MINISTER OF JUSTICE, LEGAL AND PARLIAMENTARY AFFAIRS THE ATTORNEY GENERAL OF ZIMBABWE v HEAL ZIMBABWE and Others (39 of 2025) [2025] ZWHHC 39 (24 January 2025)

3 HH 39 - 25 HCH 4607/24 MINISTER OF JUSTICE, LEGAL AND PARLIAMENTARY AFFAIRS THE ATTORNEY GENERAL OF ZIMBABWE versus HEAL ZIMBABWE and HILTON CHIRONGA and ZIMBABWE HUMAN RIGHTS COMMISSION and PARLIAMENT OF ZIMBABWE HIGH COURT OF ZIMBABWE MAMBARA J HARARE; 23 & 24 January 2025 Opposed Application T S Musangwa, for the applicants C Hlongwana, for the 1st respondent R Matsikidze, for the 3rd respondent No appearances for 2nd & 4th respondents MAMBARA J: INTRODUCTION This judgment addresses an application for condonation for the late filing of the notice of opposition and heads of argument by the applicants. The applicants further seek the upliftment of the bar imposed due to such non-compliance. The application has been vehemently opposed by the first respondent. BRIEF BACKGROUND The applicants, represented by Ms T. S. Musangwa, failed to meet procedural deadlines due to the absence of their handling officer and miscommunication within their legal team. The default occurred in a case where the applicants initially indicated that they would abide by the High Court’s decision. Upon reassessment, however, the applicants decided to oppose the main matter, which centres on the constitutionality of Section 9(4)(a) of the Zimbabwe Human Rights Commission Act [Chapter 10:30]. This provision imposes prescriptive limits on complaints investigated by the Zimbabwe Human Rights Commission (ZHRC). At the hearing, the court intimated to Ms. C. Hlongwana, who represented the first respondent, that it would not be appropriate to refer the matter to the Constitutional Court as a default judgment. The court noted that the Constitutional Court requires the input of all parties to deal properly with the confirmation process. The court further highlighted that even when the Minister of Justice is not cited, the Constitutional Court routinely invites the Minister to make submissions on matters of constitutional significance. Thus, opposing the application serves no substantive purpose but delays proceedings. It is, in fact, the respondents who are more interested in the finalization of this matter, as they are alleging that Section 9(4)(a) is unconstitutional. Despite this intervention Ms Hlongwana decided to argue the matter to the end. THE APPLICANTS’ CASE The applicants advanced the following arguments: Explanation for the Delay: The delay was occasioned by the absence of Ms. Joyce Shumba, the officer handling the case, who was on official duty abroad. Upon her return, it became evident that the initial position to abide by the High Court’s decision was taken without the applicants' full understanding of the implications.National Interest: The main matter concerns the mandate of a constitutional commission and its impact on the promotion and protection of human rights. The applicants emphasized that substantive justice should take precedence over procedural lapses.Prospects of Success: The applicants submitted that Section 9(4)(a) of the ZHRC Act is a reasonable legislative measure aimed at ensuring efficient operations of the commission and preserving the integrity of evidence.Prejudice: The applicants argued that no irreparable prejudice would be suffered by the respondents if the bar was lifted, as any delays could be remedied by an appropriate order of costs. THE RESPONDENT’S CASE The first respondent advanced the following counterarguments: Procedural Non-Compliance: The applicants were barred under Rule 59(1) of the High Court Rules, 2021. The proper application should have been one for the upliftment of the bar, and the affidavit deposed to by Mrs. Chimbaru was deemed incompetent.Conflict with Constitutional Mandate: The 1st respondent argued that Section 9(4)(a) is inconsistent with Section 243 of the Constitution, which outlines the functions of the ZHRC. The statutory provision imposes unnecessary restrictions that undermine the commission’s constitutional mandate. ANALYSIS OF FACTS AND THE LAW 1. Explanation for Delay and Procedural Requirements Rule 59(1) of the High Court Rules, 2021, states: “A party barred in terms of these rules may not act or file pleadings without the court’s leave, which may only be granted on good cause shown.” The applicants’ explanation for the delay centres on administrative lapses and the absence of the responsible officer. While administrative inefficiencies are not excusable per se, Zimbabwean case law emphasizes that litigants should not suffer undue prejudice due to their legal representatives’ failures (see Soko v Chitakunye NO and Others 2018 (1) ZLR 184 (H). 