Webster Tongoona Rushesha (in his capacity as the legal guardian of Tivonga Sacha Rushesha) & 2 Ors v Alexious Mashingaidze Dera & 5 Ors

### Preamble
Judgment No. CCZ 24/17 1
Const. Application No. CCZ 44/15
REPORTABLE (21)
1
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REPORTABLE	(21)

WEBSTER     TONGOONA       RUSHESHA     (in his capacity as the legal guardian of  TIVONGE     SACHA RUSHESHA)     (2)     RASAR     INVESTMENTS      (PRIVATE)      LIMITED      (3)      PANASHE      RALPH   RUSHESHA

vs

ALEXIOUS     MASHINGAIDZE      DERA      (2)     ZINCOR        TRUSTEES     LIMITED      (3)     FRANK      BUYANGA      (4)      BOKA      INVESTMENTS     (PRIVATE)      LIMITED      (5)      MATTHEW      BOKA      (6)      THE     REGISTRAR      OF      DEEDS

CONSTITUTIONAL COURT OF ZIMBABWE

GWAUNZA JCC, GOWORA JCC, HLATSHWAYO JCC,

GUVAVA JCC, MAVANGIRA JCC, UCHENA JCC

ZIYAMBI AJCC, CHIWESHE AJCC & MAKONI AJCC

HARARE: JUNE 28 & NOVEMBER 22, 2017

T. Mpofu, with him N. Chamisa for the appellants

J. Tsabora, for the first respondent

A.P. de Bourbon SC, for the second respondent

F. Girach, for fourth and fifth respondents

No appearance for the third and sixth respondents

GWAUNZA JCC:	This matter was filed as an appeal against the whole judgment of the Supreme Court dated 18 May 2015. The appellants submit that the appeal is noted in terms of s 167 (1)(a) and (c) as read with s 167 (5)(b) as further read with s 169 (1) of the Constitution.

The matter was not determined on the merits, but on the basis of preliminary points raised by the court and the parties. These related to the competence of the court, as constituted, to hear the matter, as well as the question of whether or not, procedurally, the matter was properly before the court. That being the case, I do not consider it pertinent to set out the full facts of this matter. Suffice to say that the dispute relates to contested ownership and transfer of shares in certain immovable property located in Mt Pleasant, Harare.

Whether the Constitutional Court is improperly constituted without the Deputy Chief Justice

At the commencement of the hearing in this matter, Mr Mpofu, for the appellants took a preliminary point originally taken but abandoned by Advocate de Bourbon for the second respondent. The point was that the Constitutional Court (“the Court”) sitting as indicated above, was not properly constituted, since a Deputy Chief Justice did not constitute the bench set to hear the matter. The court dismissed the point and indicated that its reasons would follow. These are they.

Mr Mpofu premised his preliminary point on para 18 (2) of the 6th Schedule to the Constitution and as well as s 181(2) thereof.

Paragraph 18(2) of the 6th Schedule, is worded as follows;

(2)	Notwithstanding s 166, for seven years after the publication date, the Constitutional Court consists of :-

(a) 	the Chief Justice and the Deputy Chief Justice; and

(b) 	seven other judges of the Supreme Court;

who must sit together as a bench to hear any 	constitutional case.

The argument advanced is that since, (unlike in the case of a Chief Justice), there is no provision in the Constitution for an Acting Deputy Chief Justice, the court during the transitional period up to the year 2020, would be improperly constituted whenever the Deputy Chief Justice was not sitting. Since an Acting Chief Justice is provided for, not in the 6th   Schedule, but in s 181(1) of the Constitution, it could be said that Mr Mpofu accepts that these two provisions may be read together.

Section 181(1) reads as follows;

‘181 Acting judicial appointments

If the office of Chief Justice is vacant or if the office holder is unable to perform the functions of the office, the Deputy Chief Justice acts in his or her place, but if both offices are vacant or both office-holders are unable to perform their functions, the next most senior judge of the Constitutional Court acts as Chief Justice.’

