Online Reporter
Fidelis Munyoro
Chief Court Writer
HARARE businessman Mr Jayesh Shah secured a major legal victory in the Constitutional Court, winning the right to challenge a Supreme Court decision he claims violated his constitutional rights.
The presiding panel of judges — Justices Paddington Garwe, Rita Makarau, and Anne-Mary Gowora — delivered a judgment granting Shah’s application for direct access, marking another turn in the decades-long legal battle between Mr Shah and Professor Charles Nherera.
The ruling centred on whether the Supreme Court, in a previous decision, had erred in a way that struck at the heart of fundamental constitutional principles.
“This court cannot turn a blind eye to the irregularities that marred the trial court’s proceedings,” Justice Makarau stated in her judgment.
“The trial court wrongly believed itself bound by factual findings made by the Supreme Court in an interlocutory appeal, surrendering its role as an independent arbiter of justice.”
The case originates from corruption allegations dating back to the early 2000s, when Prof Nherera, then chairperson of the Zimbabwe United Passenger Company (ZUPCO), was accused of soliciting bribes from Mr Shah’s company, Gift Investments. Both men were arrested in 2005, though Mr Shah was granted immunity in exchange for testifying against Prof Nherera, who was convicted and served a two-year prison sentence. That conviction was later overturned, prompting Prof Nherera to sue Mr Shah for malicious prosecution.
After years of protracted litigation, the High Court initially dismissed Prof Nherera’s damages claim. But on appeal, the Supreme Court reversed that ruling, sending the case back to the trial court.
What followed was a trial that Justice Makarau described as being “conducted in a grossly irregular fashion,” with the trial judge deferring to the Supreme Court’s earlier remarks as binding factual conclusions.
The heart of Mr Shah’s argument before the Constitutional Court was that these irregularities violated his constitutional right to a fair hearing. He alleged that the Supreme Court’s decision to uphold the trial court’s ruling effectively validated a process riddled with procedural errors.
Justice Garwe, concurring with Justice Makarau’s findings, observed, “The trial court’s approach was not merely incorrect. It reflected a clear abdication of its duty to independently assess the evidence before it. Such an attitude undermines the foundational principle of judicial impartiality.”
At issue were three key findings by the Supreme Court: that the trial court was bound by its earlier factual conclusions; that evidence of corruption previously accepted by other courts was irrelevant; and that damages could be awarded without supporting evidence.
The Constitutional Court found these determinations troubling, particularly the notion that the trial court had been reduced to a passive observer in its own proceedings.
“The trial court repeatedly referred to a ‘prima facie case’ established by the Supreme Court, but never owned this conclusion as its own,” Justice Makarau said.
“The proceedings reflected a court that had relinquished its authority, leaving the parties to navigate what amounted to two separate trials.”
The decision to grant direct access was not taken lightly. The judges acknowledged that the threshold for reviewing Supreme Court rulings is high, given their finality in non-constitutional matters. However, they emphasised that no court is above constitutional scrutiny.
“The principle of finality cannot shield decisions that violate fundamental rights,” Justice Garwe stated.
The court’s ruling opens the door for Mr Shah to argue his case fully before a quorate bench, where the substantive issues will be debated in detail.
The judgment also highlighted the need for clarity in the law regarding when Supreme Court decisions can be reviewed.
“This Court must articulate a clear test for evaluating claims of constitutional violations arising from Supreme Court rulings,” Justice Garwe noted, calling for consistency and fairness in the administration of justice.
Justice Gowora, who had the privilege of reading the judgments penned by her esteemed colleagues, Justice Makarau and Justice Garwe concurred.
“Their reasoning resonates deeply with me, and I find myself in full agreement with their conclusions. Like them, I am firmly of the view that the applicant should indeed be granted leave to approach this Court directly,” she said.
