Court name
Supreme Court of Zimbabwe
Case number
SC 21 of 2004
Civil Application 302 of 2002

Chitepo v City of Mutare and Another (02/02) (SC 21 of 2004, Civil Application 302 of 2002) [2004] ZWSC 21 (09 May 2004);

Law report citations
Media neutral citation
[2004] ZWSC 21




DISTRIBUTABLE
(18)














Judgment
No S.C.21/04


Civil
Application No. 302/02

















BERNARD
CHITEPO v





(1)
CITY OF MUTARE





(2)
THE MINISTER OF LOCAL GOVERNMENT, RURAL AND
URBAN DEVELOPMENT











SUPREME
COURT OF ZIMBABWE


CHIDYAUSIKU
CJ, CHEDA JA, ZIYAMBI JA, MALABA JA & GWAUNZA JA


HARARE,
MARCH 3 & MAY 10, 2004








The
appellant in person





Respondents
barred from appearing for late filing of heads of argument









CHIDYAUSIKU CJ: The
applicant was formerly employed by the first respondent as its City
Treasurer until 3 December 1993 when
the applicant’s contract of
employment was terminated. The respondent paid, and the applicant
accepted, terminal benefits on
that date.





On
6 July 1996, some two-and-a-half years after the applicant had been
dismissed, he filed an application in the High Court seeking
a
declarator that the termination of his contract of employment was a
nullity. The High Court concluded that the application was
for a
review and as such, was filed out of time. In terms of Rule 259 of
the High Court Rules the application for review should
have been
filed within eight weeks of 3 December 1993. The application
was dismissed on that basis. The court also concluded
that the
applicant’s employment had been lawfully terminated and the
application had no prospects of success on the merits. The
applicant was dissatisfied with this outcome and appealed to this
court. The appeal was heard by the Supreme Court which upheld
the
judgment of the High Court. The Supreme Court was satisfied that
the applicant had not provided a good explanation for the
failure to
launch the application for review timeously. The appeal was
dismissed. In January 2001 the first respondent drafted
its bill of
costs and following the issuance of a writ of execution the full
amount of the first respondent’s costs were settled.





In
September 2002 the applicant launched this application in terms of s
24(2) of the Constitution of Zimbabwe. The application,
with the
greatest respect to the applicant, is 116 pages of meaningless
verbiage and convoluted citations of the Urban Council’s
Act. For
instance, paragraph 1 of the court application reads as follows:-







“I
am the Applicant herein, I was employed as City Treasurer by the
1
st
Respondent whose address of service is care of the undersigned legal
practitioners. The facts I depose hereto are fully within
my
knowledge and to the best of my belief true and correct. I was
invalidly and unlawfully discharged, on the 3
rd
of December 1993, in contravention of the rule of law and in
contravention of my constitutional rights in terms of the Declaration
of Rights of the Constitution of Zimbabwe. The alleged discharge,
without power, was a nullity, an invalidity and an
ultra
vires
act that was in
contravention of my constitutional rights per the Declaration of
Rights of the Constitution of Zimbabwe. The alleged
discharge,
without power was either an act of fraud abetted by fraudulent
misrepresentation in subversion of the rule of law or an
act of
wanton, unmitigated and outrageous thoughtlessness in contravention
of my constitutional rights. The City Council of Mutare
never
discharged me. I am still a Senior Official of the City Council of
Mutare by contractual, legislative and constitutional
right.”







Similarly paragraphs 4 to 6 of
the founding affidavit read as follows:-






“4. The
instant application is made in terms of
Section
24 subsection (1) of the Declaration of Rights of the Constitution of
Zimbabwe
, for the
issue of declaratory orders regarding the various contraventions of
the Declaration of Rights in regard to my rights as
stated in this
application. I specifically apply for a declaratory order
confirming that my discharge by the Acting Mayor, on 3
December 1993,
was unconstitutional, unlawful, invalid, null and void
ab
initio
and ultra
vires
the Urban
Councils Act Chapter 214

and confirming my Constitutional right not to be discharged and
confirming my Constitutional right to reinstatement with rights to
arrear salary, benefits and interest a temporae morae on arrears from
3 December 1993 and confirming that the City Council of Mutare
never
discharged me.







5. With the greatest respect and
humility to the High Court and Supreme Court decisions per judgments
HH224/98 and SC 103/99 respectively,
my fundamental right to
protection of the law has been violated in contravention of sections
18(1) and 19(9) of
the Declaration of Rights of the Constitution of Zimbabwe
.






6. The
High Court and Supreme Court erred at law in that they used, a
repealed statute to determine my application to the High Court
for
the issue of a declaratory order.”









