access be granted.


FACTUAL BACKGROUND

(5) The applicant is a construction company duly registered in terms of the laws of Zimbabwe and trading as Trucking Construction (Pvt) Ltd. The first respondent is a foreign company and peregrinus with business and property interests in Zimbabwe. The second respondent is Doorex Properties (Pvt) Ltd and is also a company registered in terms of the laws of Zimbabwe. The third respondent is the Sheriff of Zimbabwe, duly cited in his/her official capacity, whilst the fourth respondent is the Registrar of Deeds, also cited in his/her official capacity.

(6) The applicant obtained an arbitral award against the first respondent in the sum of USD 4 800 000 excluding interest on 19 March 2015. The first respondent attempted, unsuccessfully, to challenge the award. On 6 May 2019 the Supreme Court dismissed an appeal by the first respondent against a judgment of the High Court dismissing its application for the setting aside of the arbitral award. On 22 February 2019, S.1.33/19 was promulgated by the Minister of Finance and Economic Development. Thereafter the applicant applied for the registration of the award and this was granted through an order of the High Court dated 26 June 2019. A writ of the execution was issued on 10 July 2019 resulting in the judicial attachment of the first respondent’s immovable property known as Stand 654, Pomona Township, held under Deed of Grant No. 2884/10 (‘the property’). Subsequent to the registration of the award and the issuance of the writ of execution, the respondent paid the sum of RTGS 4,800,000 as full payment of the debt. Thereafter the Sheriff, the third respondent herein, wrote to the applicant, informing it that the debt had been discharged and that it was his/her intention to remove the property from judicial attachment.

**PROCEEDINGS BEFORE THE HIGH COURT**

(7) Irked by the above decision of the third respondent, the applicant approached the High Court seeking an order declaring that the judgment debt had not been extinguished given that, after registration of the award as an order of court, the amount had to be paid at the prevailing interbank rate of the day and not at the rate of one United States dollar to one RTGS dollar. It also sought to attack the decision of the third respondent to remove the property from judicial attachment and to treat the writ of execution as having been satisfied.

(8) The first respondent also filed an application under HC 5989/19 in which it sought a declaratur that the arbitral award at the centre of the two cases be declared executable in RTGS Dollars at the rate of one to one to the United States dollar in accordance with s 4(1)(d) of S.I.33/19. It sought a further declaration that the payment of RTGS 4,800,000 that it had made had fully and finally discharged its obligations in terms of the award. The two matters were consolidated for purpose of the hearing before the High Court. The issue that arose for determination by the High Court was whether there was full discharge of the debt and if so, whether the release of the property from attachment by the Sheriff of the High Court (the third respondent herein) was proper. In its determination, the Court found that the arbitral award of March 2015 was not a judgment debt as it was not a decision of a court. It reasoned that an arbitrator or an arbitral tribunal is not a court as defined in the Interpretation Act [Chapter 1:01]. The court therefore determined that, as of 22 February 2019, there was no judgment debt in existence and that the debt only came into existence upon the granting of the registration order by the High Court on 26 June 2019.

(9) The court further held that a judgment debt arises from the date of registration of the award as that is the date when the award becomes a decision of the court and becomes enforceable by way of the different methods of execution. The court consequently determined that the award, not having been a judgment debt in favour of the applicant prior to 22 February 2019, the provisions of s 4(1) (d) of S.I 33/19 and the subsequent legislation, namely, the Finance [No.2] Act of 2019, were not applicable.

(10) In light of that conclusion, the court further found that the application filed by the first respondent for a declaratory order that the amount due to the applicant be declared to be executable in RTGS Dollars at the rate of one to one to the United States dollar in accordance with s 4(1) (d) of S.I 33/19 was without merit and therefore dismissed it. The Court then granted the application by the applicant in its entirety. It also expressed its disquiet with what it considered to have been improper conduct on the part of the Sheriff in formulating, without reference to anyone else, the opinion that the debt had been satisfied and that the writ of execution was therefore no longer enforceable. The Court consequently ordered the Sheriff to pay the costs of suit on the higher scale and that the property in question be placed back under attachment.

(11) Aggrieved by the decision of the High Court, the first respondent appealed to the Supreme Court (“the court a quo”) against the whole judgment of the High Court. The third respondent also filed what he/she termed a notice of cross-appeal wherein he/she sought to attack the decision of the High Court for failing to take into consideration, in awarding punitive costs against him/her, the report he/she had filed with the High Court and for finding that the effective date of the arbitral award was the date on which it had been registered by the High Court.

(12) The sole issue for determination before the court a quo was whether the arbitral award in issue was subject to the provisions of S.I 33/19 in terms of which all assets and obligations expressed in United States dollars immediately before the effective date of 22 February 2019 were to be redeemed at the rate of one United States dollar to one RTGS dollar. I pause to note that the applicant’s cause of action was predicated on the fact of its registration of the award. Its claim to payment of the debt at the interbank rate was on account of its belief that the registration, having taken place in June 2019, had overtaken s 4 (1) (d) of S.I. 33/19 which had been promulgated on 22 February 2019 and that the registered award now constituted a new obligation to be discharged at the interbank rate applicable on the date of payment in terms of s 4 (1) (e) of the instrument. It was not its case that, as at the date the first respondent purported to pay the debt, S.I 33/19 was applicable and that the debt was to be discharged at the interbank rate of the day of payment as provided in s 4 (1) (e) of S. 1 33/19 and s 22 (1) (e) of the Finance [No. 2] Act, 2019.