In a constitutional case where the Deputy Chief Justice acts as the Chief Justice, Mr Mpofu’s argument is that, in the absence of a provision for the appointment of an Acting Deputy Chief Justice the court would not be properly constituted as envisaged in para 18(2) of the 6th Schedule to the Constitution. In the case at hand, where both the Chief Justice and the Deputy Chief Justice were not available to sit together with the other judges, Mr Mpofu contends that the bench was also not properly constituted, even though the next most senior judge of the Constitutional Court was presiding, as mandated by s 181(1) of the Constitution. The suggestion is that this arrangement still left unfulfilled, the requirement for the Deputy Chief Justice (or, realistically, an Acting Deputy Chief Justice) to be part of the bench.  It goes without saying that in practical terms the most senior judge cannot act as Chief Justice if the Deputy Chief Justice is available to do so.

The Court found the literal and restrictive interpretation of the provisions cited to not only raise an absurdity, but also, to run counter to the spirit of other provisions of the constitution that are aimed at preventing just such consequences. These are s 181(1) (already cited) and para 18(3) of the 6th Schedule to the Constitution, which provides as follows;

“A vacancy on the Constitutional Court occurring in the first seven years after the publication date must be filled by another judge or an additional or acting judge, as the case may be, of the Supreme Court.”

The 6th Schedule therefore, envisages and addresses a situation where there might be a vacancy on the Constitutional Court bench, occurring during the transitional period.

The combined purpose of these two provisions is clear - to ensure that the work of the court is not hampered in any way by the absence of any member of the bench as outlined in those provisions. Paragraph 18(2) of the 6th Schedule must therefore be interpreted in such a manner that it does not contradict in spirit, purpose and effect, other provisions of the Constitution whose import is to ensure continuity in the operations of the Court at all times.

The interpretation advanced by the appellant, if accepted, would necessarily mean that the Constitutional Court should not and cannot sit in the manner and for the period envisaged in para 18(2) of the 6th Schedule to the Constitution, until such time as the Deputy Chief Justice is appointed, or provision is made in the Constitution for an Acting Deputy Chief Justice to be appointed each time the court is to be headed by an Acting Chief Justice. The court would have to suspend all business indefinitely, since it is not known when the Deputy Chief Justice will be appointed, nor when (or if) the constitution would ever be amended to make provision for an Acting Deputy Chief Justice.

All new cases and appeals filed with the court as well as those postponed for one reason or another would perforce have to accumulate within the registrar’s office. Constitutional justice as dispensed through and by this Court would be suspended or delayed, giving meaning to the adage ‘justice delayed is justice denied’. This is so because fundamental rights sought to be protected through constitutional litigation would remain unprotected, to the detriment of litigants and any violations related to those rights would continue unchecked.  In other words, a form of constitutional crisis would arise. These absurdities are in my view not something that the legislature could have intended.

It is trite that in interpreting a constitutional provision the principles of interpretation are basically no different from those governing the interpretation of any other legislation. This court has had occasion to deal with the construction of constitutional provisions in the case of Chihava and Others v Principal Magistrate and Another, where the following is stated at 35F-36E,

“The starting point in relation to the interpretation of statutes generally would be what is termed ‘the golden rule’ of statutory interpretation. This rule is authoritatively stated thus in the case of Coopers and Lybrand & Others v Bryant 1995 (3) SA 761 (A) at 7;

‘According to the ‘golden rule’ of interpretation, the language in the document is to be given its grammatical and ordinary meaning, unless this would result in some absurdity, or some repugnancy or inconsistency with the rest of the instrument. In his book ‘Principles of Legal Interpretation - Statutes, Contracts and Wills’ 1st Ed. At page 57, E A Kellaway echoes this statement as follows:

‘The dominating Roman-Dutch law principle is that an interpretation which creates an absurdity is not acceptable (that is ‘interpretatio quae parit absurdum, non est admittenda)” (See among other authorities, Exparte Fourie 1962 (3) SA 614 (O); S v Nyathi 1978 (2) SA 20 (B) and Canca v Mount Free Municipality 1984 (2) SA 870 (TK) 833)’”

