Ignatious Masamba v City of Harare Treasury Credit Control (2) Secretary Judicial Service Commission

### Preamble
Judgment No. CCZ 25/17
1
Const. No. CCZ 56/16
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DISTRIBUTABLE 	(20)

IGNATIOUS     MASAMBA

v

CITY     OF     HARARE     TREASURY     CREDIT     CONTROL     (2)    SECRETARY     JUDICIAL    SERVICE     COMMISSION

CONSTITUTIONAL COURT OF ZIMBABWE

BHUNU JCC HARARE: SEPTEMBER 23, 2016 & NOVEMBER 14, 2016 & NOVEMBER 24, 2017

Applicant in person

C. Kwaramba, for the respondent

IN CHAMBERS

BHUNU JCC:	This is an application for condonation of late noting of an appeal in terms of r 35 of the Constitutional Court Rules 2016. The application is rather convoluted, disjointed and incoherent. It resembles a charade for an attempt by a litigious self-actor to file a Constitutional Chamber Application without any appreciation of the law, rules and procedures of this Court.

The applicant however, professes to be conversant with the law, because he is the holder of a Chartered Institute of Management Accountants (CIMA) qualification under which he claims to have studied some law. The first respondent is the City of Harare which has been sued relentlessly by the applicant with no end in sight.

The second respondent is the Secretary of the Judicial Service Commission a statutory body responsible for the Employment and Welfare of Judges. She appears to have been sued solely for the alleged sins of judges who dismissed his claims. She has not bothered to oppose the applicant’s claim purportedly opting to abide by the decision of this Court.

The first respondent was desirous to oppose the application but was time barred. As a result, it was unable to make any submissions on the merits. Counsel for the first respondent Mr Kwaramba opted to sit-in for an observation brief.

That being the case, I shall proceed to treat this matter as an unopposed application. Despite that finding, the applicant still bears the onus of proving that the application is properly before this Court and if so, that he has a reasonable explanation for delay and has reasonable prospects of success on appeal.

The brief background to this Chamber Application is that the applicant’s sister Tendai Susan Masamba is the owner of a certain piece of property known as 4 Resdale, Selous Avenue Harare. On 14 April 2011 she granted him a general power of attorney to manage the property in her place and stead as her agent. Since then no one has ever rested as the applicant has been relentlessly suing persons right, left and center without success and with no end in sight. As at the time of judgment in the court a quo he had instituted no less than 26 lawsuits on the strength of the power of attorney granted to him by his sister in respect of that same property.

On 27 September 2013 his principal granted him a special power of attorney purportedly authorizing him to conduct litigation on her behalf pertaining to water, electricity and rent issues in respect of that property. In Tendai S. Masamba v Zimbabwe Electricity Transmission and Distribution Company (Pvt) Ltd HH-411-15, the court a quo however, ruled that the power of attorney did not authorize him to institute and prosecute litigation on behalf of his principal. Despite that ruling which is still extant, the applicant has continued to relentlessly sue persons on the strength of that discredited power of attorney. Although he claims to act on behalf of his sister in three instances out of 26 suits he sues in his own name.

Fed up by the applicant’s unending suits, the first applicant applied to the court a quo for a decree of perpetual silence. On 1 June 2016 MAFUSIRE J granted the application for the decree of perpetual silence in the following terms:

“In the premises I issue the following order:

A decree of perpetual silence is hereby issued against Ignatius Masamba in respect of his agency, management, occupation or interest of whatever kind in the property, known as Number. 4 Residell Court, 56 Selous Avenue, Harare, more particularly that:

Ignatius Masamba, either personal (sic), or through, or on behalf of any other person, is hereby interdicted and restrained from instituting or prosecuting in this court any action, application, suit or proceedings of whatever nature in connection with whatever interest he may have in the property aforesaid without the leave of this court first being applied for and obtained, and in which application he shall demonstrate sufficient mental capacity to do so.

The Registrar of this court shall not issue out any process commencing action, or set down any matter already filed or commenced by for, on behalf of, or at the behest of, Ignatius Masamba in connection with that property, without the leave of this court first being applied for and obtained.

Any application for the leave of this court as directed above shall be made on notice to all interested persons.

The costs of this application shall be paid by Ignatius Masamba on a legal practitioner and client scale.”

Aggrieved by the above order the applicant is desirous to approach the Constitutional Court for relief but apparently does not know how to get there.

In the court a quo no constitutional issue was raised and the court did not make any constitutional determination. Considering that the applicant’s grievance arises from a determination of the court a quo, his remedy resides in the Supreme Court on appeal. He cannot appeal to the Constitutional Court when the court a quo made no determination on any constitutional issue.

The applicant confuses the matter further when he avers in his founding affidavit that he is seeking direct access to the Constitutional Court in terms of s 85. The affidavit is confused and incoherent. It reads:

“I Ignatius Masamba, do hereby take oath and state as follows:

I am a citizen of Zimbabwe whose fundamental right has been violated by reason of a decree or order of perpetual silence in case No. HC 9428/14 handed down at the High Court of Zimbabwe, Harare, by an Hon. Justice Mafusire in breach of s 85 of the Constitution of Zimbabwe which is about the, ‘enforcement of fundamental human rights and freedoms.’