2. Prospects of Success The constitutionality of Section 9(4) (a) is central to the main matter. Section 243 of the Constitution grants the ZHRC broad investigatory powers. However, Section 321(1) of the Constitution permits Parliament to regulate the commission’s operations through legislation. This interplay requires a delicate balance between legislative prescription and constitutional supremacy. The applicants argue that Section 9(4)(a) enhances administrative efficiency without unduly constraining the ZHRC’s mandate, a claim warranting judicial scrutiny. 3. Substantive Justice Over Procedural Compliance In Ganda v First Mutual Life Assurance Society 2005 (1) ZLR 37 (SC), the court held that procedural rules should not operate to defeat substantive justice. In this matter, the national interest and constitutional significance of the issues at stake justify the relaxation of procedural requirements under Rule 7 of the High Court Rules, which permits the court to make orders in the interests of justice. 4. Input from All Parties in Constitutional Matters As noted by the court, referring the matter to the Constitutional Court as a default judgment would undermine the comprehensive adjudication required in constitutional matters. The Constitutional Court’s practice of inviting the Minister of Justice to make submissions underscores the importance of a fully ventilated case record. Thus, opposing the application serves no meaningful purpose beyond delaying resolution. DISPOSITION Having analyzed the facts, submissions, and applicable law, this court finds that the applicants have established sufficient cause to warrant the granting of the application. The interests of justice necessitate that this matter proceeds on its merits to ensure comprehensive adjudication of the constitutional issues. IT IS HEREBY ORDERED THAT: The delay by the applicants in filing their notice of opposition and heads of argument in Case No. HCH 2001/24 is condoned.The bar operating against the applicants is hereby uplifted.The applicants’ notice of opposition and heads of argument are deemed to be properly filed.There shall be no order as to costs. Mambara J: …………………………………………… Civil Division of the Attorney General’s Office, applicants’ legal practitioners Tendai Biti Law, 1st respondent’s legal practitioners Matsikidze law, 3rd respondent’s legal practitioners 3 HH 39 - 25 HCH 4607/24 3 HH 39 - 25 HCH 4607/24 MINISTER OF JUSTICE, LEGAL AND PARLIAMENTARY AFFAIRS THE ATTORNEY GENERAL OF ZIMBABWE versus HEAL ZIMBABWE and HILTON CHIRONGA and ZIMBABWE HUMAN RIGHTS COMMISSION and PARLIAMENT OF ZIMBABWE HIGH COURT OF ZIMBABWE MAMBARA J HARARE; 23 & 24 January 2025 Opposed Application T S Musangwa, for the applicants C Hlongwana, for the 1st respondent R Matsikidze, for the 3rd respondent No appearances for 2nd & 4th respondents MAMBARA J: INTRODUCTION This judgment addresses an application for condonation for the late filing of the notice of opposition and heads of argument by the applicants. The applicants further seek the upliftment of the bar imposed due to such non-compliance. The application has been vehemently opposed by the first respondent. BRIEF BACKGROUND The applicants, represented by Ms T. S. Musangwa, failed to meet procedural deadlines due to the absence of their handling officer and miscommunication within their legal team. The default occurred in a case where the applicants initially indicated that they would abide by the High Court’s decision. Upon reassessment, however, the applicants decided to oppose the main matter, which centres on the constitutionality of Section 9(4)(a) of the Zimbabwe Human Rights Commission Act [Chapter 10:30]. This provision imposes prescriptive limits on complaints investigated by the Zimbabwe Human Rights Commission (ZHRC). At the hearing, the court intimated to Ms. C. Hlongwana, who represented the first respondent, that it would not be appropriate to refer the matter to the Constitutional Court as a default judgment. The court noted that the Constitutional Court requires the input of all parties to deal properly with the confirmation process. The court further highlighted that even when the Minister of Justice is not cited, the Constitutional Court routinely invites the Minister to make submissions on matters of constitutional significance. Thus, opposing the application serves no substantive purpose but delays proceedings. It is, in fact, the respondents who are more interested in the finalization of this matter, as they are alleging that Section 9(4)(a) is unconstitutional. Despite this intervention Ms Hlongwana decided to argue the matter to the end. THE