The learned author, at page 62, further states:

“Even if a (South African) court comes to the conclusion that the language is clear and unambiguous, it is entitled to reject the purely literal meaning if it is apparent from the anomalies which flow therefrom that the literal meaning could not have been intended by the legislature” (my emphasis)

Also apposite to the matter at hand is the summation contained at page 37A-D of the Chihava case (supra) where it is further stated as follows:

‘The principles set out in the dicta cited above can aptly and instructively be summarized as follows:

i) the Legislature is presumed not to intend an absurdity, ambiguity or repugnancy to arise out of the grammatical and ordinary meaning of the words that it uses in an enactment.

ii) therefore, in order to ascertain the true purpose and intent of the Legislature, regard is to be had, not only to the literal meaning of the words, but also to their practical effect …’

Applied to the circumstances of this case, it can in my view be safely assumed that the legislature intended none of the various absurdities that have been listed above. It is a sound principle of the law that when interpreting a statutory provision, the court must be alive to the presumption that the legislature does not intend irrational or unreasonable results. The interpretation of a statute and indeed a Constitution is based not only on what the provision says but also on what the provision does not say.  The Constitution evinces one singular document, one singular law which is consistent within itself. It allows for an interpretation which is consistent for all related provisions. Paragraph 18(2) of the 6th Schedule, taken literally, as already indicated, does not cohere with other provisions of the Constitution, whose purpose is to avoid the very same absurdities that a literal interpretation of the clause would give rise to.

I am satisfied that the meaning of s 181(1) of the Constitution is that, where the Deputy Chief Justice acts as the Chief Justice, the rest of the bench in the case of a hearing, can properly consist of other Constitutional Court judges, substantive or acting, without the need to first have an acting Deputy Chief Justice appointed. It is also clear from the same section that in the absence of both the Chief Justice and the Deputy Chief Justice, the Court necessarily needs to be headed by an Acting Chief Justice, again, without the need for an acting Deputy Chief Justice to be specifically appointed. Reading this provision together with the relevant transitional provisions, it is apparent that the Chief Justice, or a judge acting in his place must preside over each and every constitutional court hearing. This is what happened in this case. There is no similar requirement as regards the Deputy Chief Justice. Had the intention behind s 181(1) been that an Acting Deputy Chief Justice had to sit as well, this would surely have been provided for. Paragraph 18 (2) to the 6th Schedule and s 181(1) ought therefore, to be read together in order to ensure mutual consistency.  In addition, it would be impracticable, if not absurd, to require the President to appoint an Acting Deputy Chief Justice every time the Deputy Chief Justice is unable for one reason or the other, to sit.

In all respects therefore, the court found Mr Mpofu’s arguments to be devoid of merit, hence its dismissal of the preliminary point in question.

Whether the judgment of the Supreme Court in this case is appealable

This is a question that was raised by counsel for the second, fourth and fifth respondents. The court mero motu drew the attention of the parties to the recent judgments of this Court, that considered and decisively determined this very question, as will be seen below.

In the main dispute in casu, the Supreme Court upheld an appeal against a decision of the High Court in which that court had found in favour of the appellants. Aggrieved, they filed this ‘appeal.’ The purported grounds of appeal are phrased, in substance and form, like those filed in any ordinary appeal. For convenience I will reproduce the grounds in full:

“1. 	That the judgment a quo is obviously and patently wrong and stands in breach of the appellants’ fundamental justice such as rights being set out in section 56 (1) and 69 (2) of the Constitution of Zimbabwe more particularly that:

The judgment departs from the pleadings and determines a matter which is not borne out by the pleadings to appellants’ clear prejudice.

Having found that first appellant acquired immovable property in issue and having found that he caused its registration in third appellant’s name, the court a quo without finding that the first appellant had then sold the property or the shares in 3rd appellant had otherwise been disposed of, erred in upholding a sale conducted by 1st respondent who was never the owner of the property.

Having found as it did and contrary to evidence that 3rd appellant’s registration was invalid, the court a quo fundamentally erred in then concluding that the 1st respondent had any rights to pass to 2nd respondent.

