Court name
Supreme Court of Zimbabwe
Case number
SC 45 of 2007
Civil Application 276 of 2006

Nherera v Lilian Kudya N.O and Another (276/06) (SC 45 of 2007, Civil Application 276 of 2006) [2007] ZWSC 45 (17 October 2007);

Law report citations
Media neutral citation
[2007] ZWSC 45













REPORTABLE (39)


Judgment
No. SC 45/07


Civil Application No.
276/06








CHARLES MUCHEMWA
NHERERA v





(1) LILIAN
KUDYA N.O. (2) THE ATTORNEY-GENERAL N.O.








SUPREME COURT OF
ZIMBABWE


HARARE, OCTOBER 18,
2007








J Mandizha, for
the applicant





No appearance for the
first respondent





G Butau-Mocho,
for the second respondent






An application in terms of section 25 of the Supreme Court of
Zimbabwe Act [
Cap. 7:13]







Before CHIDYAUSIKU  CJ, In Chambers, in terms of s 25
of the Supreme Court of Zimbabwe Act






After hearing
submissions by both counsel in this matter, I dismissed the
application and indicated that reasons for judgment would
follow.
The following are my reasons for judgment –





The notice of
application for review reads in part as follows:






“NOTICE OF AN APPLICATION FOR REVIEW TO A JUDGE OF THE SUPREME
COURT IN TERMS OF THE SUPREME COURT ACT, AS READ WITH PARTS II AND
III
OF THE SUPREME COURT RULES



_____________________________________________________






TAKE NOTICE THAT the applicant hereby applies for the review
of the proceedings of the Regional Court, sitting at Harare, via
CRB R404/2006, on
the grounds, inter alia, that - …”.







Thereafter the notice proceeds to set out in some detail the grounds
for review upon which the application is based.





In support of the
notice, the applicant deposed to a lengthy affidavit in which he sets
out, again in some detail, his criticisms
of the judgment of the
regional magistrate.






The applicant was charged with contravening s 3(1)(a)(i) of the
Prevention of Corruption Act [Cap. 9:16] in the regional
magistrate's court. The applicant pleaded not guilty but was found
guilty after a long trial.






Upon his conviction,
the applicant applied to a Judge of the High Court for bail pending
appeal. The application for bail was
dismissed on the grounds that
the appeal had no prospects of success.





Following the refusal
to admit him to bail, the applicant launched this application for
review.





The second respondent
opposed the application and filed a document headed “RESPONDENTS’
RESPONSE TO APPLICATION FOR REVIEW
”, which reads as follows:






“1. It is respectfully submitted that the application is not
properly before this Honourable Court.





2. The Supreme Court
Rules cited by the applicant do not provide for the making of an
application for review of a magistrate’s decision
by this
Honourable Court whilst bypassing the High Court.





3. The High Court has
the same review powers as this Honourable Court. The fact that the
High Court heard the applicant’s application
for bail pending
appeal does not necessarily mean that it cannot exercise its review
powers on the same matter. The provisions
which apply in
applications for bail pending appeal are quite different from those
for review proceedings.





4. It is further
submitted that section 25 of the Supreme Court Act
[Chapter 7:13] does not give any right to any accused
person to institute any review in the first instance before the
Supreme Court.





5. In the premises the
respondents (sic) pray that the application be struck off the
roll.





DATED AT HARARE THIS
9
th DAY OF OCTOBER 2006”.







I pause here to make the following observation –






Where a party, the
respondent, wishes to oppose an application, he/she/it should file a
notice of opposition, supported by an opposing
affidavit. To simply
file a document headed “The respondent’s response” reveals an
appalling lack of appreciation of Court
procedure and the Rules of
this Court. I would urge counsel for the second respondent to
familiarise himself with the Rules and
procedure of this Court.





Be that as it may, it
is quite clear that the second respondent is raising a point in
limine
, namely that it is not competent for the applicant to make
an application for review of the proceedings of the regional
magistrate’s
court directly to a Judge of the Supreme Court.





It appears ex
facie
that the application was made in terms of s 25 of the
Supreme Court Act [Cap. 7:13] (hereinafter referred to as
“the Act”), as read with Parts II and III of the Supreme Court
Rules.





A perusal of Parts II
and III of the Supreme Court Rules reveals that they do not provide
for an application for review by this
Court. The notice does not
cite the specific rule in terms of which it is made. I do not
believe there is such a rule.





The application also
purports to be made in terms of s 25 of the Act.





Section 25 of
the Act provides as follows:



“25 Review powers





(1) Subject to this
section, the Supreme Court and every judge of the Supreme Court shall
have the same power, jurisdiction and authority
as are vested in the
High Court and judges of the High Court, respectively, to review the
proceedings and decisions of inferior courts
of justice, tribunals
and administrative authorities.





(2) The power,
jurisdiction and authority conferred by subsection (1) may be
exercised whenever it comes to the notice of the
Supreme Court or a
judge of the Supreme Court that an irregularity has occurred in any
proceedings or in the making of any decision
notwithstanding that
such proceedings are, or such decision is, not the subject of an
appeal or application to the Supreme Court.





