Henry Mugabe v Auxillia Chiumburu N.O. and Attorney General Zimbabwe

The applicant was charged with contravening section 3(2) as read with section 3(3) of the Gazetted Land (Consequential Provisions) Act [Chapter 20:28] for remaining in occupation of gazetted land without state authority. When he appeared before the magistrate (the 1st respondent), he applied for his case to be referred to the Supreme Court in terms of section 24(2) of the Constitution of Zimbabwe. The magistrate dismissed the application on the ground that it was frivolous and vexatious. The applicant then brought a review application to the High Court challenging the magistrate's dismissal. The application was served on the 2nd respondent by delivering a copy to an officer at the 2nd respondent's office in Bulawayo. The 2nd respondent raised two points in limine: improper service and lack of jurisdiction of the High Court to review such decisions.

• Whether the High Court has jurisdiction to review a magistrate's decision made pursuant to section 24(2) of the Constitution of Zimbabwe
• Whether service of the application on the 2nd respondent was proper
• Whether constitutional matters arising under section 24 of the Constitution should be referred directly to the Supreme Court rather than the High Court

The application for review was dismissed with costs.

The High Court has no jurisdiction to review a magistrate's decision made pursuant to section 24(2) of the Constitution of Zimbabwe. Section 24(2) and 24(4) of the Constitution specifically and exclusively empower the Supreme Court to deal with constitutional references, and this constitutes a deliberate limitation of the inherent jurisdiction of the High Court. A party dissatisfied with a magistrate's determination that a constitutional reference is frivolous or vexatious must approach the Supreme Court directly for redress, not the High Court by way of review.

The court observed that it was unclear why the applicant chose the "long and winding route" of approaching the High Court when the Constitution affords expeditious redress through direct application to the Supreme Court under section 24. The court noted that the Supreme Court has dealt with such matters on an urgent basis when circumstances demand and has granted stays of proceedings where appropriate, citing Mukoko v Commissioner General SC-3-09 and Williams & Anor v Msipa SC-22-10. The court commented that the applicant should have withdrawn the application when the jurisdictional objection was raised and approached the Supreme Court directly. The court also noted that the objection regarding method of service became academic after upholding the jurisdictional objection and therefore did not need to be addressed.

This case reinforces the principle in Zimbabwean constitutional law that matters arising under section 24 of the Constitution must be brought directly to the Supreme Court and cannot be litigated through the High Court by way of review. It clarifies the jurisdictional limitations on the High Court in constitutional matters and emphasizes the constitutional design that important constitutional issues should be decided directly by the final court without protracted litigation. The case demonstrates the court's strict adherence to the constitutional framework for constitutional challenges and the deliberate limitation of the High Court's inherent jurisdiction in this specific constitutional context.