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The Church of the Province of Central Africa v Diocesan Trustees for the Diocese of Harare and The Sheriff for Zimbabwe
HH 206-11HH 206-112011
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THE CHURCH OF THE PROVINCE OF CENTRAL AFRICA
versus
DIOCESAN TRUSTEES FOR THE DIOCESSE OF HARARE
and
THE SHERIFF FOR ZIMBABWE
HIGH COURT OF ZIMBABWE
UCHENA J
HARARE, 14, 15, & 23 September 2011.
Urgent Chamber Application
J Bhamu, for the applicant
T. M Kanengoni, for the first respondent.
UCHENA J: The applicant filed an urgent chamber application seeking an order
of this court, staying the execution of an order granted by HLATSWAYO J on 24 July
2009, in HC 4327/08.
The respondent opposed the application and raised preliminary issues on the
jurisdiction of this court to hear and determine an application for, a stay of an execution
which was authorised by the Supreme Court, urgency and the authority of the deponent
of the applicant’s founding affidavit. I will first consider the issue of jurisdiction as the
consideration of the other issues depends on whether or not I have jurisdiction entitling
me to hear this application.
The history of the parties’ disputes leading to this application is as follows. The
parties appeared before HLATSWAYO J who granted the order which the applicant
wants to be stayed. The applicant appealed to the Supreme Court. The appeal suspended
the execution of that order. The appeal SC 180/09 was dismissed for failure to comply
with r 46 (5) of the Supreme Court rules. The applicant applied for its reinstatement
which was granted by the Chief Justice in SC 19/11.
In granting the reinstatement the Chief Justice in paragraphs two and three of his
order, ordered that;
1. ----
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2. It is ordered that the appeal against the first court order of HLATSWAYO J of
24 July 2009 be and is hereby reinstated.
3. The noting of the appeal should not suspend the operation of the order referred
to in para 2 above.
The order in paragraph three was given after the Chief Justice had in his judgment
SC 19/11, at pages 9 to 10 of the cyclostyled judgment said;
“Condonation for failure to comply with the Rules of this Court is an indulgence
granted by a Judge of this Court upon the exercise of his judicial discretion. In the
exercise of that judicial discretion the Judge may impose appropriate conditions.
In casu having considered that there has been numerous applications and counter-
applications between these parties, there is need to curtail these applications. The
multiplicity of these applications is simply adding to the confusion and hampering
expeditious finalization of the dispute between the parties. Taking these factors
into account, it is desirable that the judgment (judgment in HH 166/09), in respect
of which I have reinstated the Notice of Appeal, remain extant until set aside by
the Court on appeal. For the avoidance of doubt, the judgment will not be
suspended by the noting of an appeal against it.”
Mr Bhamu for the applicant bases the applicant’s application on an application it
has made to the Constitutional Court against the Chief Justice’s order, and another urgent
application it has filed in the Supreme Court seeking the urgent set down of the
constitutional application. The parties advised this court that they have since appeared
before the Chief Justice and agreed to postpone sine die the constitutional application and
urgent application in the Supreme Court in preference of the urgent set down of the
reinstated appeal. This is in tandem with the reason for which execution pending appeal
was granted. The multiplicity of applications is clearly being frowned upon. Mr Bhamu
submitted that the order to be stayed is an order of this court and the warrant of execution
was issued by this court, therefore this court has jurisdiction to control its internal
processes. That would be correct, when this court is acting in the absence of a contrary
order from a higher court, on the execution of this court’s order. In this case the question
of jurisdiction arises because the Supreme Court on reinstating the applicant’s appeal
used its appellate discretion exercised when granting the indulgence the applicant was
seeking, to order that the noting of the appeal was not to suspend the execution of the
judgment whose appeal it was reinstating. It gave reasons for its order and specifically
said this was to curtail the multiplicity of applications between these parties. My task is to
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determine whether this court can entertain an application to circumvent the Supreme
Court’s clear order that execution should proceed in spite of the reinstatement of the
applicant’s appeal.