Having found that 1st respondent had been fraudulent, the court a quo in breach of appellants’ right to the protection of the law erred in giving effect to his execution of the sale agreement to appellants’ prejudice.

The court a quo erred in not giving effect to the fact that 3rd respondent was in default before the High Court and that the allegations made against him had not been rebutted.

2. The judgment of the court a quo gives effect to a fraud perpetrated against minor children whose upper guardian the court is and represent in that regard a complete abdication of judicial function as envisaged under s 162 of the Constitution of Zimbabwe and is consequently in breach of s 56 (1) of the Constitution of Zimbabwe.”

Based on these grounds the appellant sought the following relief:

“1. THAT the instant appeal be allowed with costs with the declaration being made that the judgment of the Supreme Court of 18 May 2015 being judgment number SC 22/15 is a breach of sections 56 (1) and 69 (2) of the Constitution of Zimbabwe and is consequently void.

2. THAT the judgment of the court a quo be set aside and the following be ordered:

‘The appeal be and is hereby dismissed with costs.” (my emphasis)

In support of these grounds of appeal and in an effort to ‘clothe’ this court with the requisite jurisdiction to hear it, it is stated as follows in the appellant’s heads of argument;

“That an appeal lies to the Constitutional Court against a judgment of the Supreme Court is a point that does not require making. It is a truism. The point that must be made instead is that a matter dealing with an issue otherwise than on a constitutional basis may produce a judgment which is constitutionally objectionable. The existence of that judgment is what entitles an aggrieved subject to appeal and is what clothes the court with the jurisdiction to deal with the matter on appeal”

The appellants thus seek to distinguish their ‘appeal’ from one that attacks a non- constitutional decision of the Supreme Court, on the basis that theirs constituted an attack on the effect, rather than the content of the Supreme Court judgment. This in my view is, as some would say, a ‘distinction without a difference.’

Both counsel for the respondents correctly observed that no authority was cited by the appellant’s counsel in support of this proposition. They argue that an appeal properly noted, by its very nature challenges the correctness of a decision of a subordinate court on a matter or issue brought and argued before it. It is in other words grounded on such a determination. The appellants do not dispute that before the Supreme Court, no constitutional issue was raised by them, much less determined by that court. The ‘appeal’, rather, aims to impugn the effect of the Supreme Court judgment on the premise that it infringes certain of the appellants’ fundamental rights and freedoms. Under the guise of this ‘appeal’ they implore the Constitutional Court to set aside a judgment of the Supreme Court, which neither determined a constitutional issue, nor fell into the category of decisions against which one may appropriately appeal to this Court (See S 175 (3) of the Constitution.) The appellants further wish to have this court substitute a (non)constitutional decision for one properly reached by the Supreme Court.

I therefore find no merit in the appellant’s unsupported proposition. It evinces a misconception as to the nature and essence of an appeal. It also constitutes an attempt to turn this court into a general court of appeal. This in my view is unsupportable. Specific provisions of the Constitution on the jurisdiction of both the Supreme Court and this court prescribe what matters can properly be brought, on appeal, to this court. In addition to this, a line of recent decisions of this court have decisively laid down the law, based on sound authorities, and on the interpretation of relevant provisions of the Constitution, in particular ss 167(1), I69(1) and 167(5). It is noted that the appellants partially premised this ‘appeal’ on s 167(5). In short, these authorities have ruled that no appeal lies to the Constitutional Court from a decision of the Supreme Court that is not on a constitutional issue. None of the provisions and authorities alluded to provide for ‘appeals’ to this Court against the effect of a judgment properly arrived at by an inferior court.

