Joseph Mwoyountsvava v Zimbabwe National Water Authority

### Preamble
Judgment No. CCZ 17/20
1
Constitutional Application No. CCZ 9/20
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REPORTABLE:    (22)

JOSEPH     MWOYOUNOTSVA

v

ZIMBABWE     NATIONAL     WATER     AUTHORITY

CONSTITUTIONAL COURT OF ZIMBABWE

GARWE AJCC, MAKARAU AJCC & PATEL AJCC

HARARE, OCTOBER 5, 2020 & NOVEMBER 23, 2020

Applicant in person

J. Dondo, for the respondent

GARWE AJCC:

[1]	This is an application for direct access to the Constitutional Court (“the Court”) made in terms of s 167(5)(a) of the Constitution of Zimbabwe Amendment (No. 20) Act 2013 (“the Constitution”), as read with r 21(2) of the Constitutional Court Rules S.I. 61/2016 (“the Rules”). The allegation is that the conduct of the Supreme Court violated the applicant`s fundamental rights as enshrined in s 56(1) of the Constitution.

FACTUAL BACKGROUND

[2]	The applicant was employed by the respondent as an accountant. On 5 January 2011 he appeared before a disciplinary hearing committee facing two charges of misconduct. The first was that he had committed an act or conduct inconsistent with the terms of his contract of employment as provided in s 4 (a) of the Labour (National Employment Code of Conduct) Regulations, 2006 (the Code) and the second being theft or fraud in violation of s 4(d) of the same Code.

[3]	It was alleged that, sometime in 2009, the appellant went to his rural home while driving a vehicle belonging to the respondent. It was common cause that, as part of his conditions of employment, the applicant had signed a document which, inter alia, prohibited him from tampering with or attempting to service a vehicle that would have been involved in an accident. The document made it clear that such a vehicle could not be repaired without the prior consent of management.

[4]	Whilst being towed, the vehicle was involved in an accident. It was alleged that on his return, without the authority of the respondent and contrary to his conditions of employment, the applicant had given instructions to the employees assisting him to take the vehicle to Surprise Panel Beaters for repairs.

[5]	At the conclusion of the disciplinary process the applicant was dismissed from employment. All internal appeals were dismissed. The matter ended up before an arbitrator whose terms of reference were to “look into the substantive fairness of the dismissal of the respondent from the appellant’s employ.” The arbitrator proceeded to determine the matter as an appeal. He found, inter alia and without hearing evidence, that the applicant, as part of management, had the discretion to make decisions that would help the respondent in its operations. He also found that the second charge had not been proved.   Consequently he upheld the appeal, set aside the findings made by the domestic tribunals and ordered the reinstatement of the applicant.

[6]	The respondent was aggrieved by the award and appealed to the Labour Court on the basis that the arbitrator had no jurisdiction to set aside the factual findings of the lower tribunals. The appeal was dismissed. The respondent consequently appealed that decision to the Supreme Court.

PROCEEDINGS BEFORE THE SUPREME COURT

[7]	In its judgment, the court was of the view that the main issue for determination was whether the Labour Court had been correct in law in upholding the award of the arbitrator and, in particular, in quashing the findings of the disciplinary committee as confirmed by the appeals officer.  It considered that a resolution of that issue depended on a determination as to whether or not the arbitrator, sitting as an appellate tribunal, could set aside findings of fact made by the lower tribunal.

[8]	It found that the arbitrator, having sat as an appellate tribunal, could not set aside findings of fact made by the disciplinary tribunal unless such findings were so irrational that no reasonable tribunal applying its mind to the same facts would have arrived at the conclusion that it did.  There had been no such finding by the arbitrator or the Labour Court. In the absence of such a finding, the court held that the Labour Court had therefore erred in upholding the award. The court further found that the arbitrator’s determination constituted an error of law and that the Labour Court had fallen into the same error. After assessing the facts and the evidence before it, the court determined that there was nothing irrational about the findings of the Disciplinary Committee which had been set aside by the arbitrator on “appeal”. Consequently the court allowed the respondent`s appeal.

APPLICANT`S CASE BEFORE THIS COURT

[9]	The applicant states in his founding affidavit that, following the success of the respondent’s appeal in the Supreme Court, he felt aggrieved and filed an application for leave to appeal to this Court under CCZ 78/15. The application was dismissed. He further states that he filed a direct application in terms of s 85(1) of the Constitution under CCZ 43/16 and that application was also dismissed. In March 2020 he filed another application in terms of s 85(1)(a) and (d) of the Constitution. The gravamen of his complaint in that application was that the conduct of the Supreme Court had violated his fundamental rights. The application was struck off the roll because he had failed to seek the leave of this court before approaching it directly. This necessitated the making of the present application which was filed on 17 August 2020.

