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Fidelis Munyoro, Chief Court Reporter
The Constitutional Court has rejected Fairclot Investment’s bid to appeal, on constitutional grounds, a Supreme Court decision regarding a debt settlement of over $4,9 million in local currency.
The panel considering the application for appeal found it to have been made over a non-constitutional issue.
Generally a Supreme Court decision is a final decision unless the Constitutional Court agrees that there are constitutional issues involved, which is fairly rare at this stage.
Fairclot had sought to challenge the September 2023 Supreme Court judgment that allowed West Property Holdings Limited Zimbabwe to proceed with its Pomona City development without any legal issues, following a long-standing financial dispute between Augur Investments and Fairclot Investments over payment for a dual carriageway leading to Robert Gabriel Mugabe International Airport in Harare.
Fairclot argued that the Supreme Court’s decision in a non-constitutional matter had violated its fundamental rights as guaranteed by the country’s Constitution.
However, the Constitutional Court deemed Fairclot’s request “untenable and strange,” likely due to the fact that direct access to the Constitutional Court is typically only permitted in exceptional circumstances, as outlined in Section 167 of the Constitution.
In general, cases reach the Constitutional Court through a range of channels, including appeals from lower courts where judges in these courts have had to consider possible constitutional issues. So decisions from the High Court or Supreme Court can be appealed to the Constitutional Court where there is a peg in the other court’s judgment to hang a possible appeal.
However, in exceptional circumstances, individuals or companies can bring matters directly to the Constitutional Court.
And yesterday a bench of three the Constitutional Court judges, Justice Paddington Garwe, Justice Rita Makarau and Justice Anne-Mary Gowora, turned away the Fairclot bid for direct access to the court to quash a Supreme Court decision.
The judges agreed that the decision made by the Supreme Court was on a non-constitutional issue.
Writing the court judgment, Justice Garwe ruled that Fairclot had not shown that the Supreme Court, in coming up with that decision, violated its rights under Section 56 (1) and 69 (2) of the Constitution.
“No demonstrable conduct on the part of the court has been shown to have disabled it from determining the appeal matter that was before it in accordance with the requirements of the law,” said Justice Garwe.
“Accordingly, the intended application does not enjoy any prospects of success should leave for direct access be granted. It would, therefore, not be in the interests of justice to grant the applicant leave for direct access to this court.”
Justice Garwe noted that the relief that Fairclot sought in the event that direct access was granted was the setting aside of the Supreme Court decision and nothing else, not even a remittal of the matter for a trial de novo before a differently-constituted Supreme Court bench.
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