Mr Bhamu further argued that the Supreme Court’s order merely reversed the
onus from the responded to the applicant on whether or not the order of HLATSWAYO J
can be executed pending appeal. Ordinarily the onus to apply for execution pending
appeal would have been on the responded. The applicant’s counsel therefore argued that
the Chief justice’s order has merely shifted the onus to apply for stay of execution to the
applicant. That is a simplistic approach to the issue before the court. The issue before the
court involves a definitive order backed by clear reasons for the order to execute pending
appeal. It was to stop the multiplicity of applications, not to merely shift the onus from
one party to the other.
Mr Kanengoni submitted that the Supreme Court has clearly pronounced its
decision on the execution of the order pending appeal, and this court can not alter what
the Supreme Court has ordered. It simply has no jurisdiction. Mr Kanengoni’s submission
seems to have merit, as. Courts, fall within a recognised hierarchy, based on their
superiority over each other. The Supreme Court being the highest court of the land, is
superior to the High Court, and its orders are binding on this court, and can not be
countered by it. The applicant’s attempt to circumvent the Supreme Court’s order through
this Court is a novel one which Mr Bhamu for the applicant and Mr Kanengoni for the
first respondent conceded has no local precedent. The applicant’s counsel, and
respondent’s counsel, where thus given time to enable them to research and make written
supplementary submissions on case law from other jurisdictions. They were put on terms
as to when they were to file their respective supplementary submissions.
In his written supplementary submissions Mr Bhamu in para 5 said;
“While there is a plethora of case law, both in our jurisdiction and beyond, on the
particular issue of a court’s jurisdiction to determine an application for stay of
execution, no case has been found which fits on all fours with the set of facts as in
the present matter. However the other authorities found are of great value in so far
as they relate to the generic principles governing stay of execution, which can be
equally applied to solve the legal problem in this case.”
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The lack of precedent in our jurisdiction and elsewhere confirms the novelty of
the issue before me. It seems to confirm that I am being asked to act against the current of
judicial precedents, and the normal order of the operation of the hierarchy of courts. The
generic principle on this court’s jurisdiction to control its own process had been
exhausted and needs no further consideration. I will however consider the applicant’s
submissions on the case of Commercial Farmer’s Union vs Mhuriro & Others 2000 (2)
ZLR 405 SC, and section 79B of the Constitution, which applicant’s counsel argues may
justify the assumption of jurisdiction by this court in spite of the Supreme Court’s order.
The Commercial Farmers Union vs Mhuriro case
In the Commercial Farmers Union vs Mhuriro case (supra) a situation similar to
that in the present case arose but in slightly different circumstances. The Commercial
farmer’s Union had in an earlier case succeeded in obtaining the Supreme Court’s order
by consent for the eviction of people who had settled at its member’s farms. Mhuriro and
other settlers applied to the High Court for the stay of that order, pending their making a
constitutional application to set aside the Supreme Court’s order before the Constitutional
Court.. The High Court granted the order sought. The Commercial Farmers Union
applied to the Supreme Court for the setting aside of the High Court’s order on the
ground that the High Court had no jurisdiction to interfere with the Supreme Court’s
order. The Supreme Court in granting the Commercial Farmers Union’s application per
GUBBAY CJ with the concurrence of four other judges of the Supreme Court at page
408 C to E said;
“While s 7 of the Act undoubtedly leaves it to the High Court to execute and
enforce judgments of the Supreme Court, this certainly does not mean that the
High Court is empowered to suspend, even temporarily, the effect of an order of
the Supreme Court either made in the exercise of its appellate jurisdiction or
pursuant to s 24(4) of the Constitution. For such would constitute a direct
interference with the authority of a superior court by one subordinate to it. It
would be to sanction, as occurred in this matter, an interference by a single judge
of the High Court with an order concurred in by five judges of the Supreme Court.
The proposition only needs to be stated to reveal its inherent flaw.
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The fact that an order of the Supreme Court was made by consent does not alter
the situation. It remains an order of the Supreme Court and may only be varied,
set aside or, in any way interfered with by the Supreme Court.”
In his supplementary submissions Mr Bhamu sought to distinguish the Commercial
Farmers Union case (supra) from this case on the following grounds;
1. That the order of the Chief Justice was not issued pursuant to the Supreme Court
exercising original jurisdiction granted by s 24 (1) as read with s 24 (4) of the
Constitution.