(13) The court a quo found that the registration of an arbitral award does not create a judgment debt. It reasoned that the process of registration is merely a vehicle through which parties access the services of the Sheriff to execute arbitral awards. In other words, it is a procedure designed solely for execution. It is for this reason, the Court reasoned, that the court that is requested to register the award does not inquire into, or determine, the merits of the matter. It therefore determined that the arbitral award granted in 2015 was subject to the provisions of S.I 33/19, notwithstanding its late registration after the effective date of 22 February 2019. Consequently, it allowed the first respondents’ appeal, set aside the order of the High Court and substituted the order with one granting the first respondent’s application for a declaratur and dismissing the application filed by the applicant for a declaration that S.I 33/19 was not applicable and that the award was payable at the inter-bank rate.

(14) It is against this background that the applicant has now approached this court with an application for direct access. Its avowed desire is to have the above judgment of the Supreme Court set aside in its entirety.

THE APPLICANT’S CASE BEFORE THIS COURT

(15) The applicant, in its founding affidavit, has averred that its fundamental rights guaranteed in the Constitution of Zimbabwe have been violated by the “the effects” of the decision of the Supreme Court in a non-constitutional matter. It has stated that while the Supreme Court did not determine a constitutional issue, the Constitution of Zimbabwe, under s 85(1), permits any aggrieved person to vindicate his/her/its fundamental rights or freedoms, no matter the source of the infringement of the right or freedom concerned. For this reason, it has filed the present application in which it seeks access to this court in order to demonstrate that the decision of the court *a quo* in a non-constitutional matter resulted in a violation of its fundamental rights.

(16) The applicant has averred that the judgment of the Supreme Court infringed its fundamental right to the protection of the law and the right to a fair trial enshrined in ss 56 (1) and 69 (2) of the Constitution, respectively. It accepts that this Court has, in several decisions, stated that the test to be applied in determining whether a judgment of the Supreme Court in a non-constitutional matter infringes a fundamental right is whether or not the court failed to act in terms of the law governing appeal proceedings generally. It submits that this test is wrong and that the correct test is simply whether a decision of the Supreme Court violates a party’s rights. It has further submitted that the right in s 56(1) of the Constitution necessarily incorporates a straight forward right to the protection of the law, as did s 18 (1) of the repealed Constitution. It has urged this court to reconsider its interpretation of s 56(1) of the Constitution.

(17) The applicant states that even on the basis of the interpretation currently given to s 56(1) of the Constitution by this Court, the Supreme Court failed to afford the applicant the same benefits as it did the respondents. Firstly, the Court proceeded to hear an appeal filed by the Sheriff in the absence of leave having first been granted. Secondly, the Court baldly accepted the first respondent’s submissions but did not explain why it was in agreement with those submissions. Thirdly, the Court ignored an extant judgment of the High Court registering the arbitral award as an order of court. It has therefore submitted that the proceedings before the Supreme Court were not fair, thereby justifying its claim that s 56 (1) of the Constitution had been violated. The disregard of the extant order of the High Court registering the award also constituted an infringement of its rights in terms of s 69 (2) and (3) of the Constitution.

(18) In addition, the applicant further argues that the precedent set out in *Lytton Investments (Private) Limited v (1) Standard Chartered Bank Zimbabwe, Limited (2) The Attorney-General of Zimbabwe CCZ 11/18* should be re-considered by the court properly constituted. It states that the decision in *Lytton, supra*, was made by the Chief Justice on his own even though, contrary to s 166 (3)(b) of the Constitution, the application before him was not an interlocutory application. For that reason, the applicant argues that for the *ratio decidendi* in *Lytton* to be an authority in respect of applications for direct access seeking to set aside decisions of the Supreme Court in non-constitutional cases, it should be made by a properly-constituted court consisting of at least three judges of the court as provided in s 166 of the Constitution.

(19) The applicant has also taken the preliminary point that the first and second respondents’ notice of opposition was defective. It states that it had received information from the Registrar of Companies in both Estonia and Mauritius, where the first respondent is allegedly registered, that the first respondent had ceased to exist. It therefore averred that the first respondent has improperly continued to act as though it still exists when it no longer does so. Such conduct, so it has averred, is fraudulent and so is the purported meeting of the directors at which a resolution was apparently made authorising the deponent to the opposing affidavit to act on behalf of the company. It was therefore its submission that the notice of opposition is defective for that reason and that it should, consequently, be disregarded.

(20) At the hearing of the matter, Mr Madhuku, for the applicant, reiterated that the Supreme Court had disregarded an extant order of the High Court which had registered the arbitral award. He stated that the first respondent had approached the High Court with an application for a declaratur that S.I. 33/19 applied to the award whilst deliberately ignoring the judgment of the Court which had registered the arbitral award. Counsel averred that the Supreme Court ought, in these circumstances, to have related first to the extant judgment.

(21) Mr Madhuku further submitted that the application for a declaratur filed by the first respondent in the High Court was not a genuine application as it was a stratagem designed to subvert the order registering the arbitral award. He argued that the moment the Supreme Court decided that it was to set aside the decision of the High Court, it ought to have determined whether the declaratur sought by the first respondent was competent in the light of the registration of the award.