[10]  It is the applicant`s submission that the conduct of the Supreme Court was not consistent with the Constitution and that such conduct infringed his fundamental right to equality as enshrined in s 56 of the Constitution. He also alleges that the Supreme Court denied him the right to equal protection of the Constitution itself.

[11]	Although the founding affidavit is convoluted and prolix, the essence of the applicant`s cause of the complaint as set out in his founding affidavit is said to be:

“Whether the conduct of the Supreme Court is valid and constitutional when the Supreme Court had illegally adopted the form of question of law on issues of fact, which had been settled, as set out below without at all looking at the substance of the grounds of appeal against the judgment made by the Labour Court and proceeded to determine the matter as an appeal under Civil Appeal No. SC 465/13 thereby technically circumventing the question of law required by section 92F(1) of the Labour Act [Chapter 28:01] in those grounds of appeal”

[12]	The above statement constitutes the gravamen of the applicant`s grievance against the “conduct” of the Supreme Court. He also states that the Supreme Court grossly erred “when it, in support of such form of question of law on issues of fact as set out above, had even made the misleading pronouncements on the issues that had not been raised before it, and on which the parties had advanced no argument...” The allegation is also made that the court misdirected itself in interpreting clause 9.0 of the respondent`s Conditions of Use of Authority Vehicles.

[13]	Pursuant to the above conduct of the Supreme Court, the applicant submits that his right to equal protection and benefit of the law protected by s 56 of the Constitution was infringed. He also avers that the Supreme Court did not comply with ss 3(2)(g), 44, 165(1)(a) and (c) and 185 of the Constitution “unless proved otherwise”.

RESPONDENT`S CASE BEFORE THIS COURT

[14]	In its submissions the respondent drew attention to the concession made by the applicant at the hearing of this matter that the Supreme Court is the final court of appeal except in matters over which this Court has jurisdiction. It averred that s 167 of the Constitution does not give the Constitutional Court the jurisdiction to review a final judgment of the court a quo.

[15]	It was the respondent`s further submission that the applicant is simply aggrieved by the judgment of the Supreme Court. The present application is a disguised appeal against a final decision of the Supreme Court. The respondent also contends that neither the judgment nor the conduct of the Supreme Court violates the applicant`s fundamental rights as alleged or at all. Consequently, the respondent prays that the application be dismissed with a punitive order of costs.

ISSUE ARISING FOR DETERMINATION

[16]	The sole issue arising in this application is whether or not it is in the interests of justice to grant the applicant direct access to this Court.

[17]  An application for direct access is regulated by the Rules of this Court and an applicant must satisfy all the requirements set by the Rules. Compliance with the Rules is not a mere formality. As stated in Liberal Democrats & Ors v The President of the Republic of Zimbabwe E.D. Mnangagwa N.O. & Ors CCZ 7/18 at page 10 of the cyclostyled judgment:

“direct access to the Constitutional Court is an extraordinary procedure granted in deserving cases that meet the requirements prescribed by the relevant rules of the Court.”

[18]	Rule 21 (3) of the Rules contains the requirements that ought to be satisfied in an application of this nature. It states the following:

“(3) An application in terms of subrule (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 interests 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.” (emphasis added)

[19] Rule 21(8) in turn itemises some of the factors to be taken into account in determining whether it is in the interests of justice for a matter to be brought directly to this Court. These include the prospects of success if direct access is granted, the availability of an alternative remedy and whether there are disputes of fact in the matter.

[20]	The importance of the requirement that an applicant should show that it is in the interests of justice that the application be granted has been explained by Currie I and de Waal J in “The Bill of Rights Handbook” (6th edn, Juta & Co (Pty) Ltd, Cape Town, 2013) at p 128. The learned authors state:-

“Direct access is an extraordinary procedure that has been granted by the Constitutional Court in only a handful of cases. … The Constitutional Court is the highest court on all constitutional matters. If constitutional matters could be brought directly to it as a matter of course, the Constitutional Court could be called upon to deal with disputed facts on which evidence might be necessary, to decide constitutional issues which are not decisive of the litigation and which might prove to be of purely academic interest, and to hear cases without the benefit of the views of other courts having constitutional jurisdiction. Moreover, … it is not ordinarily in the interests of justice for a court to sit as a court of first and last instance, in which matters are decided without there being any possibility of appealing against the decision given.”

