Court name
Supreme Court of Zimbabwe
Case number
SC 1 of 2008
Const. Application 9 of 2008

Mann v Republic of Equatorial Guinea (Const. Application No. 09/08 ) (SC 1 of 2008, Const. Application 9 of 2008) [2008] ZWSC 1 (29 January 2008);

Law report citations
Media neutral citation
[2008] ZWSC 1
















REPORTABLE (1)


Judgment
No. SC 1/08


Const.
Application No. 09/08








SIMON
FRANCIS MANN v





THE
REPUBLIC OF EQUATORIAL GUINEA








SUPREME COURT OF
ZIMBABWE


HARARE, JANUARY 30,
2008








J Samukange, for
the applicant





Ms F Ziyambi,
for the respondent





Before:
CHIDYAUSIKU CJ, In Chambers







This is an urgent Chamber application in which the applicant is
seeking the relief set out in the draft order. The draft order

reads in part as follows:



It is hereby ordered that:



1. Judgment in the appeal by the applicant in case No. HC CA 507/07
shall not be delivered pending the determination
of the appeal
against the judgment in case No. HC 462/08.



2. The appeal against the judgment in case No. HC 462/08 shall
be set down as a matter of urgency by the Registrar of this

Honourable Court.



3. The parties to the said appeal shall file heads of argument in
accordance with directions of the said Registrar.







4. Costs shall be costs in the cause of the appeal.”




After hearing submissions from counsel, I dismissed the application
with no order as to costs.






The facts giving rise to the urgent Chamber application are briefly
that the JUDGE PRESIDENT and MR JUSTICE PATEL heard
an
appeal from the magistrate's court some time in July 2007. In that
appeal the applicant was the appellant. It was an appeal
against a
judgment of the magistrate's court. After hearing submissions from
counsel, the learned Judges reserved judgment.
Some time in
December 2007 MR JUSTICE PATEL was appointed Acting
Attorney-General. Subsequent to MR JUSTICE PATEL’S

appointment as Acting Attorney-General, the High Court set down the
appeal for the handing down of judgment. Judgment was not
handed
down on the set down date following representations made to the Judge
President by the applicant. The matter was reset
down for the
handing down of judgment on 30 January 2008. The day before
the judgment was due to be handed down, the applicant
made an urgent
application to the High Court seeking an order to interdict the High
Court from handing down the judgment. HLATSWAYO J
dismissed
the application. I am advised that the reason for dismissal was
that the learned Judge was of the view that the applicant
should have
applied to MR JUSTICE PATEL for him to recuse himself.







Following the dismissal of the application by HLATSWAYO J, the
applicant launched two applications to this Court. The one
was a
Court application made in terms of s 24(1) of the Constitution
of Zimbabwe (“the Constitution”). The other
was this
Chamber application. I have already set out the relief sought in
the Chamber application. The relief sought in the
Court application
is:



It is hereby ordered that:



1. The hearing on the 26th of July 2007 before the Judge
President, Mrs Justice Makarau, and Mr Justice Patel is hereby set
aside.



2. That Mr Justice Patel is recused from hearing or handing down
judgment in the appeal under case number HC CA 507/07

between Simon Francis Mann and the Republic of Equatorial Guinea.



3. That a declaration that the High Court has no jurisdiction to
determine the applicant’s appeal as presently constituted
and
that the appeal should accordingly be reheard by a freshly
constituted Court of at least two Judges.



4. That the respondent pays costs.”







When I dismissed the urgent Chamber application with no order as to
costs, I indicated that reasons for judgment would follow and
these
are they.



The Chamber application does not state in terms of which rule of
the Supreme Court Rules it is being made. It would appear
the
Chamber application is being made on the basis that the Chamber
application relates to the appeal against the judgment of
HLATSWAYO J; alternatively, the Chamber application relates to
the Court application filed at the same time as this Chamber

application. The latter basis was merely argued and has no factual
basis in the founding affidavit. On that basis alone it
can be
safely dismissed, but I will deal with its merits. I will deal with
this contention first.





The Court application was made in terms of s 24(1) of the
Constitution, which provides as follows:



Section 24(1) of the Constitution provides as follows:



24 Enforcement of protective provisions







(1) If any person alleges that the Declaration of Rights has been,
is being or is likely to be contravened in relation to him
(or, in
the case of a person who is detained, if any other person alleges
such a contravention in relation to the detained person),
then,
without prejudice to any other action with respect to the same matter
which is lawfully available, that person (or that other
person) may,
subject to the provisions of subsection (3), apply to the
Supreme Court for redress.”











The applicant contends that his entitlement to due process,
guaranteed in terms of s 18 of the Constitution, will be
violated
if judgment in the matter is handed down. On the
applicant’s version of events, the alleged violation of the
Declaration
of Rights has arisen in proceedings of the High Court.
Where any question arises as to a contravention of the Declaration of
Rights in any proceedings in the High Court or in any court
subordinate to the High Court, the person presiding in that court
may,
and if so requested by any party to the proceedings shall, refer
the question to the Supreme Court unless, in his opinion, the raising

of the question is merely frivolous or vexatious.







