Edition 2 of 2014

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DIRECT ACCESS TO THE CONSTITUTIONAL COURT
Right or Indulgence?
The old constitutional dispensation allowed a litigant
alleging the violation of a fundamental right to directly
approach the Supreme Court with relative ease. As
long as the matter was not frivolous or vexatious, and
complied with the procedural dictates, audience was
granted. See Matamisa v Mutare City Council (AG
Intervening) 1998 (2) ZLR 439 (SC). This state of
affairs was largely due to the low threshold set by
section 24 (1) and (4) of the old Constitution. In terms
of the new Constitution, direct access in constitutional
matters is granted in terms of its section 167 (5) (a). A
shrewd reading would reveal that section 167 (5) (a) is
not the reincarnation of section 24 (1) and (4) of the old
Constitution. In fact section 167 (5) (a) is a different
creature all together, a creature poised to devour a
number of direct constitutional applications filed by
unsuspecting legal practitioners who erroneously believe
that it is business as usual.
An astute analysis of section 167 (5) (a) of the new
Constitution would support the assertion that direct
access to the Constitutional Court is now more of an
indulgence than it is a right. Section 167 (5) (a) of the
new Constitution clearly states that direct access is
granted only when it is in the interests of justice to do so.
The term interests of justice is not delimited,
however, decisions from the South African
Constitutional Court are most instructive. Section 167
(5) (a) of our constitution is modelled on 167 (6) (a) of
the South African Constitution; save for the fact that
that the South African Constitution additionally requires
a litigant to first seek leave before approaching the
Constitutional Court directly.
Bearing in mind the fact that our Constitutional Court
sits at the apex of our judicial system, each direct
constitutional application invariably asks the said Court
to sit as a Court of first and last instance. Such a
circumstance is undesirable and in itself militates against
the interests of justice. This point is aptly accentuated in
Bruce and Another v Fleecytex Johannesburg CC
and Others 1998 (2) SA 1143 (CC) wherein at para 8
Chaskalson states: it is not ordinarily in the interests of justice
for a Court to sit as a Court of first and last instance, in which
matters are decided without there being any possibility of appealing
against the decision given. Experience shows that decisions are
more likely to be correct if more than one Court has been required
to consider the issues raised.
Considering the fact that section 171 (c) of our
Constitution confers constitutional jurisdiction on the
High Court it is incumbent on the litigant who seeks
direct access to the Constitutional Court to allege and
provide cogent and compelling reasons why the matter
was not brought before the High Court instead. see para
14 of HBR (Hola Bon Renaissance) Foundation v
President of the RSA and Others 201 (10) BCLR
1009 (CC). To a large extent, this explanation is a
condicio sine qua non to assessing whether it is in the
interests of justice to grant direct access.
JUDICIAL QUOTE
Every Court is the guardian of its own records, and master of its own practice.
per Tindal, C.J in Scales v. Cheese (1844) 12 M. & W. 687.


LEX LATA
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Normally the interests of justice will be better served by
approaching the High Court first. See also, The AParty
and another v Minister for Home Affairs and
Others; Moloko and Others v Minister for Home
Affairs and Another 2009 (6) BCLR 611.
Direct access is also unlikely to be granted in
circumstances were the facts underpinning the
constitutional matter are disputed or likely to be
disputed. The Courts have time and time again
reiterated that it is undesirable to deal with disputes of
fact in application proceedings: see Chasokela & Anor
v Institute of Chartered Accountants of Zimbabwe
HH-82-12. More on point, our Constitutional Court
recently made it clear in Douglas Muzanenhamo v
Officer in Charge CID Law and Order Harare & 7
Others CCZ 3/13 that the Constitutional Court is ill
suited to entertain matters that are plagued with disputes
of fact. For that reason the matter was referred to the
High Court. Consequently, where a direct application
contains contested or contestable facts direct access is
unlikely to be granted. In Van Der Spuy v General
Council Of The Bar Of South Africa and 3 Others
2002 (5) SA 392 Langa DCJ, at para 19, explains that it
would not be in the interests of justice for
Constitutional Court to consider matters that give rise to
factual disputes when sitting as a Court of first and final
instance.