(22) Counsel further argued that the judgment of the Supreme Court was arbitrary as it did not give reasons for its conclusion. The court a quo did not address all the submissions made before it and merely stated that it accepted arguments without elaboration or giving any reasons.

(23) Counsel therefore submitted that the decision of the Supreme Court infringed the applicant’s rights enshrined in ss 69 (2) and 56 (1) of the Constitution of Zimbabwe,
 2013. He argued that there was discrimination as, unlike other matters that come before the Supreme Court, regard would have been had to the extant judgment of the High Court.

(24) As regards s 56 (1) of the Constitution of Zimbabwe, 2013, counsel urged the Court to revisit the interpretation of the section given in cases such as *Gonese v President of the Senate and Ors CCZ 2/23*. He argued that, unlike S 18 of the repealed Constitution of Zimbabwe, s 56 (1) of the current Constitution has been given a narrow interpretation and hence, *Gonese, supra*, was wrongly decided and should therefore be vacated.

**RESPONDENTS’ SUBMISSION BEFORE THIS COURT**

(25) The first and second respondents have contended that the application that the applicant seeks to file before this court, should access be granted, is a disguised appeal against the determination of the Supreme Court in a matter that did not raise any constitutional issues. They have further submitted that the applicant is impermissibly seeking direct access in order to argue that the Supreme Court was patently wrong and that its decision must, as a corollary, be set aside. Consequently, they submit that the application for direct access is inconsistent with the Constitution, the Supreme Court Act [*Chapter 7:13*] and the principle that there should be finality in litigation.

(26) Counsel for the respondents further submitted that the application for direct access is improper as it seeks to interrogate the correctness of the decision of the Court *a quo* which is incompatible with the jurisdictional limits of this Court. He argued that the intended application did not raise any constitutional issues which could be determined by this Court. Counsel further submitted that the applicant is in fact seeking an order declaring that the Supreme Court was wrong because, as consequential relief, it seeks, in the intended application, an order setting aside the decision of the Court.

(27) In response to the argument raised by the applicant that the Supreme Court’s decision was arbitrary as it did not give any reasons for its conclusion, counsel denied that this is what happened and submitted that, in any event, the Supreme Court can reject and accept any argument in the exercise of its discretion.

ISSUES ARISING FOR DETERMINATION

(28) Regard being had to the above averments and submissions by the parties, it seems to me that two issues arise for determination. The first is whether, as argued by the applicant, the first and second respondents’ notice of application is a nullity on account of the suggestion that the first respondent has ceased to exist and is no longer a legal entity. Expressed differently, the question is whether the authority given to the deponent of the opposing affidavit, Simbarashe Kadye, was validly given by a lawfully constituted entity. The second issue that arises is whether the application raises a constitutional issue and, if so, whether it is in the interests of justice that direct access to this court be granted.

WHETHER THE OPPOSING AFFIDAVIT IS VALID

(29) In its answering affidavit, the applicant has averred that the respondent’s notice of opposition is fatally defective on account of an irregular resolution claiming that the directors of the first respondent had met and authorised Simbarashe Kadye to represent the first respondent in these proceedings. It has averred that, according to information received from the companies’ registries in Estonia and Mauritius, where the first respondent is allegedly registered, the first respondent has ceased to exist as a company. This, the applicant states, suggests that the first respondent has continued to act as if it still exists when in fact that is no longer the case. The applicant has further suggested that WestProp Holdings, a company registered according to the laws of this country, might in fact be an *alter ego* of the first respondent. The applicant therefore states that the notice of opposition is a nullity on account of the fact that the first respondent no longer exists and consequently has no directors who could have given authority to Simbarashe Kadye to represent the company.

(30) The information the applicant relies upon consists of photocopies of documents allegedly availed by the companies registries of Estonia and Mauritius. The photocopies have not been certified as authentic copies of the originals. They are not accompanied by sworn statements from the two Registrars confirming the authenticity of their contents. In these circumstances this court cannot accept that these documents are admissible.

(31) They are not admissible because they constitute inadmissible hearsay. The applicant cannot swear positively to their contents – see r 16(3) of the Rules of this court. The position is now settled that, subject to s 27 of the Civil Evidence Act [*Chapter 8:10*], an applicant in motion proceedings cannot predicate his/her/its cause on hearsay. This is because, as the facts of this case show, the deponent to the affidavit, who is a director of the applicant, would not be competent, were he called to testify, to give *viva voce* testimony to the facts alleged.


(32) The names of the Registrars who purportedly compiled the information that is in the applicant’s possession are unknown. It is not known whether the information is, in fact, genuine. Neither Registrar has sworn to an affidavit identifying the documents and stating that the contents are correct. The evidence is clearly hearsay and cannot be admitted as it is likely to prejudice the first respondent – *Joshua John Chirambwe* v (1) *The President of the Republic of Zimbabwe and Four others CCZ 4/21*, paras 63-69.

(33) The preliminary point taken by the applicant on the validity of the notice of opposition must therefore fail.