APPLICANTS’ CASE The applicants advanced the following arguments: Explanation for the Delay: The delay was occasioned by the absence of Ms. Joyce Shumba, the officer handling the case, who was on official duty abroad. Upon her return, it became evident that the initial position to abide by the High Court’s decision was taken without the applicants' full understanding of the implications. National Interest: The main matter concerns the mandate of a constitutional commission and its impact on the promotion and protection of human rights. The applicants emphasized that substantive justice should take precedence over procedural lapses. Prospects of Success: The applicants submitted that Section 9(4)(a) of the ZHRC Act is a reasonable legislative measure aimed at ensuring efficient operations of the commission and preserving the integrity of evidence. Prejudice: The applicants argued that no irreparable prejudice would be suffered by the respondents if the bar was lifted, as any delays could be remedied by an appropriate order of costs. THE RESPONDENT’S CASE The first respondent advanced the following counterarguments: Procedural Non-Compliance: The applicants were barred under Rule 59(1) of the High Court Rules, 2021. The proper application should have been one for the upliftment of the bar, and the affidavit deposed to by Mrs. Chimbaru was deemed incompetent. Conflict with Constitutional Mandate: The 1st respondent argued that Section 9(4)(a) is inconsistent with Section 243 of the Constitution, which outlines the functions of the ZHRC. The statutory provision imposes unnecessary restrictions that undermine the commission’s constitutional mandate. ANALYSIS OF FACTS AND THE LAW 1. Explanation for Delay and Procedural Requirements Rule 59(1) of the High Court Rules, 2021, states: “A party barred in terms of these rules may not act or file pleadings without the court’s leave, which may only be granted on good cause shown.” The applicants’ explanation for the delay centres on administrative lapses and the absence of the responsible officer. While administrative inefficiencies are not excusable per se, Zimbabwean case law emphasizes that litigants should not suffer undue prejudice due to their legal representatives’ failures (see Soko v Chitakunye NO and Others 2018 (1) ZLR 184 (H). 2. Prospects of Success The constitutionality of Section 9(4) (a) is central to the main matter. Section 243 of the Constitution grants the ZHRC broad investigatory powers. However, Section 321(1) of the Constitution permits Parliament to regulate the commission’s operations through legislation. This interplay requires a delicate balance between legislative prescription and constitutional supremacy. The applicants argue that Section 9(4)(a) enhances administrative efficiency without unduly constraining the ZHRC’s mandate, a claim warranting judicial scrutiny. 3. Substantive Justice Over Procedural Compliance In Ganda v First Mutual Life Assurance Society 2005 (1) ZLR 37 (SC), the court held that procedural rules should not operate to defeat substantive justice. In this matter, the national interest and constitutional significance of the issues at stake justify the relaxation of procedural requirements under Rule 7 of the High Court Rules, which permits the court to make orders in the interests of justice. 4. Input from All Parties in Constitutional Matters As noted by the court, referring the matter to the Constitutional Court as a default judgment would undermine the comprehensive adjudication required in constitutional matters. The Constitutional Court’s practice of inviting the Minister of Justice to make submissions underscores the importance of a fully ventilated case record. Thus, opposing the application serves no meaningful purpose beyond delaying resolution. DISPOSITION Having analyzed the facts, submissions, and applicable law, this court finds that the applicants have established sufficient cause to warrant the granting of the application. The interests of justice necessitate that this matter proceeds on its merits to ensure comprehensive adjudication of the constitutional issues. IT IS HEREBY ORDERED THAT: The delay by the applicants in filing their notice of opposition and heads of argument in Case No. HCH 2001/24 is condoned. The bar operating against the applicants is hereby uplifted. The applicants’ notice of opposition and heads of argument are deemed to be properly filed. There shall be no order as to costs. Mambara J: …………………………………………… Civil Division of the Attorney General’s Office, applicants’ legal practitioners Tendai Biti Law, 1st respondent’s legal practitioners Matsikidze law, 3rd respondent’s legal practitioners