2. The order was issued in chambers with only the Chief Justice presiding.
3. The order which was to be stayed in the Commercial Farmers Union vs Mhuriro
case had not originated from the High Court, and
4. Applicant is not asking for stay of an order made with the consent of the parties.
Mr Kanengoni for the first respondent was also not able to find authorities from other
jurisdictions supporting the proposition that this court has jurisdiction to hear an
application seeking to stay execution of this Court’s order which the Supreme Court has
ordered in spite of its having reinstated the appeal. He commented on the Commercial
Farmers Union case in paragraph 6 of his supplementary submissions as follows;
“The only case cited by the applicant that somewhat resembles the present matter
is that of Commercial Farmers Union vs Mhuriro & Ors 2000 (2) ZLR 405 SC.
The applicant has however sought to distance itself from the authority of that case
on the contention that it is distinguishable from the present matter. There are
factual differences between the present matter and the Commercial Farmer’s
Union case (supra), but it is noteworthy that one of the premises upon which the
Supreme Court found that the High Court could not exercise jurisdiction upon
orders of the Supreme was the hierarchy and judicial authority of the courts in
Zimbabwe.”
He however did not deal separately with the four grounds of distinction advanced
by the applicant’s counsel.
A reading of the Commercial Farmer’s Union case (supra) reveals that the
Supreme Court based its finding on its original and appellate jurisdiction. It clearly said;
“this certainly does not mean that the High Court is empowered to suspend, even
temporarily, the effect of an order of the Supreme Court either made in the
exercise of its appellate jurisdiction or pursuant to s 24(4) of the Constitution. For
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such would constitute a direct interference with the authority of a superior court
by one subordinate to it.”
In this case the Supreme Court exercised its appellate jurisdiction in ordering
execution pending appeal. The fact that the Supreme Court did not exercise original
jurisdiction when it ordered execution pending appeal does not therefore, confer
jurisdiction on this court to interfere with the Supreme Court’s order.
The fact that the order was granted by the Chief Justice in chambers sitting as a
single judge of the Supreme Court does not open his order to interference by a court
subordinate to his. The reference to five judges in the Commercial Farmers Union case
(supra) was merely for emphasis. An order of the Supreme Court whether by one judge
or the full bench is an order of the Supreme Court, and is binding on all courts
subordinate to it and can not be interfered with by them. In the quotation of GUBBAY
CJ’s judgment in the Commercial Farmers Union case (supra) referred to earlier the
Supreme Court clearly spelt out the position of its orders when it said;
“The fact that an order of the Supreme Court was made by consent does not alter
the situation. It remains an order of the Supreme Court and may only be varied,
set aside or, in any way interfered with by the Supreme Court.”
Nothing therefore turns on the order having been issued by the Chief Justice
sitting in Chambers.
The fact that the order which was to be stayed in the Commercial Farmers Union
vs Mhuriro case had not originated from the High Court does not take the applicant’s
case any further because as already said once the Supreme Court issues an order either in
the exercise of its appellate or original jurisdiction, it can only be interfered with by itself
and by no other court. Therefore nothing turns on the applicant’s third distinction of the
Commercial Farmers Union case (supra) from this case.
The fact that applicant is not asking for stay of an order made with the consent of
the parties is of no relevance. The issue is on the jurisdiction of this court to interfere with
the order of the Supreme Court irrespective of how it was made. As already said, it
remains an order of the Supreme Court and may only be varied, set aside or, in any way
interfered with by the Supreme Court.”
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The precedent created in the Commercial Farmers Union vs Mhuriro case (supra)
therefore applies with equal force in this case. Its application in this case has not been
ousted by the applicant’s counsel’s attempt to distinguish it from this case.
Section 79B of the Constitution.
The applicant’s counsel also sought to rely on s 79B of the Constitution to prove
that this court has jurisdiction in spite of the prior order of the Supreme Court ordering
the execution of HLATSWAYO J’s order which the applicant seeks to stay through this
application. He in para 7 of his supplementary submissions said;
“The above authority is self explanatory , this court is not subject to the direction
or control of any person, including the Chief Justice, except to the extent that may
be provided for under a written law. It is up to 1 st respondent to present a written
law which would place the exercise of this court’s jurisdiction under the control
or direction of the Chief Justice. This is also in view of the fact that the Chief
Justice is himself a member of the High Court, which is designated as a superior
court of record with inherent jurisdiction in terms of Sections 79, 79A, and 80 of
the Constitution.