**WHETHER IT IS IN THE INTERESTS OF JUSTICE THAT DIRECT ACCESS BE GRANTED**

(34) The considerations that come into play in an application for direct access are set out in r 21 (3) of the Rules, which reads as follows:

“(3) An application in terms of sub-rule (2) shall be filed with the Registrar and served on all parties with a direct or substantial interest in the relief claimed and shall set out-

(a) The grounds on which it is contended that it is in the interest of justice that an order for direct access be granted; and

(b) The nature of the relief sought and the grounds upon which such relief is based; and

(c) Whether the matter can be dealt with by the Court without the hearing of oral evidence or, if it cannot, how such evidence should be adduced and any conflict of facts resolved.”

(35) Direct access is a remedy that is granted only in exceptional circumstances where the requirements of r 21(3) are fully satisfied. It is mandatory for an applicant seeking direct access to this Court to demonstrate that it is in the interests of justice that such access be granted and the grounds upon which access should be granted.

(36) In terms of sub r 8 of r 21 of the Rules, in considering whether or not it is in the interest of justice for a matter to be brought directly to the Court, the Court or a judge may, in addition to any other relevant consideration, take into account factors such as the prospects of success if direct access is granted, whether the applicant has any other remedy available to him or her and whether there are disputes of fact in the matter. Though not directly relevant for present purposes, the Rules also envisage a consideration of other relevant matters that may have a bearing on the matter. In previously decided cases, these have been stated to include the importance of the matter and need for certainty in the law, whether the matter is urgent, whether the doctrines of ripeness, subsidiarity and constitutional avoidance apply (this is intertwined with the consideration of alternative remedies just referred to) and whether, in the particular circumstances of the case, it is desirable for this Court to sit both as a court of first and last instance, in other words, to hear the matter without the benefit of the views of other courts subordinate to it.

(37) In *Zimbabwe Development Party and Anor v The President and Ors* 2018 (1) ZLR 485 (CC), 492 F this Court accepted as the correct approach in applications of this nature one that accepts that all the relevant factors required to be taken into account must be available for consideration. The court or a judge must consider all the relevant factors in deciding whether the interests of justice would be served by an order granting direct access to the court.


(38) A further relevant consideration relates to the need for the intended application to raise a constitutional matter, for, in the absence of such a constitutional matter, the jurisdiction of the court cannot be triggered. In other words, in the absence of a constitutional matter, the question of the interests of justice would not arise. A related consideration is that a matter does not become a constitutional matter, and therefore fall within the jurisdiction of the court, merely because there is reference to a constitutional provision or an allegation of the violation of a constitutional right – Joseph Chani v Justice Hlekani Mwayera & Ors (1) ZLR 17. There ought to be a need in the matter for the court to engage in the interpretation, protection or enforcement of the Constitution.

(39) I am satisfied, on the facts on the case, that this application raises a constitutional matter and that it is properly before the Court. The question is whether, in coming to a decision, the Court a quo failed to act in accordance with the law governing the proceedings before it thereby violating the applicant’s fundamental rights. Whether or not the application eventually succeeds is irrelevant – Joseph Chani v Justice Mwayera, supra, at p21 A-G.

DECISIONS OF THE SUPREME COURT ON NON-CONSTITUTIONAL ISSUES ARE FINAL

(40) Pursuant to the need for finality in litigation, the law has provided that decisions of the Supreme Court on non-constitutional issues are final. More specifically, s 169 of the Constitution provides that the Supreme Court is the final court of appeal for Zimbabwe except in matters over which the Constitutional Court has jurisdiction. The Supreme Court Act [Chapter 7:13], in turn, provides, in s 26, that there shall be no appeal from any judgment or order of the Supreme Court. By command of these very clear provisions of the law, decisions of the Supreme Court on non-constitutional matters are final and cannot be subjected to further scrutiny to ascertain their correctness or wrongness.

(41) The position has now been accepted by this Court that the Constitution guarantees the right to protection under a system that is fair but not infallible. It is not against the wrongness of a decision that the Constitution guarantees protection. A wrong decision does not violate fundamental rights to the protection of the law guaranteed to a litigant. Once it is accepted that a decision of the Supreme Court was on a non-constitutional matter, then the question of the constitutionality of the decision falls outside the jurisdiction of the court – *Chirasha v National Foods* 2019 (3) ZRL 400, 405 F-G.

(42) This court has further stressed that a final decision of the Supreme Court applies to all litigants equally, be they winners or losers in the litigation process. Once the court gives a decision on a non-constitutional matter, that decision cannot be said to be wrong and no inquiry into its legal effect can arise – *Lytton, supra*, p 23. Even an apparently incorrect determination of facts or erroneous application of a legal test to those facts does not amount to a constitutional issue- *General Council of the Bar of South Africa v Jiba* and *Two Others* CCT 192/18 and *Feathers Mukondo v the State CCZ* 2/19. A misinterpretation of the law by the Court does not give rise to a constitutional issue justifying direct access – *Vongai Chiwaridzo v TM Supermarkets (Private) Limited & Four Others* CCZ 19/20. The decision of the Supreme Court would be correct because it is final and not final because it is correct. The law does not protect litigants against wrong decisions but rather the fairness of the proceedings. In the absence of a higher court saying so, the decision of the Supreme Court on a non-constitutional matter cannot be said to be wrong – *Mowoyounotsva v ZINWA CCZ 7/20*. At law the Constitution does not protect litigants against decisions they perceive to be wrong and no judicial authority can pronounce on the correctness or otherwise of decisions of the Supreme Court.

