The applicant appealed a magistrate's court judgment to the High Court. The appeal was heard in July 2007 by the Judge President and Mr Justice Patel, who reserved judgment. In December 2007, Mr Justice Patel was appointed Acting Attorney-General. The High Court then set down the appeal for judgment to be handed down on 30 January 2008. The day before judgment was to be delivered, the applicant made an urgent application to the High Court seeking to interdict the handing down of judgment, which was dismissed by Hlatswayo J on the basis that the applicant should have applied to Mr Justice Patel to recuse himself. Following this dismissal, the applicant launched two applications to the Supreme Court: (1) a Court application in terms of s 24(1) of the Constitution seeking to set aside the hearing, recuse Mr Justice Patel, and declare the High Court had no jurisdiction; and (2) an urgent Chamber application seeking to prevent delivery of judgment in the appeal pending determination of the appeal against Hlatswayo J's judgment.
The urgent Chamber application was dismissed with no order as to costs.
Where an alleged violation of the Declaration of Rights arises during proceedings in the High Court, the mandatory procedure under s 24(2) of the Constitution requires the constitutional question to be referred to the Supreme Court by the presiding judge. Section 24(3) prohibits direct application to the Supreme Court under s 24(1) in such circumstances, except where the presiding officer violates the applicant's rights in the process of considering the application for referral. A Chamber application to the Supreme Court cannot be predicated on a purported appeal that is a nullity due to failure to obtain required leave to appeal an interlocutory order under s 44(5) of the High Court Act. 'Proceedings' in the High Court refers broadly to the action or application and all formal steps taken from commencement until termination of the matter.
The Chief Justice expressed serious doubts as to whether the High Court has jurisdiction to set aside its own proceedings and order a hearing de novo, though this issue was not fully argued and was left open. The Chief Justice also observed that in the interests of expeditious finality, the best approach was to allow the High Court to deliver its judgment, after which the aggrieved party could appeal and raise all constitutional issues on appeal. The dismissal of the Chamber application did not prejudice the applicant as he retained the right to appeal the final judgment and raise all constitutional challenges at that stage.
This case is significant in Zimbabwean constitutional and procedural law as it clarifies the mandatory procedure for raising constitutional questions that arise during High Court proceedings. It confirms that parties cannot bypass the s 24(2) referral mechanism and apply directly to the Supreme Court under s 24(1) of the Constitution, except in limited circumstances where the presiding judge violates rights in considering the referral request. The judgment reinforces the importance of following correct procedural channels and obtaining proper leave to appeal interlocutory orders. It also provides guidance on the broad definition of 'proceedings' in the High Court context and emphasizes that constitutional issues can be raised on appeal from a final judgment.