The application continues in
similar fashion for the next over one hundred pages. When the
matter was placed before me in Chambers
I had serious doubts as to
whether this application should be set down for hearing as it was
patently frivolous and vexatious.
(See s 24(4)(a) of the
Constitution). However, as the applicant was a self actor, I felt
that he should be given some latitude
in the hope that he might be
able to clarify the alleged contraventions of the declaration of
rights in respect to him at the hearing.
The matter was,
accordingly, set down for hearing. The second respondent was in
default. The first respondent did not file
its heads of argument on
time. The first respondent applied for condonation of its late
filing of the heads of argument. The
applicant opposed the
application. The reason advanced by the first respondent for not
filing the heads of argument on time was
that it felt that the
application was frivolous and vexatious and that it would not be set
down for hearing. In this regard they
relied on s 24(4) of the
Constitution which provides that this Court can determine an
application made in terms of s 24(1) of the
Constitution without a
hearing if it is of the view that such an application is frivolous
and vexatious. This explanation for the
failure to file heads of
argument is inadequate. While I accept the first respondent’s
contention that the case was frivolous
and vexatious has merit, the
matter was set down for a hearing. On 5 February 2004 the Registrar
of this court advised the parties,
including the first respondent
that this court would hear and determine this matter on 4 March 2004.
This was an unequivocal notification
that this court had decided to
hear the matter and the first respondent should have filed its heads
of argument accordingly and timeously.
The court accordingly
refused to grant the first respondent the condonation sought. If
the application had not been opposed the
court might have decided
otherwise.





At
the hearing of this matter the court invited the applicant to clarify
in what manner he was alleging the declaration of rights
was
contravened in relation to him. He submitted that the declaration
of rights was contravened in relation to him in the following
two
respects:







1. he was denied legal
representation at the disciplinary hearing while other employees of
the first respondent were accorded the
same at other similar
disciplinary hearings. He submitted that he was therefore
discriminated against contrary to s 23 of the Constitution
which
prohibits discrimination;





2. he
was denied protection of the law by the High Court and the Supreme
Court in that his case was determined in accordance with
a law that
had been repealed instead of the current or prevailing law.







I now wish to deal with the
issue of discrimination. The applicant does allege in his papers
that he was denied legal representation
at the disciplinary
proceedings. However the circumstances of such denial are not very
clear on the papers. But at no stage during
the long and tortuous
history of this litigation has the applicant ever alleged that he was
denied legal representation on the grounds
of race, tribe, place of
origin, political opinion, colour, creed or gender etc. He simply
alleges that his co-workers received
preferential treatment by being
allowed legal representation which was denied to him.





I
have no doubt that denial of legal representation to a party can form
the basis of setting aside of proceedings on review. I
am not
persuaded that, on the facts of this case, it can form the basis of a
constitutional challenge. The facts of this case do
not establish
that there was discrimination prohibited by s 23 of the Constitution.
The applicant sought to have the disciplinary
proceedings set aside
on review. The High Court refused to review the proceedings because
the applicant did not apply for such
a review timeously, that is,
within eight weeks of his dismissal. That decision was upheld by
the Supreme Court. Much of the
contents of the court application
and the submissions by the applicant are devoted to the merits of the
judgments of the High Court
and of the Supreme Court. The
Constitutional Court does not sit as an appeal court over the
judgments of the Supreme Court. This
court, sitting as the
Constitutional Court, does not have such jurisdiction. The only
relevant issue is the possible violation
of the declaration of rights
in relation to the applicant. The applicant has come nowhere near
establishing that s 23 of the Constitution
was violated in respect to
him.





The
other alleged ground of violation of the appellant’s constitutional
right was that the applicant was denied the protection
of the law.
According to the applicant the basis of the allegation is that the
High Court and the Supreme Court determined his
application for
review in accordance with a repealed section of the Urban Council’s
Act. It is quite clear from the papers that
both the High Court and
the Supreme Court concluded that the applicant’s original
application was in fact an application for review
and not an
application for a declarator as claimed by the applicant. That
determination did not depend on any statute repealed
or otherwise.
Having concluded that the applicant’s application before the High
Court was an application for review the High
Court further concluded
that such application was out of time. As already stated above in
terms of Rule 259 Order 33 of the High
Court Rules an application for
review has to be launched within 8 weeks of the termination of suit,
action or proceedings in which
the irregularity complained of is
alleged to have occurred. The court may, for good cause shown,
extend the time within which to
file such an application. The
applicant’s application, which the court concluded was a review,
was launched long after the termination
of the proceedings he sought
to have reviewed. The applicant was paid and accepted his terminal
benefits in December 1993. About
two-and-a-half years later, in
July 1996, he filed the application for a review of his dismissal.
In terms of the rules he should
have filed that application within 8
weeks of the determination. The High Court and, indeed, this court,
quite rightly refused
to grant condonation for the applicant’s
delay in filing the application for the review of the proceedings
leading to his dismissal.
In dismissing the applicant’s
application for review the High Court applied Rule 259 of the High
Court Rules. There is no
question of the above rule having been
amended. The High Court therefore did not, as alleged by the
applicant, decide the applicant’s
case on the basis of a repealed
law. That ground of challenge cannot succeed.





This
court application, as already stated, deals with the merits of both
the High Court and the Supreme Court’s previous judgment
in the
matter between the same parties. This court, as a Constitutional
Court, has no jurisdiction to sit as an appeal court over
Supreme
Court judgments. I will accordingly not address the applicant’s
submissions in that regard.





In
the result I am satisfied that this application is without merit and
it is hereby dismissed with costs. The first respondent’s
costs
in respect of the preparation of the heads of argument and appearance
at the hearing are disallowed. The first respondent
was in effect
in default having failed to file its heads of argument timeously and
condonation having been refused.








CHEDA
JA: I agree





ZIYAMBI
JA: I agree





MALABA
JA: I agree





GWAUNZA
JA: I agree