**AN AGGRIEVED PERSON CAN, HOWEVER, IMPUGN THE PROCESS**

(43) It is now the settled position in this jurisdiction that any conduct, including a decision of the Supreme Court, which has the effect of infringing a fundamental right or freedom enshrined in [Chapter 4] of the Constitution, would be inconsistent with the Constitution and therefore invalid. S 85 of the Constitution therefore entitles any person who alleges an infringement of a fundamental right or freedom which adversely effects his or her interest or public interest, the right to approach the court for relief. An aggrieved party to a non-constitutional matter may therefore approach this Court alleging an infringement of his or her fundamental right or freedom and move the court for appropriate relief- *Lytton, supra*, p 11.

(44) In *Lytton, supra*, this Court has stated as follows: The Supreme Court has the obligation to protect fundamental rights and not to violate them when performing its judicial functions in cases involving non-constitutional issues. A party to a matter involving a non-constitutional matter may approach this Court alleging that the decision of the Supreme Court in those proceedings has infringed his or her fundamental right or freedoms. Such an allegation raises a constitutional matter falling within the original jurisdiction of the Court. The principle of finality of Supreme Court decisions does not therefore protect a decision of the Supreme Court from constitutional review.

(45) The above remarks require further elaboration. Whilst an aggrieved party to non-constitutional litigation has the right to approach this Court alleging that a decision of the Supreme Court has infringed a fundamental right, the applicant must show in his or her or its application that there is a likelihood that this Court would find that the decision of the court infringed his/her/its right to judicial protection. He or she or it must show that the Supreme Court infringed his or her or its right to judicial protection in failing to act in accordance with the requirements of the law governing proceedings or prescribing the rights and obligations subject to determination. In *Feathers Mukondo, supra*, as well as *Lytton, supra*, the test was stated to be whether the violation was as a result of failure by the subordinate court to act in accordance with the law governing the proceedings concerned leading to an arbitrary conclusion. That failure to act in accordance with law must be shown to have disabled the Supreme Court from making a decision on a non-constitutional issue. There must, therefore, be proof of the failure to comply with the law and the failure must be shown to have produced an arbitrary decision. That is the test that an aggrieved party must satisfy. The test is not whether substantively or procedurally the decision of the Supreme Court was correct.

(46) But what does this test mean exactly? Is it every aberration, perceived or otherwise, that entitles a litigant to institute a s 85 (1) application? In *Lytton’s case, supra*, an example of such a failure by the Supreme Court is given. The example is this. The Supreme Court decides not to hear one party’s legal practitioner principally on account of his race. Thereafter, in the absence of that legal practitioner, it renders a decision. In such a case, the decision would not be a result of a lawful and objective assessment of the facts in issue. The ultimate decision would flow directly from the violation of a party’s fundamental right not to be discriminated against or to a fair trial. Further examples that come to mind would include situations such as where the court unduly refuses a litigant the legal right to be represented by a lawyer of his/her choice or where a party is prevented from making submissions in support of his case. Another example would be one where it comes to the attention of a litigant that the Court had received a bribe from the other party or a member of the Court was biased. Or where a Court fails to determine an issue raised by a party that is potentially dispositive of the matter before the Court. In all these instances, the decision that follows can be impugned on the basis that it violated certain fundamental rights.

(47) It seems to me, therefore, that it is the propriety of the process leading to the decision rather than the correctness of the decision itself which would entitle a litigant to approach this court in terms of s 85 (1) of the Constitution. Bearing in mind that a decision of the Supreme Court on a non-constitutional matter is final and binding, it is impermissible for this Court to arrogate to itself the power to sit as an appeal court over decisions of the Court. We must, as a court, resist that temptation. Substantive or procedural incorrectness of final judgments by the Supreme Court is not what the test envisions. There ought to have been some other conduct on the part of the Court that would have resulted in the violation of a litigant’s fundamental rights. That conduct must have preceded the decision sought to be impugned. In other words that conduct must have tainted the ultimate decision of the Court.

(48) It so happens that this Court sometimes comes across instances where the decision of the Supreme Court may appear irregular. Because the decision is final, this Court would have no jurisdiction to inquire into its correctness. This is a predicament that has been experienced by the Constitutional Court of South Africa. The finality of Supreme Court decisions in non-constitutional matters was observed to result in a fragmentation of the legal system where the influence of the Constitutional Court was limited, even in cases of significant public interest that did not strictly involve constitutional questions. Given the growing complexities of modern legal disputes, which often straddle both constitutional and non-constitutional matters and, bearing in mind that all issues, including the interpretation and application of legislation and the development and application of the common law ultimately implicate constitutional issues, it became necessary to change the law. This was done through the 17th Constitutional Amendment (2013) which now gives the Constitutional Court the jurisdiction to decide constitutional matters and any other matter, where the Court grants leave to appeal on the grounds that it raises an arguable point of law of general public importance which ought to be decided by the Court. In my view, such a development would be very beneficial to the development of jurisprudence in this country and would therefore recommend that consideration be given to a similar amendment to our Constitution.