Section 169 (1) of the Constitution states as follows;

“169. Jurisdiction of the Supreme Court

The Supreme Court is the final court of appeal for Zimbabwe except in matters over which the Constitutional Court has jurisdiction”

The import of this provision needs no elaboration. Only where the Supreme Court determines a constitutional issue, may one appeal to this Court for a final determination.  Because the Supreme Court in this matter did not determine any constitutional issue, the decision it rendered was final and not appealable. Since courts are not expected to, and invariably do not, render judgments that cannot be put into effect - which are in other words a brutum fulmen - a purported appeal against the effect of a judgment of the Supreme Court on a non-constitutional issue is in reality an appeal envisaged in s 169(1). That is, a final judgment that is not appealable no matter how well disguised any such purported appeal may be. It does not escape notice that in seeking to have the Supreme Court judgment overturned under the guise of an appeal to this Court, the appellants are in effect, attempting to revive, and reinstate, the judgment of the High Court, which was in their favour.  What is sought would be both manifestly irregular, and bad at law.

Section 169(1) must be read together with s 167(1) of the Constitution, which provides as follows in relevant part:

167. Jurisdiction of Constitutional Court

(1) The Constitutional Court -

(a) is the highest court in all constitutional matters, and its decisions on those matters bind all other courts;

(b) decides only constitutional matters and issues connected with decisions on constitutional matters, in particular …. (my emphasis)

As already indicated, the ‘appeal’ brought to this court is not against a decision on a constitutional matter, defined as follows in s 332 of the Constitution:

‘a matter in which there is an issue involving the interpretation, protection or enforcement of this Constitution’

The judgment was also not on an issue connected to a decision on constitutional matters. I have no doubt in my mind that the ‘connection’ referred to in s 167(b) is one that bears no relationship to the tangential link to the judgment, that the appellants seek to rely on.

This Court had occasion to deal directly with this point in the case of The Cold Chain (Private) Limited T/A Sea Harvest v Makoni,  where MALABA DCJ  (as he then was) said:

“…in terms of s 167(1) of the Constitution, the Constitutional Court is the highest court in all constitutional matters and decides only constitutional matters and issues connected with decisions on constitutional matters. Rule 32(2) of the Constitutional Court Rules makes it clear that only a litigant who is aggrieved by the decision of a subordinate court on a constitutional matter has a right to apply for leave to appeal to the Constitutional Court…  A Karger, in his book, Powers of the New York Court of Appeals, 3 Ed, at p 245 states the principle thus:

“The constitutional question must be both directly involved in the Appellate Division order and substantial. The appellant has the burden of establishing the direct involvement of the constitutional question.”” (my emphasis)

Apposite too are the words of ZIYAMBI JCC in Nyamande v Zuva Petroleum,

“The applicants have not alleged that s 175 (3) applies in their case. Since no constitutional issue was determined by the Supreme Court, no appeal can lie against its decision.  It follows that the applicants have not established a right of appeal to the Constitutional Court and any appeal filed in this matter by the applicants is a nullity as it conflicts with the provisions of s 169(1) of the Constitution.” (my emphasis)

It is evident, based on the authorities cited, that the appellants have failed to establish that the constitutional issue they now seek to pursue through this misguided ‘appeal’ was both ‘directly involved’ in the impugned Supreme Court order nor that it was ‘substantial.’ The burden lay on them to do so.  (see The Cold Chain Case, (supra)

In relation to s 167(5)(b), this Court in Prosecutor General v Telecel cited, with approval, the Nyamande case ( supra), and stated thus;

“In that case, the applicants, who had not raised a constitutional issue before the Supreme Court sought leave to appeal against its decision, purportedly (and erroneously) in terms of s 167(5) of the Constitution. The application was dismissed with the Court correctly holding as follows:

‘Section 167(5) relates to rules of procedure regulating the manner of approach to this Court from lower courts. It does not confer a right to appeal to the Constitutional Court on a litigant who has no right of appeal’” (my emphasis)

This settles the matter in so far as the appellants’ attempt to partially premise their appeal on this ground, is concerned.

Finally, in relation the appellants’ attack on the judgment of the Supreme Court on the basis that it was patently wrong, the argument by both counsel for the respondents is that a wrong judgment does not convert into a judgment on a constitutional matter capable of being appealed against to this court.  I find that there is merit in this argument, and the words of MALABA DCJ (as he then was) in Williams and Another v Msipha N.O and Others put the matter beyond any doubt;

‘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.  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 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 205 i –  206 b. (my emphasis)

From the authorities cited above, it is clear that even if the Supreme Court erred and rendered a judgment that was wrong, as claimed by the appellants in casu, this did not convert the judgment into one on a constitutional issue. The appellants’ argument therefore lacks merit.