This is not to say that the Constitutional Court will
never grant direct access in matters that contain factual
disputes. In Hekpoort Environmental Preservation
Society & Another v Minister of Land Affairs and
Others 1998 (1) SA 349 (CC) Ackermann J observed
that there may be cases where the circumstances are so
exceptional and the public interest, or the ends of justice
or good government, are of such overriding importance,
that the Court might be disposed to grant direct access,
notwithstanding material disputes of fact which cannot
be resolved without hearing oral evidence. However,
from the dicta it is clear that it is only in exceptional
circumstances will the Constitutional Court entertain a
matter afflicted with factual disputes.

It has been suggested in some quarters that direct access
to the Constitutional Court is an important component
of access to justice and goes a long way in reducing
costs and the delays concomitant with approaching a
lower Court with constitutional jurisdiction. The
argument seems to be predicated on a suggestion that
considering that the Constitutional Court has the final
say in all constitutional matters it would be imprudent
not to approach it directly. This line of reasoning was
rejected in Christian Education South Africa v
Minister Of Education 1999 (2) SA 83 (CC) wherein
it was observed that while the additional costs that
would be incurred and the delay that would result if
normal procedures were followed were relevant
considerations, they in themselves did not weigh
sufficiently to justify a departure from the normal
procedures.
From the above it is clear that direct access will be
granted in deserving cases. Moseneke & Others v The
Master and Another 2001 (2) SA 18 (CC) is an
example of such a case. In that matter the South African
Constitutional Court granted direct access for three
reasons, (i) the interests of justice required a speedy
unblocking of an administrative impasse which probably
affected thousands of families, many of whom might
have been in desperate need; (ii) the legislative provision
and the regulation that had motivated the Constitutional
challenge were so manifestly discriminatory that there
could be no doubt as to their unconstitutionality; it was
therefore not necessary for extensive evidence to be led
and evaluated (iii) the respondents in the matter
ultimately supported the matter. The confluence of all
these factors motivated the South African Constitutional
Court to grant direct access.
Evidently when one approaches the Constitutional
Court directly he has to show that the circumstances are
extraordinary and that the interests of justice are best
served by granting such access. While the prestige and
gravitas of the Constitutional Court may be alluring,
practitioners are urged to approach it with caution and
respect.
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POST DIVORCE MAINTENANCE
Alimony - disappeari ng remedy?
At common law one of the consequences of divorce is
that it puts an end to the reciprocal duty of support that
existed between spouses during the marriage: see S v
Simpson 1964 (1) SA 61 (N). However, strict
application of this clean break principle might well
cause great hardship and inequity particularly where one
spouse, during the subsistence of the marriage, has been
unable to build up an estate and has reached an age
where he or she is unable to realistically earn an
adequate income: see dicta of Mthiyane DP in Harlech-
Jones v Harlech-Jones 2012 (4) SA 164 (SCA). In
Zimbabwe this potentially iniquitous situation is
ameliorated by section 7 (1) (b) of the Matrimonial
Causes Act [Chapter 5:13] which provides for the
payment of post-divorce maintenance to a deserving
spouse.
It should be noted from the onset that section 7 (1) (b)
of the Matrimonial Causes Act [Chapter 5:13] does not
confer a right upon a spouse to post-divorce
maintenance; what it does is confer a discretion upon
the Court to grant such maintenance in appropriate
circumstances. The case of Chiomba v Chiomba 1992
(2) ZLR 197 (SC) marks a seismic shift in our Courts
view of post-divorce maintenance. In that case it was
made clear that a spouse cannot as of right claim post-
divorce maintenance. In Kangai v Kangai HH 52/07
Gowora J, relaying in the dicta in the Chiomba case,
states in no uncertain terms that A woman who has been
divorced is no longer entitled as of right to be maintained by her
former husband until her remarriage or death. A review of the
Zimbabwean authorities from Chiomba to Kangai on
the subject of post-divorce maintenance places credence
to the assertion that our Courts now much prefer the
clean break principle.
As post-divorce maintenance is not automatic, the
Courts have held that if a spouse seeks to claim such
maintenance he or she would have to provide the Court
with some reasonable justification for such relief: see
Rabvukwa v Rabvukwa 2004 (1) ZLR 530 (H). To
put it more succinctly, the trend in our Courts is to
require a spouse to justify the need for maintenance and
the duration for such maintenance. Whilst remarriage
and death will bring any order of maintenance to an end
a spouse is required to show that in the first place he or
she requires to be maintained, for how long and at what
sum. The Courts will not accept thumb-suck figures: see
Matongo v Matongo HH 14/12.