(49) The appeal before the Supreme Court was against the judgment of the High Court, handed down on 9 May 2023. As already noted, that judgment had done two things. Firstly, it had dismissed the first respondent’s quest for a declarator that it had settled its indebtedness once it had paid the sum of ZWL 4,800,000 to satisfy the arbitral award granted against it in the sum of US $4,800,000. In that application the first respondent had averred that, pursuant to s 4 (1) of S.1 33/19, the amount denominated in United States dollars was now deemed to have a value in RTGS dollar at the rate of one RTGS dollar to one United States Dollar. In the second instance, the High Court had allowed with costs an application by the applicant in which it had sought (a) an order setting aside the decision of the Sheriff to remove Stand 654 Pomona Township from judicial attachment (b) a further order re-instating the judicial attachment (c) an order cancelling any transfers effected by the Sheriff pursuant to his earlier decision to remove the property from attachment.

(50) The issue before the Supreme Court was one of law. It was whether the first respondent’s obligation to pay the applicant first arose in March 2015 when the award was made or whether such obligation only arose on registration of the award in June 2019. That issue had arisen pursuant to the promulgation of S.1 33/19, followed by the Finance (No:2) Act 7/2019, both of which had provided that, for accounting and other purposes, including the discharge of financial and contractual obligations, all assets and liabilities that were, immediately before the effective date, namely 22 February 2019, valued in United States Dollars (other than those referred to in s 44 (C) (2) of the Act) were to be deemed to be values in RTGS dollars at the rate of one-to-one to the United States dollar. It had been the applicant’s contention before the High Court that the debt was to be discharged at the interbank rate following the registration of the arbitral award in June 2019 since S.I. 33/19 was not applicable once an order was made by the court registering the award.

(51) The Supreme Court heard submissions from both parties. In particular, the Court had regard to case-law authority cited by both parties. The only issue before it was whether, notwithstanding its registration as an order of the High Court in June 2019, the award was affected by S.I. 33/19. The Court concluded that the registration of an award does not change the status of the award. It further held that the registration of an award is simply for purposes of execution. It therefore determined that the rights and obligations of the parties had been determined in 2015 when the arbitral award was issued and that the High Court had therefore misdirected itself in treating the order for registration of the award as a novation of the debt, giving rise to a judgment debt. In the event, it found that the provisions of s 1. 33/19 were applicable. Consequently, the court allowed the appeal by the first respondent, set aside the judgment of the High Court and substituted it with an order declaring that the first respondent’s liability had arisen from the arbitral award made in 2015 and that such liability was executable in the RTGS dollar at the rate of one to one against the United States dollar as provided in S. 1. 33/19. It simultaneously substituted an order dismissing the applicant’s application with costs. I stress here, as I have done before, that the applicant’s cause of action was predicated on the registration of the award and not on the broader implications of both S.1 33/19 and the Finance [No. 2] Act permitting the application of the interbank rate after the first effective date. In this regard attention should be drawn to the recent judgement of this Court in *Unifreight v Mashinya* CCZ 13/24 on the rate of exchange applicable after 22 February 2019.

(52) The above disposition by the Supreme Court was on a non – Constitutional matter. That decision was entirely consistent with earlier Supreme Court decisions in cases such as *Zambezi Gas Zimbabwe (Private) Limited v (1) N. R. Barber (Private) Limited* (2) *The Sheriff for Zimbabwe* SC 3/20; (1) *Ingalulu Investments (Private) Limited* (2) *Mark Masinyazana Mbayiwa v* (1) *National Railways of Zimbabwe* (2) *Moffat Banda* SC 42/22 and *Regis Magauzi v* (1) *Francis Jekera* (2) *Sheriff for Zimbabwe* N.O. SC 54/22. In *Zambezi Gas, supra*, the Supreme Court stated at p 9 that:

> “what brings the asset or liability within the provisions of the statute is the fact that its value was expressed in United States dollars immediately before the effective date and did not fall within the class of assets and liabilities referred to in s 44c of the Reserve Bank of Zimbabwe Act …”

In any event, in terms of the law, that decision was final and no issues regarding its correctness could properly arise. In this application, however, the applicant alleges that its fundamental rights enshrined in ss 56 (1) and 69 (2) and (3) of the Constitution have been infringed by the above decision of the Supreme Court.

**THE BASIS OF THE APPLICATION**

(53) The applicant has submitted that, quite apart from its emphasis on equal protection and benefit of the law, S 56 (1) necessarily incorporates a straight forward right to the general protection of the law previously provided in the repealed Constitution. The applicant submits that the various judgments of this Court that have held that s 56 (1) of the current Constitution does not enshrine a straight forward right to the general protection of the law are wrong and must be revisited because s 18 (1) of the repealed Constitution could not just have disappeared from the law of the country.

(54) It submits that if this contention is accepted, then its further submission is that a decision of the Supreme Court can be wrong in its final determination of a non-constitutional matter. Therefore, where the court makes a “patently wrong decision”, the right in s 56 (1) is infringed.

(55) It further argues that even on the basis of the interpretation accorded to s 56 (1) by this court, it has received unequal treatment in the sense that a valid order of the High Court, which remains extant, has been ignored by the Supreme Court in its determination. Further, it contends that the Sheriff’s appeal was heard without leave having first been applied for and granted and despite the fact that the only issue raised by the Sheriff was one of costs. Lastly, as noted, it further submitted that the Supreme Court did not fully articulate why it was agreeing with the first respondent’s submission and consequently the judgment it issued was arbitrary.

