Everjoy Meda v Maxwell Matsvimbo Sibanda and Others

The applicant was customarily married to the second respondent. During the marriage, immovable property (Stand No. 48 Dan Judson Road, Milton Park, Harare) was acquired and registered in the second respondent's name. The couple separated in 2001 and the second respondent moved out, but title remained in his name. In 2010, the second respondent entered into a business transaction with the first respondent involving timber cutting. The second respondent breached the contract, and the first respondent obtained a default judgment from the High Court. The first respondent then attached the property and obtained an order declaring it especially executable. The applicant opposed this application, claiming she was entitled to 50% share of the property. The High Court granted the order declaring the property especially executable. Instead of appealing, the applicant approached the Constitutional Court alleging violation of her right to property under section 71(3) of the Constitution. The same matter had previously been brought under case no. CCZ 31/15 and was struck off the roll.

• Whether the Constitutional Court had jurisdiction to overturn an extant High Court order in a constitutional application not alleging violation of the right to equal protection of law
• Whether the applicant should have pursued an appeal to the Supreme Court rather than a constitutional application
• Whether a matter properly before the court can be withdrawn after it has been set down for hearing
• Whether constitutional issues should be decided when other remedies are available
• Whether costs on a higher scale were justified

The application was dismissed with costs on the legal practitioner and client scale.

Where an applicant is dissatisfied with a decision of a lower court and competent relief could be granted by an appellate court, the proper remedy is an appeal rather than a constitutional application under section 85(1) of the Constitution. Courts should not decide constitutional issues where it is possible to decide the case on other grounds. Once a matter has been set down for hearing, it cannot be withdrawn without either the consent of all parties or leave of the court. A purported notice of withdrawal without such consent or leave is invalid.

The Court observed that section 85(1) of the Constitution allows litigants freedom of access to courts on questions of violation of fundamental human rights with minimal technicalities - a person only has to allege an infringement of a fundamental right for the court to be seized with the matter. Whether the allegation is subsequently established as true is a separate question from whether the matter is properly before the court. The Court noted that while it is rare to grant costs on a higher scale in constitutional matters, the conduct of bringing the same defective application twice justified such an award. The Court referenced both South African and United States Supreme Court jurisprudence on the principle of constitutional avoidance.

This case establishes important principles in Zimbabwean constitutional law regarding the proper use of constitutional applications versus ordinary appeals. It reinforces the principle that constitutional remedies should not be used to bypass normal appellate procedures when competent alternative remedies exist. The judgment also clarifies the principles governing withdrawal of matters after they have been set down for hearing, requiring either consent of all parties or leave of court. It demonstrates the court's willingness to award costs on a higher scale where litigants persist in bringing defective applications despite prior warnings.