As pointed out by Steyn J in Van Wyk v Van Wyk 1954
(4) SA 594 (W) a Court will only grant maintenance if it
is proven on a balance of probabilities that the party
who asks for maintenance is in need of it. This places
an obligation on the party claiming post-divorce
maintenance to aver facts that substantiate the claim.
This point is further amplified by Chitakunye J in
Mhlanga v Mhlanga HH 70/11 wherein it was held
that post-divorce maintenance cannot be awarded on
mere say so but must be claimed, pleaded and proved.
It is now a discernable trend that our Courts will not
grant maintenance to spouse who is in a position to
support himself or herself. See Kangai v Kangai supra.
At the very most the Court may be convinced to grant
maintenance to assist a spouse to to tide over until he or
she settles down: see Mhute v Mhute HB 96/07. In
Dicks v Dicks HH 61/11 the defendant was granted 4
months post-divorce maintenance to accord her time
reorganise her life. What is clear is that the days of
indefinite post-divorce maintenance are far behind us.
Comparatively, the Namibian Courts have also moved
away from indefinite post-divorce maintenance orders.
In DK v DK 2010 (2) NR 761 (HC) the Court only
granted the wife maintenance for 4 years in spite of the
fact that the Court had found that she was clearly in
need of maintenance and justice and equity demanded
such maintenance to be paid.
In summation, and as advice for future claimants, it may
be best to take heed Moorhouse Js remarks in the
Canadian case of Knoll [(1969) 2 QR 580 at 584; 6
DLR (3rd) 201 at 205] wherein he states The marriage
certificate is not a guarantee of [post-divorce] maintenance.
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ATTORNEY CLIENT COSTS
The When and Why
The most quintessential description of attorney client
costs can be found in the case of Nel v Waterberg
Landbouwers Ko-operatieve Vereeniging 1946 AD
597 wherein after an exhaustive review of the concept
of attorney and client costs, TINDALL JA stated at 607
that: "The true explanation of awards of attorney and client costs
not expressly authorised by statute seems to be that, by reason of
special considerations arising either from the circumstances which
give rise to the action or from the conduct of the losing party, the
Court in a particular case considers it just, by means of such an
order, to ensure more effectually than it can do by means of a
judgment for party and party costs that the successful party will not
be out of pocket in respect of the expense caused to him by the
litigation"
There is a marked distinction between party and party
costs and attorney and client costs (also referred to as
legal practitioner and client costs in Zimbabwe). As
lucidly explained in Loots v Loots [1974] 1 All SA 132
(E) one may regard party and party costs as being those
costs which have been incurred by a party to legal
proceedings and which the other party is ordered to pay
to him, and attorney and client costs as being those
costs which an attorney is entitled to recover from his
client for the disbursements made by him on behalf of
his client and the professional services rendered by him,
and again speaking generally, such latter costs often
include items not recoverable on a party and party bill,
and the amounts recoverable for certain items may well
be considerably higher than those recoverable on similar
items in the party and party bill.
Generally, in order for a litigant to successfully claim
costs as between attorney and client scale, which is
punitive, he must show that the other party deserves to
be punished for its behaviour. The Court has a
discretion in awarding costs at any scale provided that
the party so applying proves to the Court that he indeed
so deserves the costs at that scale. See Mahembe v
Matambo 2003 (1) ZLR 148(H).
While in the ordinary course of events one has to ask
the Court to grant costs at an attorney client scale, there
is authority for the proposition that the Courts have
power to grant such costs even in the absence of an
express prayer for them. See Fein v. Rabinowitz 1933,
C.P.D. 289 at p. 292. However, as is pointed out in the
aforementioned case the circumstances have to be extra
ordinary before such an order, namely an order for
attorney and client costs, will be made without
prompting.
In Borrowdale Country Club v Murandu 1987 (2)
ZLR 77(H) Mtambanengwe J makes it clear that the
Courts will not lightly accede to a prayer for an award of
costs on a legal practitioner and client scale and such an
award will be granted where the unsuccessful partys
conduct has been completely unreasonable and
reprehensible. The fact that the Courts will not grant
attorney client cost lightly is in keeping with a long line
of authorities on the subject. In Wholesale
Manufacturers & oversees Trading Co. (Pvt) Ltd v
Rhodesia (Pvt) Ltd 1973 (1) RLR 348 is was stated
that attorney and client costs should be awarded with
circumspection and reluctance.