[21]	It is settled law that the jurisdiction of the Court is triggered only where a constitutional matter arises or where an issue connected with a decision on a constitutional matter arises.

[22]	In terms of s 332 of the Constitution, a constitutional matter is a matter in which there is an issue involving the interpretation, protection or enforcement of the Constitution. In Moyo v Chacha & Ors 2017 (2) ZLR 142 (CC) this Court defined a constitutional matter at p 150D as follows:

“The import of the definition of ‘constitutional matter’ is that the Constitutional Court would be generally concerned with the determination of matters raising questions of law, the resolution of which require the interpretation, protection or enforcement of the Constitution.

The Constitutional Court has no competence to hear and determine issues that do not involve the interpretation or enforcement of the Constitution or are not connected with a decision on issues involving the interpretation, protection or enforcement of the Constitution.”

[23]	In the present matter, the basis of the applicant`s grievance is that the conduct of the Supreme Court is invalid and unconstitutional because it misinterpreted the application of the term “question of law”. It is that conduct which has given rise to this application.

[24]	The Supreme Court is the final court of appeal in non-constitutional matters and is established in terms of the law. It is consequently under a legal obligation to protect fundamental rights and freedoms. It does so by enforcing such rights and freedoms through appropriate adjudicatory processes. It is itself under the constitutional obligation not to violate fundamental rights or freedoms when adjudicating over cases involving non-constitutional issues. In other words, the protection of the exercise of jurisdiction in non-constitutional matters is subject to due compliance with the obligation to protect fundamental rights or freedoms, the infringement of which would disable the court from making a decision on the non-constitutional issue.

[25]	As noted the applicant takes issue with the application of the term “question of law” by the Supreme Court and argues that its application to issues of fact does not at all constitute the question of law envisaged by s 92F(1) of the Labour Act [Chapter 28:01]. He submits that a bald allegation that there has been a misdirection on the facts which is so unreasonable that no sensible person who applied his mind to the same facts would have arrived at such a decision is not sufficient and cannot constitute a question of law.

[26]	Put otherwise, the applicant attacks the “conduct” of the Supreme Court in holding that the appeal before it involved questions of law. The Supreme Court stated the following at pp 6-7 of its judgment:

“The main issue to be decided in this appeal is whether the Labour Court was wrong in law to uphold the award of the Arbitrator in quashing the findings of the disciplinary committee as confirmed by the Appeals officer.  A resolution of this issue depends on a determination as to whether or not the Arbitrator, sitting as an appeal Court, could set aside findings of fact made by the lower tribunal.

It is settled that an appellate court will not interfere with factual findings made by a lower court unless those findings were grossly unreasonable in the sense that no reasonable tribunal applying its mind to the same facts would have arrived at the same conclusion; or that the court had taken leave of its senses; or, put otherwise, the decision is so outrageous in its defiance of logic that no sensible person who had applied his mind to the question to be decided could have arrived at it; or that the decision was clearly wrong.

Although the background of the matter is unclear, I proceed from the premise that the Arbitrator sat as an appellate tribunal.  In that capacity he could not set aside findings of fact made by the disciplinary tribunal unless such findings were so irrational that no reasonable tribunal applying its mind to the same facts would arrive at the conclusion that it did.  There was no such finding by the Arbitrator or the Labour Court.  The Arbitrator’s action in this regard constitutes an error of law and the Labour Court fell into the same error.  In upholding the award it said:

‘Even the Arbitrator sitting as an appeal tribunal, it cannot be said that the award was misplaced.  It is accepted that an appellate tribunal/court does not lightly interfere with the decision of a lower court but it appears that this is a proper case for interfering.’

It gave no explanation as to the reason for the interference.  In the absence of a finding by the Arbitrator of irrationality on the part of the Disciplinary Committee, the Labour Court erred in law in upholding the award.”

[27]	In terms of s 92F(1) of the Labour Act an appeal against a decision of the Labour Court lies to the Supreme Court only on a question of law. In Zimbabwe Open University v Ndekwere SC 52/19 the court identified a question of law in the following terms at paragraphs 27 and 28 of the cyclostyled judgment:

[27” The term ‘question of law’ is used in three

distinct, though related, senses. First, it means

a question which the law itself has authoritatively answered to the exclusion of the right of the court to answer the question as it thinks fit. Second, it means a question as to what the law is. And third, any question which is within the province of the judge instead of the jury or assessors – Muzuva v United Bottlers (Pvt) Ltd 1994 (1) ZLR 217 (S), 220 D – F; Sable Chemical Industries Ltd v David Peter Eastenbrook SC 18/10.