(3) Nothing in this
section shall be construed as conferring upon any person any right to
institute any review in the first instance
before the Supreme Court
or a judge of the Supreme Court, and provision may be made in rules
of court, and a judge of the Supreme
Court may give directions,
specifying that any class of review or any particular review shall be
instituted before or shall be referred
or remitted to the High Court
for determination.”






A proper reading of
the above section reveals that the section provides for the following
–






(a) it confers review jurisdiction on the Supreme Court and every
Judge of the Supreme Court;







(b) the review jurisdiction conferred on the Supreme Court and every
Judge of the Supreme Court is of the same level as the High
Court or
a Judge of the High Court and is over inferior courts, tribunals and
administrative authorities;







(c) the review jurisdiction is exercisable by the Supreme Court
and/or every Judge of the Supreme Court mero motu when an
irregularity comes to its/his/her attention;







(d) in terms of s 25 of the Act, no person has a right to
institute review proceedings in the first instance in the Supreme
Court; and







(e) the section provides for the making of rules for review by the
High Court and also for the Supreme Court or any Judge of the
Supreme
Court to remit a matter for review to the High Court.






It is quite clear that s 25 of the Act does not confer on an
applicant the right to apply to the Supreme Court or a Judge
of the
Supreme Court for the review of proceedings of a regional
magistrate's court in the first instance. Section 25(3) of
the
Act is very explicit in this regard.





However, the Supreme
Court or a Judge of the Supreme Court can review such proceedings
mero motu in terms of s 25(2) of the Act. Indeed this
Court had occasion to deal with this point in the case of The
Chairman Zimbabwe Electoral Commission and Anor v Roy Leslie Bennet
and Anor
SC 48/05, where ZIYAMBI JA had this to say at
pp 5-6 of the cyclostyled judgment:






“It appears to me that the effect of subsections (2) and (3)
of s 25 of the Supreme Court Act is that although the Supreme
Court may correct an irregularity in proceedings or in the making of
a decision which comes to its attention, not necessarily by
way of
appeal or application, no person has the right to institute any
review in the first instance before this Court. Thus it
is not open
to a party aggrieved by proceedings in a lower court to apply
directly to the Supreme Court on review for redress.
This much is
clear from the wording of s 25(3) of the Supreme Court Act.





The Supreme Court is
an appellate court. It has no original jurisdiction except when it
sits as a Constitutional Court by virtue
of s 24 of the
Constitution of Zimbabwe (‘the Constitution’). The powers
conferred on the Supreme Court by s 25(1)
of the Supreme Court
Act are, therefore, to be exercised as part of its appellate
jurisdiction. This view is, in my judgment, emphasised
by the fact
that the legislature has made the provisions of subsection (1)
‘subject to’ the rest of the section, that is,
subsections (2)
and (3).





Section 25(2)
confers additional jurisdiction which may be exercised when it comes
to the notice of the Supreme Court or a Judge
of that Court that an
irregularity has occurred in proceedings not before it on appeal or
application. Thus s 25(2) deals
with irregularities in respect
of which no appeal or application is before the Supreme Court and the
review is undertaken at the
instance of the Supreme Court and not of
any litigant. Reviews of such irregularities would, but for the
provisions of s 25(2),
fall outside the jurisdiction of the
Supreme Court acting in terms of its appellate jurisdiction or
sitting in terms of s 24
of the Constitution. This view is
emphasised by s 25(3) which states that s(ubss) 25 (1) and
(2) must not be construed
as giving a right of review at first
instance.”






The learned JUDGE OF
APPEAL further concluded at p 7 of the cyclostyled judgment:






“However, lest it
should be thought that litigants have, because of the provisions of
s 25(2), the right to approach the Supreme
Court directly in
order to obtain redress for perceived irregularities, s 25(3)
was enacted to correct any misconception that
a litigant may approach
this Court directly for review. Thus the Act expressly prohibits
any attempt to approach the Supreme Court
as a court of first
instance in an application for review.





It is clear from the
above that the intention of the legislature was to ensure that the
Supreme Court remains the final Court of
Appeal. The application
before us is one for review at first instance – the very thing
which is prohibited by s 25(3).
In the premises, I agree with
the submission advanced on behalf of the first respondent, namely,
that this application was contrary
to statute.”









I agree with the learned Judge’s conclusion or interpretation of
s 25 of the Act.






Accordingly, this
application could not succeed.





Before concluding I
wish to make the following observations –





I find it rather
unusual that this Court or a Judge of this Court is conferred with
jurisdiction to adjudicate on an irregularity
that has come to
its/his/her attention, but is barred from adjudicating on the same
irregularity if attention to that irregularity
is brought to the
Court or the Judge by one of the affected parties through an
application for review. It would also appear to
me that in terms of
s 25 of the Act the Supreme Court has no review jurisdiction in
respect of any irregularity in High Court
proceedings except in the
process of hearing an appeal. In my view, this is unsatisfactory
and needs redress.
















Mandizha & Co, applicant’s legal practitioners


Civil Division of
the Attorney-General’s Office
, second respondent's legal
practitioners