(56) As regards its contention that its rights of access to the court enshrined in s 69 (3) has been violated, it submits that the decision in Lytton, supra, authored by the Chief Justice on his own and now regarded as the locus classicus on the subject, was reached in breach of s 166 (3) of the Constitution. Section 166 (3) makes it clear that a single judge may hear an interlocutory matter on his own. The application for direct access in Lytton was not interlocutory and should therefore have been heard by at least three judges of the court. Its argument is that the judgment in Lytton was not determined in terms of the law and that it should not therefore have been allowed to create legal precedent. For that judgment to be regarded as an authority on applications for direct access against judgments of the Supreme Court on non-constitutional cases, so it was argued, the ratio in that case should be re-considered and approved by a properly-constituted court. Therefore, so I understood the applicant to be saying, direct access should be granted so that the test can be properly stated by a properly constituted bench as required by the constitution.

WHETHER THE SUPREME COURT DECISION HAS VIOLATED THE APPLICANT’S RIGHTS

(57) The applicant, in this application, has sought to persuade this Court to grant leave so that the correctness or otherwise of the decisions of this Court in cases such as Nkomo v Minister of Local Government Rural and Urban Development 2016 (1) ZLR 113 (CC), 118-9 and Marx Mupungu v Minister of Justice, legal and Parliamentary Affairs & Ors CCZ 7/21 can be reconsidered. Other than stating that the right to the general protection of the law that was enshrined in the repealed Lancaster House Constitution could not just have disappeared, the applicant has not provided any other basis upon which the full Court could properly find such an interpretation persuasive.

(58) It is correct that in Gonese v President of the Senate & Two Others Hlatshwayo JCC remarked that it appeared:

“strange that the current Constitution would broaden the specific anti-discrimination clause (ss 3), back it up with a general anti-discrimination clause (ss 1), and discard the general protection and benefit of the law!”


In my view the above remarks, clearly *obiter*, were merely intended to trigger further introspection into the fate of what was once an important right to litigants. Despite the observations made in that judgment, regard being had to the wording in s 56 of the Constitution, there is no basis upon which this court, sitting as a full Court, could find that a general right to the protection of the law - similar to the one under s 18 (1) of the repealed Constitution - still subsists under s 56 (1). Both in *Gonese, supra*, at para 84 and in *Marx Mupungu, supra*, at pp 53-54 the full bench of this Court once again emphasized that s 56 (1) is a non-discrimination provision and that it has little to do with the general protection of the law that was provided for in s 18 (1) of the repealed Constitution.

(59) In the circumstances, I remain unconvinced that any identifiable legal basis has been established for this Court to reconsider its interpretation of s 56(1) of the constitution. That being the position, the applicant’s related contention that “any wrong decision” of the Supreme Court should give rise to an application under s 85 (1) alleging a violation of rights under s 56 (1) is, therefore, not tenable. This is because in terms of current law, what is perceived to be a “wrong” decision of the Supreme Court does not give rise to a constitutional issue. In any event the submission that a decision of the Supreme Court can be wrong fails to take into account s 169 of the Constitution which categorically states that a decision of that Court is final and cannot therefore be re-opened on the basis that it is wrong.

(60) The applicant’s case is also predicated on the suggestion that, by disregarding an extant order of the High Court, the Supreme Court also violated its rights in terms of the same section. There can be little doubt that this contention is without substance. In the first instance, it is clear that what was in issue before the Supreme court was whether the arbitral award granted in 2015 but registered as an order of the High Court in June 2019 was affected by the provisions of s 4 (1) of S.1. 33/19. That was the sole issue before the Court. The Court found that the award was a liability affected by that statutory instrument and that the award, as at 22 February 2019, was therefore deemed to be valued in RTGS at the rate of one to-one with the United States dollar. That judgment was concordant with previous decisions of the Court on the issue.

(61) Further, it is clear from its judgment that the Court a quo was quite aware of the existence of the order registering the arbitral award. But the pertinent issue before the court was not so much what the implications of the registration of the award were but rather whether the arbitral award itself, before its registration, had been affected by the provisions of S.1 33/19. Perhaps, having found the award to have been affected by S1 33/19, the Court should have gone further and exercised its review powers under s 25 of the Act on account of the fact that the registration had ignored the profound implications of S.1. 33/19 on the award. The award should have been registered subject to S.1 33/19. The claim that the court ignored the judgment is factually inaccurate.

(62) Further it is suggested that the Court improperly gave audience to the Sheriff. The record reveals that the Sheriff filed a cross appeal in terms of r 45 of the Supreme Court Rules, 2018. Therein the Sheriff raised three main grounds of appeal. The first was that the High Court had erred in failing to consider his/her report before making the determination that the Sheriff should pay the costs of suit on the higher scale. The second was that the High Court had erred in finding that the effective date of an arbitral award was the date on which it is registered. The third was that, as a result of such misdirection, the court had erred in failing to take into account the provisions of S.1 33/2019 in coming to its determination. Based on these grounds, the Sheriff had sought an order setting aside the judgment of the High Court and substituting it with a declarator that s 4 (1) of S. 1 33/19 was applicable to the arbitral award granted on 19 March 2015. In his heads of argument, the Sheriff made submissions on all three issues. The judgment of the Supreme Court also captures a number of the issues raised by the applicant against the Sheriff. The order of costs against the Sheriff was set aside *a quo* on the basis that the Sheriff was not a litigant but an officer of court and that the report he/she had submitted to the Court, at its request, should not have been ignored by the High Court. No issue was raised that the Sheriff had not sought leave to appeal against the order of costs. The point is only raised for the first time in this application.

