Firstmile Apartments (Livingstone Ave) (Private) Limited and Others v Alshams Global Ltd and Others

The first respondent (Alshams Global Ltd) initiated provisional sentence proceedings against the applicants (Firstmile Apartments and the Velas) in two separate matters (HCHC 405/24 and HCHC 361/24) based on notarised acknowledgements of debts. The applicants acknowledged the debts but failed to pay. Instead of defending on the merits, the applicants brought an application seeking a constitutional referral to the Constitutional Court, challenging the constitutionality of Rule 14 of the High Court Rules, 2021, which provides for provisional sentence procedures. The applicants argued that Rule 14 violates their right to a fair hearing under section 69 of the Constitution by requiring them to satisfy the judgment before arguing their case ("pay now, argue later"). The matters were consolidated and argued under HCHC 500/24.

• Whether the application for constitutional referral to the Constitutional Court should be granted
• Whether the request for referral was frivolous or vexatious within the meaning of section 175(4) of the Constitution
• Whether Rule 14 of the High Court Rules, 2021 (provisional sentence procedure) is unconstitutional for violating the right to a fair hearing under section 69 of the Constitution
• Whether the matter could be resolved on non-constitutional grounds without requiring constitutional interpretation

1. The application for constitutional referral of matters HCHC 405/24 and HCHC 361/24 is dismissed with costs. 2. The parties in matters HCHC 405/24 and HCHC 361/24 shall reset the respective matters for their respective hearings.

The binding legal principles established are: (1) An application for constitutional referral under section 175(4) of the Constitution will be dismissed as frivolous or vexatious where no genuine constitutional question has arisen and the matter can be resolved on ordinary legal grounds; (2) Rule 14 of the High Court Rules, 2021, governing provisional sentence procedures, is constitutional and does not violate the right to a fair hearing under section 69 of the Constitution; (3) The provisional sentence procedure adequately protects debtors' rights because when opposition is filed, the matter is rerouted to a trial process rather than proceeding unopposed; (4) A constitutional referral application is frivolous when it is manifestly groundless, devoid of merit, and clearly lacks seriousness; it is vexatious when raised to cause annoyance without bona fide belief in success; (5) Courts must apply the doctrine of constitutional avoidance and should not entertain constitutional questions where the dispute can be determined on non-constitutional grounds.

The court made several non-binding observations: (1) That in provisional sentence proceedings, a judge presides over the matter in the Unopposed Motion Roll, and where opposition is filed, it does not proceed but is rerouted to trial - indicating the procedure's protective mechanisms; (2) That the application was characterized as an abuse of court process, suggesting the court's view that constitutional challenges should not be used as delay tactics in straightforward debt matters; (3) That South African constitutional law authorities, while persuasive, do not automatically apply in Zimbabwe and each jurisdiction must conduct its own constitutional analysis; (4) The observation that costs should not necessarily arise in constitutional litigation was rejected by implication, as costs were awarded against the applicants; and (5) The court's statement that it was "in a perfect position to resolve the dispute between the parties without resorting to constitutional interpretation" suggests a preference for judicial economy and restraint in constitutional adjudication.

This case is significant in Zimbabwean constitutional and procedural law for several reasons: (1) It reinforces the threshold test for constitutional referrals under section 175(4) of the Constitution, confirming that courts must rigorously scrutinize referral applications to prevent abuse of process; (2) It affirms the constitutionality of provisional sentence procedures under Rule 14 of the High Court Rules, 2021, rejecting arguments that the "pay now, argue later" approach violates fair hearing rights; (3) It applies the doctrine of constitutional avoidance, holding that courts should resolve matters on non-constitutional grounds where possible; (4) It demonstrates judicial vigilance against dilatory tactics disguised as constitutional challenges in debt recovery proceedings; and (5) It distinguishes the Zimbabwean position from South African jurisprudence cited by applicants (Twee Jonge Gezellen case), asserting an independent constitutional analysis.