[28] Used in the three related senses referred to

above, the term causes no difficulty.  It is, however, used in a fourth sense, that is, where the finding complained of is so outrageous in its defiance of logic or accepted moral standards that no sensible person who has applied his mind to the question to be decided could have arrived at such a conclusion. The nature and circumstances of the case must be such that it is reasonably probable that the tribunal would not have determined as it did had there been no misdirection; in other words that the determination was irrational. A serious misdirection on the facts amounts to a misdirection in law – Hama v National Railways of Zimbabwe 1996 (1) ZLR 664 (SC), 670D.”

[28]	The position of the law as laid down in RBZ v Granger & Anor SC 34/01 is that, if an appeal is to be related to the facts, “there must be an allegation that there has been a misdirection on the facts which is so unreasonable that no sensible person who had applied his mind to the facts would have arrived at such a decision.  And a misdirection of fact is either a failure to appreciate a fact at all, or a finding of fact that is contrary to the evidence actually presented.”

[29]	The above position was qualified in Zvokusekwa v Bikita Rural District Council SC 44/15 in the following words at pp 9-10 of the judgment:

“In my view, the remarks made in Granger’s case (supra) need to be qualified, to the extent that they may be interpreted as saying that, to constitute a point of law, in all cases where findings of fact are attacked, there must be an allegation that there was a misdirection on the facts which was so unreasonable that no sensible person properly applying his mind would have arrived at such a decision.  One must, I think, be guided by the substance of the grounds of appeal and not the form.  Legal practitioners often exhibit different styles in formulating such grounds.  What is important at the end of the day is that the grounds must disclose the basis upon which the decision of the lower court is impugned in a clear and concise manner.  If it is clear that an appellant is criticising a finding by an inferior court on the basis that such finding was contrary to the evidence led or was not supported by such evidence, such a ground cannot be said to be improper merely because the words “there has been a misdirection on the facts which is so unreasonable that no sensible person …… would have arrived at such a decision” have not been added thereto.  If it is evident that the gravamen is that an inferior court mistook the facts and consequently reached a wrong conclusion, such an attack would clearly raise an issue of law and the failure to include the words referred to above would not render such an appeal defective.  After all, there is no magic in the above stated phrase and very often the words are simply regurgitated without any issue of law being raised.  See, for example, the case of Sable Chemical Industries v David Peter Easterbrook SC 18/10 where it was noted that the words “erred on a question of law” are sometimes included in grounds of appeal but without any question of law actually being raised.”

[30]	What emerges clearly from a consideration of the above authorities is that a gross misdirection on the facts can, in certain instances, constitute a point of law. The applicant`s submissions to the contrary are therefore without merit and must be dismissed.

[31]	In Williams and Anor v Msipha and Ors 2010 (2) ZLR 552 (S) the Supreme Court, sitting as a Constitutional Court, acknowledged the fact that a party may challenge the constitutional validity of a judicial decision on the ground that it infringed his or her or its fundamental right to the protection of the law, enshrined in s 18(1) of the former Constitution. The court stated at p 567B-E:

“The Constitution guarantees to any person the fundamental right to the protection under a legal system that is fair but not infallible. Judicial officers, like all human beings, can commit errors of judgment. It is not against the wrongfulness of a judicial decision that the Constitution guarantees protection…

It is the failure by the judicial officer to comply with the requirements of the protection provided by the law of the fundamental human right or freedom which results in the violation or likelihood of violation of the right or freedom against which the Constitution guarantees to the litigant the right to the protection of the law. It is, therefore, important in every case of an alleged violation by a judicial officer of a fundamental human right or freedom to understand what it is that the judicial officer was required by the law to do and what he did, in order to decide whether there was failure of judicial protection which caused a violation of the fundamental human right or freedom concerned.”