From the authorities it is clear the Courts grant
attorney and client costs as a mark of disapproval of a
litigant's conduct and because it would be unjust that
such party's opponent be out of pocket as a result of the
conduct. However, as clarified in Mudzimu v
Chinhoyi Municipality & Another 1986 (1) ZLR 12
(H) not every misdeed on the part of the losing party
should be sanctioned by the imposition of costs at the
higher scale. Attorney and client costs should be
reserved for circumstances where the unsuccessful
litigant's conduct has amounted to an abuse of the
Court process, and his actions have thereby brought
about additional and unwarranted expense to the
innocent party. See Guard-Alert (Pvt) Ltd v
Mukwekwezeke & Anor HH-405-12 as well as
Zimbabwe Online (Pvt) Ltd v Telecontract (Pvt)
Ltd HH-206-12.
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Furthermore, an order for attorney and client costs can
only be granted after the conduct complained has been
thoroughly investigated. See Orr v Solomon, 1907 T.S.
at p. 282. If the facts cannot be easily ascertained or
there is insufficient detail then it may be desirable for
the Court to be cautious and reserve judgement until
such time all the evidence is brought before it. See
Seegers v Gazaz (Tvl) (Proprietary) Limited and
another [1997] 2 All SA 445 (D).
Additionally it is desirable that before attorney and
clients costs are awarded against a party that party be
given due notice and opportunity to meet the case made
against him or her. See Peter Cooper & Company
(Previously Cooper and Ferreira) v De Vos [1998] 2
All SA 237 (E)
In conclusion it is important to highlight that in
awarding costs, the Courts have discretion, which
discretion is to be exercised judicially upon a
consideration of all the facts; it is also a matter of being
fair to both sides. See Gelb v. Hawkins, 1960 (3) S.A.
687 (A.D) at 694A. It is for this reason the Courts
should be cautious to punish the right party. In many
instances it is the misconduct of legal representatives,
and not the litigant, that attracts the ire of the Court. In
such circumstances it would be unfair to compound the
problems of a losing litigant by ordering punitive costs
against him when his only crime is choosing bad counsel.
See rationale behind Court refusing to grant costs on a
punitive scale in Hall v Van Tonder & Another [1980]
3 All SA 436 (C).
JUDICIAL MANAGEMENT

With the current economic downturn quite a number
of companies now find themselves in real financial
difficulty. While it may be tempting to rely on divine
intervention, their interests may be better served if
they resort to the business rescue mechanism that is
judicial management. Judicial management provides
companies with a statutory moratorium against legal
action from its creditors. This circumstance offers the
troubled enterprise some respite while the Court
appointed judicial manager nurses the business back to
viability. See sections 299 to 314 of the Companies
Act [Chapter 24:03] which lay out the mechanics of
judicial management.
As highlighted in Feigenbaum & Another v
Germanis No & Other 1998 (1) ZLR 286 (HC)
judicial management is an extraordinary procedure
only made available to a company by the Court in
special circumstances and for statutorily prescribed
purposes. Judicial management is only ordered when
the Court is satisfied that there is a reasonable
possibility that, if placed under judicial management, a
company which is unable to pay its debts will be able
to do so in full, meet its obligations and become a
successful concern.
From the foregoing description of judicial
management it is clear that it is a quite different
species from liquidation. This point was made clear in
the case of S. Cohen Ltd v Johnson & Johnson 1970
SA 332 (SLSA) wherein Muller J said: The purposes of a
liquidation order are entirely different from those sought to be
achieved by an order for judicial management. In the one case,
the very object is to wind up the affairs of a company and effect
its dissolution; in the other the object is just the opposite, namely,
to avoid liquidation where there is a chance of the company
surmounting its difficulties by proper management, namely,
management by a person appointed as judicial manager to
conduct the affairs of the company subject to the supervision of
the Court. Quoted with approval in Feigenbaum &
Another v Germanis No & Other supra and most
recently Elgate Investments (Pvt) Ltd & Others v
The Master & Others HH-57-11
It is settled law that the object of a judicial
management order is not an experiment of jiggling
around to see whether any judicial manager might be
able to turn around a distressed companys fortunes at
Edition 2 of 2014
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his or her leisure. Judicial management is designed to
avoid the drastic remedy of winding up when a
company is in financial difficulties due to
mismanagement or some other cause, and there is a
reasonable probability that under carefully controlled
management it will surmount its difficulties. per
Mutema J in Zimbabwe International Trade Fair
Company v Viking Plastics (Pvt) Ltd and Another
HB 83/13.