I find, in the final analysis, that the appellants had, in this case, no right of appeal to this court. In other words, the court lacks the jurisdiction to hear the purported appeal.

Accordingly, the appeal, such as it was, is not properly before this court and ought to be dismissed.

Costs

Both Mr de Bourbon and Mr Girach for the second, and fourth and fifth respondents respectively, prayed for costs on an attorney and client scale, largely on the basis that the appellants persisted with the appeal despite various decisions of this Court, to the effect that the appeal was not sustainable in that form. Mr Mpofu disputed this and insisted that a punitive order of costs was not warranted because the technical point he had raised had also been raised by counsel for the second respondent, even though he had later abandoned it. He argued that in light of that, the point was not so hopeless as to warrant the order of costs sought. Mr Mpofu took the view that where a person is genuinely aggrieved by a judgment which they perceive to be wrong, they ought not to be punished for seeking redress before the courts. He reiterated that the appellants had won their matter in the High Court, a circumstance that attested to some merit in their case. Finally, Mr Mpofu submitted that due to circumstances beyond his control, he was not adequately prepared for the hearing. He urged the court to consider all these circumstances in its award of costs.

It is a general rule of this court that costs are not awarded in constitutional matters. However, there are circumstances that call for costs, including costs on an attorney and client scale. The conduct of the appellants in this case calls for some rebuke. It is common cause that the appellants received notice on 11 May 2017 that this matter was going to be heard on 28 June 2017. The Chief Justice was appointed on 29 March 2017 leaving the post of Deputy Chief Justice vacant. The appellants therefore had enough time to raise the preliminary point in question before the hearing, or in their heads of argument, since it was foreseeable that on the date of hearing, the country would not have a Deputy Chief Justice. Instead, the appellants waited until the hearing date to pick up and raise the same preliminary point that the second respondent had discarded.  They then argued that the appeal should not have been set down before the country had a Deputy Chief Justice. These concerns of the appellants could in my view have been properly raised with the court or the Registrar, before the date of the hearing.  Thus the manner in which the appellants took the preliminary point, in my view, betrays a lack of bona fides, even though in principle there is nothing wrong with the raising of a preliminary point for the first time at the hearing of a matter.

Added to this is the fact that this Court, as indicated, has already ruled in the judgments mentioned that where the Supreme Court has not dealt with constitutional issues, its decision is final and no appeal lies therefrom, to the Constitutional Court. That notwithstanding and despite the same points being made reference to in the respondents’ heads of argument, the appellants persisted with conduct that is specifically proscribed by the authorities cited. Legal practitioners are expected to take heed of and be guided by decisions of this court on any specific matter, and of course, to advise their clients accordingly. They must, in my view, be disabused of the notion that they are at large to approach this court with all manner of appeals against decisions of the Supreme Court. Lastly, I take the view that a situation where the court is called upon to consistently repeat the same point in its judgments, does not augur well for the development of our constitutional law jurisprudence.

I am satisfied in view of the foregoing that the respondents have made a case for costs on a higher scale against the appellants,

In the result, the following order is made;

The point in limine raised by the appellants is hereby dismissed.

The ‘appeal’ be and is hereby dismissed.

The appellants shall pay the costs of the second, fourth and fifth respondents on an attorney and client scale.

GOWORA JCC:			I agree

HLATSHWAYO JCC:		I agree

GUVAVA JCC:			I agree

MAVANGIRA JCC:			I agree

UCHENA JCC:			I agree

ZIYAMBI AJCC:			I agree

CHIWESHE AJCC:			I agree

MAKONI AJCC:			I agree

Dube, Manikai and Hwacha, appellants’ legal practitioners

Costa and Madzonga, 2nd respondent’s legal practitioners

Scanlen and Holderness, 4th and 5th respondent’s legal practitioners