[32]	In Denhere v Denhere (nee Marange) and Anor CCZ 9/19, this Court, in determining an application for leave for direct access, also remarked as follows at p 20 of the cyclostyled judgment:

“The remarks in Meda’s case supra do not in any way suggest that once a person has alleged the infringement of a constitutional right, all the other provisions governing access to the Court are side-lined. What this entails is that the mere allegation of a violation of a fundamental right has to be considered in conjunction with other principles governing direct access to the Court. The applicant has to show that the Supreme Court, in the process of determination of the issues before it, failed to act in accordance with the law governing the proceedings to the extent that it was disabled from rendering a decision on a non-constitutional issue it was required to decide. The reason is that a decision on a non-constitutional matter cannot constitute an infringement of the right to equal protection of the law, as it is a decision on a matter within the exclusive jurisdiction of the Supreme Court. The decision is protected by s 169(1) of the Constitution, as read with s 26(1) of the Act.” (emphasis added)

[33]	The theory of constitutional review of a decision of the Supreme Court in a case involving a non-constitutional matter is based on the principle of loss of rights in such proceedings because of the court’s failure to act in terms of the law, thereby producing an unlawful decision. There must, therefore, be proof of the failure to comply with the law. The failure must be shown to have violated a fundamental right protected by the Constitution.

[34]	In Lytton Investments (Pvt) Ltd v Standard Chartered Bank Zimbabwe Ltd & Anor CCZ 11/18 the court stated the following at pp 21-22 of the cyclostyled judgment:

“There is no allegation of breach of the principle of fairness, which is the essence of judicial protection of the right to equal protection of the law. The founding affidavit does not say that the Supreme Court failed to determine the non-constitutional matter because it failed to take into account factors it was required to consider by the law governing the conduct of the proceedings and determination of the non-constitutional matter. There is no mention of the law that governed the conduct of the proceedings or prescribed the rights and obligations in dispute. Compliance with the requirements constituting the objective standard applicable in similar cases is the basis of the guarantee of the right to equal protection of the law the applicant would have been entitled to enjoy.

The case sought to be brought directly to the Court is that the Supreme Court reached a wrong decision on the non-constitutional matter. That the applicant seeks to attack the validity of the decision of the Supreme Court on the ground that it is ‘outrageously wrong’ is clear from the founding affidavits. The relief sought is an order setting aside the decision which upheld the decision of the High Court and no other.” (emphasis added)

[35]	Save for obliquely suggesting that a misdirection on the facts cannot give rise to an issue of law, the applicant has not pointed to the actual transgression that was committed by the Supreme Court or how the proceedings in the lower court violated any of his fundamental rights. In describing the nature of the violation of his rights, the applicant states the following in his founding affidavit:

“In so doing, the Supreme Court had also denied me the right to equal protection of the Constitution itself in terms of section 2 by not complying with sections 3(2)(g), 44, 56(1), 165(1)(a) and (c) and 185 of the Constitution, unless proved otherwise.” (underlining for emphasis)

[36]	It is the applicant who was supposed to “prove otherwise”. This averment is evidence of the fact that the applicant has not been able to substantiate his own averments. As the person making the allegation, the onus was on him to prove the allegation he was making against the Supreme Court.

[37]	Furthermore, a reading of the judgment of the court a quo does not show any patent errors. It determined that the Labour Court erred in failing to set aside the findings of the arbitrator who had not made a finding of irrationality on the part of the disciplinary committee which dismissed the applicant. After considering the merits of the dispute before it, the court a quo concluded that the appeal had merit. The result is that it cannot be said that the court breached any principle of law and produced a constitutionally objectionable decision. In Denhere, supra, the Court commented thus at p 24 of the cyclostyled judgment:

“When the Supreme Court, like any other court, sits to decide an appeal, all it is required to do is to dispose of the matter in a manner which is consistent with the law. A judicial decision is the end result of a process that is regulated by law. In other words, a person has a right to a fair judicial process.”

[38]	Taking into account the above, I am of the considered view that there was no misdirection by the court a quo justifying the grant of direct access. The applicant is merely dissatisfied by the findings of the Supreme Court on the merits. For instance, he contends that the Supreme Court illegally interpreted clause 9.0 of the Conditions of Use of Authority Vehicles. This speaks to the merits of the matter before the Supreme Court which the applicant is evidently not satisfied with. Even the relief that he seeks in the substantive application is telling. He prays that the decision of the Supreme Court be nullified and that the judgment of the Labour Court be restored. What this betrays is that the applicant is merely disgruntled with the final decision of the Supreme Court and nothing more.

[39]	In terms of s 169(1) of the Constitution as read with s 26(1) of the Supreme Court Act [Chapter 7:13], decisions of the Supreme Court on non-constitutional matters are final and not appealable. As stated in Lytton Investments supra at pp 23-24 of the cyclostyled judgment:

“What is clear is that the purpose of the principle of finality of decisions of the Supreme Court on all non-constitutional matters is to bring to an end the litigation on the non-constitutional matters. A decision of the Supreme Court on a non-constitutional matter is part of the litigation process. The decision is therefore correct because it is final. It is not final because it is correct.

