The applicants (Minister of Justice, Legal and Parliamentary Affairs and the Attorney General) failed to meet procedural deadlines for filing their notice of opposition and heads of argument in a constitutional matter. The delay was caused by the absence of their handling officer, Ms. Joyce Shumba, who was on official duty abroad, and miscommunication within their legal team. The applicants initially indicated they would abide by the High Court's decision, but upon reassessment decided to oppose the main matter, which concerns 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). The applicants were barred under Rule 59(1) of the High Court Rules, 2021, and sought condonation for late filing and upliftment of the bar.
1. The delay by the applicants in filing their notice of opposition and heads of argument in Case No. HCH 2001/24 is condoned. 2. The bar operating against the applicants is hereby uplifted. 3. The applicants' notice of opposition and heads of argument are deemed to be properly filed. 4. There shall be no order as to costs.
In constitutional matters of national importance involving the mandate of constitutional commissions and fundamental rights, substantive justice takes precedence over procedural non-compliance. Where a constitutional matter requires referral to the Constitutional Court for confirmation, the court should ensure full participation of all parties, particularly the Minister of Justice, rather than proceeding by default judgment. Courts have discretion under Rule 7 of the High Court Rules, 2021 to grant condonation and uplift bars where: (1) an explanation for delay is provided (even if based on administrative failures); (2) the matter raises issues of constitutional significance and national interest; (3) there are prospects of success on the merits; and (4) no irreparable prejudice would result to the opposing party. Procedural rules should not operate to defeat substantive justice, following the principle in Ganda v First Mutual Life Assurance Society 2005 (1) ZLR 37 (SC).
The court observed that it would not be appropriate to refer a constitutional matter to the Constitutional Court as a default judgment, noting that the Constitutional Court requires input from all parties to deal properly with the confirmation process. The court further noted that the Constitutional Court routinely invites the Minister of Justice to make submissions on matters of constitutional significance even when not cited as a party. The court commented that opposing the condonation application served no substantive purpose but merely delayed proceedings, particularly as it was the respondents themselves who were seeking a determination that Section 9(4)(a) was unconstitutional. The court intimated that the respondents had more interest in the finalization of the matter than in opposing the condonation application.
This case demonstrates the Zimbabwean courts' approach to balancing procedural compliance with substantive justice, particularly in constitutional matters of national importance. It confirms that procedural rules should not operate to defeat substantive justice, especially where constitutional issues require comprehensive adjudication. The judgment reinforces the principle that constitutional matters require full participation of all relevant parties, including the Minister of Justice, and that referring such matters to the Constitutional Court as default judgments would undermine proper constitutional adjudication. It illustrates the court's discretion under Rule 7 of the High Court Rules to make orders in the interests of justice, and shows judicial willingness to condone procedural delays where administrative failures by legal representatives would otherwise prejudice litigants in matters of significant public interest.