It was pointed out in Norman Kennedy v Norman
Kennedy Ltd; Judicial Managers Norman
Kennedy Ltd No 5 Reinforcing Steel Co Ltd &
Others [1947] 2 All SA 35 (C) that the machinery of
judicial management is relatively novel in our common
law and it is readily intelligible that in practice
circumstances may sometimes arise which are not
directly covered by the sections of the statute devoted
to judicial management. It is for this reason that the
Courts are vested with wide powers in regard to
matters presenting themselves in judicial management
applications. This however, is not to imply that the
Courts will readily depart from the statutory dictates
outlined in the provisions of the Companies Act. An
apt example is the Courts refusal to depart from the
strict letter of the law in Zimbabwe International
Trade Fair Company v Viking Plastics (Pvt) Ltd
and Another supra.
Only companies whose fortunes have been negatively
affected by mismanagement and can be rescued
qualify to be placed under judicial management. For
that reason an applicant in a judicial management
application has to show (1) reasonable probability that
respondent will be able to survive and pay debts
within a reasonable time, and (2) that it is just and
equitable to grant order. Put differently the onus is on
the applicant to show that the companys misfortunes
can be turned around by a judicial manager. This onus
can only be discharged inter alia through the factors to
be considered by the Court which are listed in
paragraphs (a) (e) in section 305 (1) of the
Companies Act [Chapter 24:03]. See Ellingbarn
Trading (Pvt) Ltd v Assistant Master of the High
Court and Peoples Own Savings Bank HB 82/13.
It is also noteworthy to highlight that the Courts are
generally reluctant to grant judicial management orders
against wishes of major creditors see Le Roux Hotel
Management (Pty) Ltd & Another v E Rand (Pty)
Ltd 2001 (2) SA 727 (C).
Furthermore it is not proper to seek judicial
management on the ground that such procedure will
make a company be more profitable. A judicial
management order is only appropriate where internal
control mechanisms and domestic remedies were
entirely ineffectual in overcoming its internal problems
which give rise to the mismanagement. Where the
entity can reasonably use its own mechanisms to deal
with the mismanagement then it would not be proper
to order judicial management. See Makhuva &
Others v Lukuto Bus Service (Pty) Ltd & Others
1987 (3) SA 376
It is important that the applicant who seeks judicial
management does so in good faith. It is improper to
seek the protection afforded under judicial
management in order to frustrate the legitimate efforts
of creditors to recover debts. To seek judicial
management for any other purpose other than the
rescue of a mismanaged enterprise is tantamount to
abuse of process. This point was made in Ellingbarn
Trading (Pvt) Ltd v Assistant Master of the High
Court and Peoples Own Savings Bank supra.

The effects of judicial management are discussed in a
number of cases and it is important to highlight a few
salient points from the authorities. While the judicial
manager takes over the day to day affairs of the
company in distress the proprietors remain the owners
or shareholders of the company under provisional
judicial management, and that alone entitles them to
involvement in any matter related to the operations of
their judicially managed company. See Elgate
Investments (Pvt) Ltd & Others v The Master &
Others supra.
The most important effect of judicial management is
the moratorium granted an ailing enterprise. It is this
moratorium which is most attractive and lends the
Edition 2 of 2014
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Authors Contact Details
Address : PO Box CH 860 Chisipite
Harare Zimbabwe
Email : zhuwarara@lawyer.com
Phone : +263 773 853 536
PLEASE NOTE
The information and any commentary on the law contained in
this publication is designed for lawyers and provided free of
charge. The publication aims to inform and generate
discussion and debate amongst legal practitioners. While
every reasonable effort is made to make the information and
commentary accurate and up to date legal practitioners are
still urged to do their own research and form their own
opinions. Any part of this publication may be reproduced as
long as the author is acknowledged and informed.

Tawanda Zhuwarara
LLBS (UZ)







procedure open to abuse. Gwaunza JA in Shagelok
Chemicals (Pvt) Ltd v International Finance Corp
Ltd & Ors S-124-02 explains that during the period of
judicial management, all actions, proceedings and
executions of process against the company are stayed.
The expectation is that during judicial management,
conditions are created that would enable the company
to pay off its debts. There would thus be no
immediate payment of the debts. It is this safe harbour
that many find attractive and often draws unfounded
applications for judicial management. Those who
choose to misuse judicial management are warned that
the law reports are littered with adverse costs orders
and even orders to wind up that have been motivated
by the misuse of the procedure.
END