The correctness of the decision at law is determined by the legal status of finality. The question of the wrongness of the decision would not arise. There cannot be a wrong decision of the Supreme Court on a non-constitutional matter. A decision declared by the Constitution to be final and binding cannot at the same time be open to challenge on the ground that it violates the fundamental right to the equal protection of the law.

The law of finality of decisions of the Supreme Court on non-constitutional matters applies to all litigants equally, whether they become winners or losers in the litigation process. The declaration of finality of a decision of the Supreme Court on a non-constitutional matter is itself a protection of the law. Once a decision is as a matter of fact a decision of the Supreme Court on a non-constitutional matter, no inquiry into its legal effect can arise. There would be no proof of infringement of a fundamental right or freedom as a juristic fact. It is enough for the purposes of the protection of finality and therefore correctness that the decision is on a non-constitutional matter.”

[40]	As a corollary to the above, 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. This point was underscored in Williams and Anor v Msipha NO and Ors supra at 567C where the Supreme Court said:

“A wrong judicial decision does not violate the fundamental right to the protection of the law guaranteed to a litigant because an appeal procedure is usually available as a remedy for the correction of the decision. Where there is no appeal procedure there cannot be said to be a wrong judicial decision because only an appeal court has the right to say that a judicial decision is wrong. See Maharaj v A G of Trinidad & Tobago (No. 2) (PC) [1979] AC 385 at 399 D–H; Boordman v Attorney General [1996] 2 LRC 196 at 205i–206b.” (my emphasis)

[41]	An objective consideration of the circumstances of the present application shows that the applicant merely exhibits a classic dissatisfaction with the final decision of the Supreme Court. The remarks in Chiite and Ors v The Trustees of the Leonard Cheshire Homes Zimbabwe Central Trust CCZ 10/17 are apposite. The court stated at pp 5-6 of the cyclostyled judgment:

“What the court has before it are disgruntled litigants who have attempted to try and obtain redress under the guise of an appeal on a constitutional matter.  Their criticism of the judgment of the Supreme Court set out in what purports to be grounds of appeal is no more than a raging discontent over the factual findings of the Supreme Court.  The grievances of the losers in the Supreme Court have all the hallmarks of a mere dissatisfaction with the factual findings by that court.  See De Lacy and Anor v South African Post Office 2011(a) BCLR 905 (CC) paras 28 and 57.”

[42]	In any event, the intended application has no prospects of success for the additional reason that the applicant purports to act in two capacities. If granted direct access, he says he intends to approach the court in terms of s 85(1)(a) and (d) of the Constitution.  In other words he intends to approach the court both in his personal capacity and also in the public interest. Such was proscribed by this Court in Mudzuru v Minister of Justice Legal & Parliamentary Affairs CCZ 12/15 in the following words at p 8:

“The applicants alleged that the fundamental rights of a girl child to equal treatment before the law and not to be subjected to any form of marriage enshrined in s 81(1) as read with s 78(1) of the Constitution have been, are being and are likely to be infringed if an order declaring s 22(1) of the Marriage Act and any other law authorising child marriage unconstitutional was not granted by the Court.  What is in issue is the capacity in which the applicants act in claiming the right to approach the court on the allegations they have made.  In claiming locus standi under s 85(1) of the Constitution, a person should act in one capacity in approaching a court and not act in two or more capacities in one proceeding.” (emphasis added)

See also Nkomo v Minister of Local Government, Rural & Urban Development & Ors 2016 (1) ZLR 113 (CC) at p 118B-C.

[43]	Everything considered, therefore, it is not in the interests of justice that direct access to this Court be granted in the present matter. This is essentially because no constitutional issue arises consequent upon the determination of the Supreme Court. There cannot therefore be any question of the applicant having any prospects of success were the application to be granted.

DISPOSITION

[44]	The applicant has failed to show that the Supreme Court acted contrary to any dictates of the law that it was enjoined to follow. Consequently no constitutional issue arises for determination.  It is therefore not in the interests of justice that he be granted direct access to the Court.

[45]	In the result, the Court makes the following order:

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

MAKARAU AJCC			:	I AGREE

PATEL AJCC				:	I AGREE

Applicant in person

Dondo & Partners, respondent`s legal practitioners