Mr Kanengoni in paragraphs 15 to 17 of his supplementary submissions
commented on Mr Bhamu’s reliance on s 79B of the Constitution as follows;
15 With respect to the contention that s 79B of the constitution allows this
honourable court to grant the relief sought herein, one must advert his
attention to the first words of that section i.e;
“In the exercise of his judicial authority”
16 The section is therefore, premised upon the boundaries of the judicial officer’s
judicial authority. As highlighted herein above, the hierarchy of the courts and
consequent judicial authority in Zimbabwe does not vest this honourable court
with jurisdiction to grant the relief sought herein. It follows from this that this
honourable court cannot, by virtue of section 79B extend the boundaries of its
judicial authority as to allow it to entertain this matter. Section 79B merely
enshrines independence of the judiciary within the ambit of its judicial
authority. It does not sanction the ad hoc extension of such judicial authority.
17 Section 79B can therefore, not be a basis upon which this honourable court
can exercise jurisdiction in this matter.”
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I agree with Mr Kanengoni’s submission that s 79B of the Constitution does not
extend this court’s authority, nor enable it to interfere with the decision of the Supreme
Court which authorised execution pending appeal, but merely provides for the
independence of the judiciary.
Section 79B provides as follows;
“In the exercise of his judicial authority, a member of the judiciary shall not be subject to the
direction or control of any person or authority, except to the extent that a written law may
place him under the direction or control of another member of the judiciary.”
My understanding of s 79B of the Constitution is that judicial officers are to act
independently in the exercise of their judicial authority. They shall not be subject to the direction
or control of any person or authority, except to the extent that a written law may place him under
the direction or control of another member of the judiciary.
This does not in my view entitle a judicial officer to vary, set aside or interfere
with an order made by a court superior to his, or fail to observe judicial precedents based
on the hierarchy of the courts. Precedents are based on the hierarchy of the courts and
simply require a subordinate court to defer to the decisions of the court superior to it
Section 80 of the Constitution provides that;
“(1) There shall be a Supreme Court which shall be a superior court of record and
the final court of appeal for Zimbabwe---”
Section 80 places the authority of judges of this court under that of judges of the
Supreme Court., which is the highest court of the land. It thus, as permitted, by s 79B,
places judges of this court under the direction or control of the decisions of judges of the
Supreme Court, who are members of the judiciary.
Sections 79, and 81 of the Constitution also place the High Court below the
Supreme Court. In this case the Supreme Court, while exercising its appellate
jurisdiction which carries finality on any issue ordered that execution can be carried out
pending the reinstated appeal. Therefore s 79B does not apply to the circumstances of this
case. It does not excuse a judicial officer from being bound by a prior decision of a court
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of superior jurisdiction. A judicial officer can therefore not interfere with, vary or set
aside, a prior decision of a court of higher jurisdiction.
In this case the Chief Justice made the order in issue, before an application was
made to this court. His court is superior to mine. His prior determination that the order of
HLATSWAYO J should not be suspended by the reinstated appeal, can therefore, not be
said to be a directive to this court. It is a determination of an application that was before
him long before this application was made. It is however an order of the Supreme Court
which this court can not vary or interfere with.
The fact that the Chief Justice is in terms of s 81 (2) (a) of the Constitution, a
member of and can preside in the High Court as a judge of the High Court does not have
any relevance in this case, because he did not exercise his high court jurisdiction when he
made the order which led to this application. He made that order in the exercise of his
appellate jurisdiction as a judge of the Supreme Court as provided in s 80 (2) (a) of the
Constitution.
What would be a direction or control prohibited by s 79B is an administrative
order he can give in terms of s 79A of the Constitution as head of the judiciary if it
affects a judicial officer’s exercise of his judicial authority. In view of the above there is
no merit in Mr Bhamu’s submissions based on s 79B of the Constitution. I am therefore
satisfied that I have no jurisdiction to interfere with the order granted by the Chief
Justice.
In the result the applicant’s application is dismissed with costs.
Zimbabwe Lawyers for Human Rights, applicant’s legal practitioners
Chikumbirike & Associates, first respondent’s legal practitioners