(63) Assuming, *arguendo*, that the Sheriff would have required such leave, the absence of such leave would not, at the end of the day, make any real difference. This is because the same issues relating to the status of the award were also raised by the first respondent in its grounds of appeal to the Supreme Court. There is no suggestion that the first respondent was not properly before the Court. On the question of costs, the Court clearly had a discretion on what order to make in disposing of the matter. Its decision on costs cannot be said to have violated any fundamental rights.
 (64) For the above reasons, I am unable to find that the applicant has proved facts to show that its rights in terms of s 56 (1) of the Constitution have been violated.

WHETHER THE DECISION VIOLATED RIGHTS UNDER S 69 (3)

(65) I understand the applicant’s submission in this regard to be that the test set out in Lytton, supra, was not properly or lawfully made but should be regarded as merely persuasive on account of the fact that only one judge determined that matter. The contention appears to be that because Lytton was determined by one judge in chambers, it cannot be authority for the test that it enunciated in determining whether nor a decision of the Supreme Court can be impugned on the basis that it has violated a fundamental right.

(66) I do not believe the above proposition, strange as it seems coming from senior counsel, should detain this court. The decision in Lytton has been accepted and followed in various other decisions of this court-see for example Tendai Bonde v National Foods & Anor CCZ 4/24, Ariston Management Services Limited v (1) Econet Wireless Zimbabwe Limited (2) Peter Carnegie Lloyd N.O. CCZ 08/24 and Zimbabwe Consolidated Diamond Company (Pvt) Ltd v Adelcraft Investments (Pvt) Ltd CCZ 2/24. The fact that a single judge came up with the formulation of the test instead of the three judges does not, in the circumstances, give rise to a constitutional issue in this matter.

NO VIOLATION OF RIGHTS SHOWN

(67) Having considered the facts of this matter as whole, it appears to me that no violation of the applicant’s rights has been demonstrated. What is clear is that the applicant is unhappy with the determination made by the Court *a quo* that, notwithstanding its registration, the provisions of s 4 (1) of S.1 33/19 were nevertheless applicable to the arbitral award. It is for this reason that, in its founding affidavit, the applicant sought to urge this Court to find that the decision of the Supreme Court was wrong and impeachable under what it argued was a right to the general protection of the law provided for in s 56 (1) of the Constitution.

(68) There can be little doubt that this application is nothing more than a disguised appeal against the decision of the Supreme Court. That is why the applicant went to great lengths to persuade this Court to grant direct access on the basis that a wrong decision of Supreme Court should be regarded as a violation of its rights under s 56 (1). As counsel for the first and second respondents has further pointed out, the averment by the applicant in its founding affidavit that its rights have been violated “by the effects of the decision of the Supreme Court” is telling. It suggests dissatisfaction with the final determination of the Supreme Court.

(69) As stressed earlier in this judgment, the position is now settled that what an aggrieved person perceives to be an incorrect determination of facts does not amount to a constitutional issue – *Chiite & ors v The Trustees of the Leonard Choshwe Zimbabwe CCZ 10/17; General Council For the Bar of S. Africa v Jiba 2019 ZACC 23*. Even disagreement with the Supreme Court on the assessment of the facts or application of the law does not give rise to a constitutional issue. The Constitution does not protect litigants against decisions they think are wrong. It is the fairness of the court proceedings to which litigants are entitled. It is not suggested anywhere in the papers that the Supreme Court did not deal with the matter in accordance with the law governing the hearing and determination of appeals.

(70) The relief that the applicant seeks in the event that direct access is granted is the setting aside of the Supreme Court decision. The applicant seeks nothing else, not even a remittal of the matter for a trial *de novo* before a differently-constituted Supreme Court bench. This is an untenable and strange request. With the Supreme Court decision out of the way, the judgment of the High Court of Zimbabwe and the appeals noted against that judgment would remain *in limbo*. The result would be that there would be no final determination of the dispute between the parties.

DISPOSITION

(71) The decision made by the Supreme Court was on a non-constitutional issue. It has not been demonstrated that the Court, in coming up with that decision, violated the applicants rights under s 56 (1) and 69 (2) of the Constitution. No demonstrable conduct on the part of the Court has been shown to have disabled it from determining the appeal matter that was before it in accordance with the requirements of the law.

(72) Accordingly, the intended application does not enjoy any prospects of success should leave for direct access be granted. It would, therefore, not be in the interests of justice to grant the applicant leave for direct access to this Court.


(73) As noted earlier in this judgment, the time may be ripe for some consideration to be given to the amendment of the Constitution to empower this Court to decide, in addition to constitutional matters, any other matter where the Court grants leave to appeal on the basis that the matter raises an arguable point of law of general public importance which requires consideration by the Court. This would enable this Court to address all critical issues that affect the public at large, thereby enhancing its oversight of both constitutional and non-constitutional matters in a way that serves the broader goals of justice.

(74) On the question of costs, I am of the considered view that there is no basis for an award of costs in this matter, notwithstanding the prayer by the respondents for such costs.

(75) In the result, the following order is made:

The application be is hereby dismissed with no order as to costs.

Makarau JCC : I Agree

Gowora JCC : I Agree

Mutumbwa, Mugabe and Partners – Applicant’s legal practitioners

Chinawa Law Chambers – First and Second respondents’ legal practitioners
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