The submission by Mr Samukange, for the applicant, that
the proceedings in the High Court were not proceedings because the
court was not properly constituted
is simply not tenable. What
constitutes proceedings in the High Court was defined by this Court
in the case of M Tsvangarai v R Mugabe and Ano
S-84-05, where the Court held that:



“(1) The word ‘proceedings’ in s 24(2) is a
general term, referring to the action or application itself
and the
formal and significant steps taken by the parties in compliance with
procedures laid down by the law for the purpose of
arriving at a
final judgment on the matter in dispute. There are proceedings in
being in the High Court from the moment an action
is commenced or an
application made until termination of the matter in dispute or
withdrawal of the action or application. There
was no need to limit
the very general words of s 24(2) by saying that the question as
to the contravention of the Declaration
of Rights arises only when
the court is actually sitting. The proceedings in the High Court
were still pending. Whilst the
request for the reference of the
question to the Supreme Court must be made to the judge whilst he is
actually sitting in court,
the question itself does not have to arise
when the court is sitting. It may arise on the pleadings or from
the circumstances
of the case. The applicant should have had the
application for reference of the question set down for hearing by the
judge.
(2) The argument that the judge would have become a judge in
his own cause had the request been made of him to refer the question

to the Supreme Court for determination ignores the fact that
compliance with the procedure prescribed in s 24(2) is
mandatory.
If the judge had, out of selfish interest and in bad
faith held that the raising of the question by the applicant was
merely
frivolous or vexatious, he would have infringed the
applicant’s right to the protection of the law guaranteed under
s 18(1).
The applicant would then have been entitled to apply
to the Supreme Court for redress in terms of s 24(1) of the
Constitution.
He would have discharged his duty to comply with the
procedure prescribed in s 24(2).”







On this definition, there can be no doubt that the alleged
violation of the applicant’s rights arose during proceedings
in
the High Court. The applicant should then have applied for a
referral in terms of s 24(2) of the Constitution.



Subsection (2) of s 24 of the Constitution sets out the
procedure to be followed when any question arises as to the

contravention of the Declaration of Rights in any proceedings in the
High Court. It provides as follows:



24 Enforcement of protective provisions







(2) If in any proceedings in the High Court or in any court
subordinate to the High Court any question arises as to the
contravention
of the Declaration of Rights, the person presiding in
that court may, and if so requested by any party to the proceedings
shall,
refer the question to the Supreme Court unless, in his
opinion, the raising of the question is merely frivolous or
vexatious.”,







It is not open to a party in proceedings in the High Court or a
subordinate court to apply to this Court in terms of s 24(1)
of
the Constitution except in the circumstances alluded to in
Tsvangarai’s case supra. Subsection (3) of
s 24 of the Constitution specifically prohibits such a
procedure. It provides as follows:






24 Enforcement of protective provisions







(3) Where in any proceedings such as are mentioned in subsection (2)
any such question as is therein mentioned is not referred
to the
Supreme Court, then, without prejudice to the right to raise that
question on any appeal from the determination of the court
in those
proceedings, no application for the determination of that question
shall lie to the Supreme Court under subsection (1).”







Apart from the explicit language of subss (2) and (3) of s 24
prohibiting the use of s 24(1) of the Constitution
for
approaching this Court directly in respect of violations of the
Declaration of Rights arising during proceedings of the High
Court
and subordinate courts, the cases of M Tsvangarai v R Mugabe
and Ano supra
, Mandadirwe v Minister of State 1986 (1) ZLR
1 and Jesse v Attorney-General 1991 (1) ZLR 121 make it very
clear that such a procedure is not permissible except where the
presiding officer violates
the applicant’s right in the process
of considering the application for referral.



In the light of the above authorities, the inescapable conclusion is
that the applicant’ Court application filed with this
Court is
a nullity and this Chamber application cannot be predicated on that
nullity.







The other basis for bringing this Chamber application is that an
appeal against the judgment of HLATSWAYO J is pending in
the
Supreme Court. This Chamber application is in relation to that
appeal.







The respondent, in response to this contention, averred that the
judgment of HLATSWAYO J was an interlocutory order. Leave
to
appeal against an interlocutory order is required in terms of
s 44(5) of the High Court Act [Chapter 7:06]. The
applicant has not obtained such leave. Accordingly, the purported
appeal is also a nullity. The applicant has not disputed
this
contention. On this basis, there is no appeal pending in this Court
against the judgment of HLATSWAYO J. This Court
cannot
therefore assume jurisdiction to hear this Chamber application on the
basis of a pending appeal. That ground also falls
away.







Finally, I wish to make the following observations -







The High Court is seized with this matter. It heard submissions
and reserved judgment and was about to deliver judgment when

applications to stop the handing down of judgment were launched. I
have serious doubts as to whether the High Court has the jurisdiction

to set aside its own proceedings and order the hearing of the appeal
de novo. I do no more than express serious doubts in
this regard because the matter has not been fully argued before me.
That issue
is therefore left open.







It also is apparent to me that the best way forward in the
interests of finalising this matter expeditiously is to allow the

proceedings in the High Court to proceed to finality. That is, to
allow the High Court to give its judgment in this matter.
Once
judgment is given, whichever party is aggrieved by that judgment can
take that judgment on appeal. In the event of the judgment
going
against the applicant, it is open to him to raise on appeal all the
issues he has raised relating to the constitutionality
or otherwise
of the judgment. The applicant is not being left without a remedy.
The dismissal of the Chamber application does
not in any way
prejudice the applicant. All that the applicant is being required
to do is to follow the correct procedure in
approaching this Court.







It was for the above reasons that the Chamber application was
dismissed with no order as to costs.















Byron Venturas & Partners, applicant's legal practitioners



Office of the Attorney-General, respondent's legal
practitioners