More so the decree’ detailed ruling has ambiguities, patent errors and omissions and preponderantly the cited record numbers in the list of 26 cases are not res judicata which the decree is pivoted on.

In the same breath, the breach of s 85 of the Constitution of Zimbabwe simultaneously generates the need to proficiently advert to other sections of the Constitution of Zimbabwe for an embacive(sic) remedial activity.

Arguably the other areas of the Constitution of Zimbabwe call upon to use to bring about better, “Hygiene or bring about a better world in Zimbabwe in a chain reaction effect caused by breaching s 85(1) are: (i) Section 9 “good governance”, (ii) Section 97, “removal of President”, and (iii) section 187 removal of judges from office.

The court and other parties to this controversy are presumed competent to know which parts of the specified of the constitution have been breached in advance. There is a presumed staple ability which must not fall short in the abilities to read and understand the Constitution by the first and second respondents and the court.

…”

The applicant rambles on and on up to para 150 in a mass of unintelligible confused and irrelevant facts. Paragraph 1.1 of MAFUSIRE J’s order questions the applicant’s sanity and mental capacity to comprehend and mount a valid legal suit hence the need to first demonstrate his mental capacity to the court before being allowed to institute any further legal proceedings. I share that view from the applicant’s submissions in chambers before me on 14 November 2016. This is what he had to say:

“At this juncture I am appearing on my own behalf because I am the victim of the decree of perpetual silence. I have a power of attorney. The judgment I want to appeal against is at page 69 to 77. It is dated June 2016.  The length of delay is about two and a half months.  It was because I was not aware that my constitutional rights were being infringed until a journalist phoned me for an interview.

Any order can be rescinded on account of patent errors, ambiguities and omissions in terms of r 449. I was not allowed to make the application in terms of r 449 (b) to correct a lot of ambiguities, patent errors and omissions.

AMBIGUITIES – 26 cases cited were not res judicata.  The cases do not involve the same issues and parties.  Each case had its own merits.

My problems are political.  The High Court is breaching fundamental tenants (sic) of justice.  We expect them to act fairly.  I am a citizen of this country.

PROSPECTS OF SUCCESS – There is a case HC 99/16 in which I am asking Parliament to ask the UN to supervise elections to see if there is neutrality.  Close to 98% of the electorate is unemployed when it should be about one and a 1 ½ %.  Unemployment is arising because of incompetence and rigging.  People of competent age are failing to get employment.  There is massive deindustrialization.

Zimbabweans are being ill-treated wherever they go.  Fifteen billion dollars of diamonds disappeared. Air Zimbabwe, ZUPCO, ZESA, there is massive corruption.  And somehow I am suffering. And I am a victim of someone’s mismanagement.

We are living in an era of cellular phone capability.  Like my siblings is watching me in court now.  It seems ZANU people are planting people in my path, imposing tenants with instruction to pay or not to pay. It seems the tenants are being instructed not to pay.

Even my son was denied his results. I have applied for relief to have the decree of JUSTICE MAFUSURE to be set aside then the court will determine the controversy.”

Despite the incoherent rambling by the applicant, it is clear that no constitutional issue arises both from the applicant’s papers and his viva voce submissions in chambers.  The applicant’s grievance stems from the correctness or otherwise of the judgment he intends to appeal against. No constitutional issue having arisen or determined by the court a quo, it follows that no appeal can lie either to the Supreme Court or the Constitutional Court on an issue that never arose and was never determined by the lower court.

That analysis of the law, is in line with the observations of ZIYAMBI JA in Nyamande & Another v Zuva Petroleum CCZ 8/15 where the learned Judge of Appeal remarked that:

“… a right of appeal could only arise where the Supreme Court makes a decision on a constitutional matter.  Since no constitutional matter was determined by the Supreme Court, no appeal can lie against its decision.”

The same considerations apply to any court which has not made a decision on any constitutional matter.  No appeal can lie to any higher court on a constitutional issue which has not been raised and determined by a lower court.  For that reason, I come to the conclusion that this matter is not properly before me sitting in chambers as a Constitutional Court Judge. This is because the applicant has not established that there is a determination on a constitutional matter made by the High Court and against which he wishes to appeal to the Constitutional Court. The mere fact that the applicant is aggrieved by the judgment of the court a quo does not convert into a constitutional issue appealable to the Constitutional Court, let alone granting him direct access to that Court in terms of s 85 of the Constitution.

This conclusion is fatal to the applicant’s application such that it disposes of all the other remaining issues. As the application was not opposed, there will be no order as to costs.

It is accordingly ordered that the application be and is hereby dismissed with no order as to costs.

Mbidzo, Muchadehama & Makoni, 1st respondent’s legal practitioners.

No appearance for the 2nd Respondent.