Streamsleigh Investments (Private) Limited v Autoband Investments (Private) Limited

Autoband Investments (Private) Limited launched spoliation proceedings in the magistrate's court to evict African Medical Investments (Private) Limited (AMI) from premises at No. 15 Lanark Road, Belgravia, Harare. Streamsleigh Investments (Private) Limited, which claimed to be the owner and occupier of the premises in its own right (not through AMI), was not cited as a respondent but filed papers in opposition. The magistrate granted a spoliation order evicting AMI and all those claiming occupation through AMI. Streamsleigh was evicted despite not being specifically named in the order. Streamsleigh applied to the High Court to set aside the magistrate's order, but the High Court dismissed the application. Streamsleigh appealed to the Supreme Court, which upheld the appeal and ordered Streamsleigh's restoration to possession. Autoband then noted an appeal to the Constitutional Court, claiming constitutional violations. When Streamsleigh attempted to execute the Supreme Court order, Autoband resisted on grounds that the noted appeal suspended the order. Streamsleigh then filed a Chamber application seeking a declaration that Autoband's notice of appeal was void and of no effect.

• Whether a single Judge of the Constitutional Court sitting in Chambers has jurisdiction to determine whether a matter raises a constitutional question
• Whether the notice of appeal to the Constitutional Court is valid and raises constitutional questions
• Whether the noting of an appeal to the Constitutional Court suspends execution of the Supreme Court order
• Whether eviction should proceed despite the noted appeal
• Whether the Supreme Court order infringed constitutional rights to equal protection and benefit of the law (section 56(1))
• Whether the Supreme Court order infringed property rights (section 71)

The application was referred to a Judge of the High Court for determination. Costs were ordered to be costs in the cause.

A single Judge of the Constitutional Court sitting in Chambers should not determine whether a notice of appeal validly raises constitutional questions, as this is a function more appropriately reserved for the Constitutional Court sitting as a full Bench. However, urgent matters arising from such appeals (such as whether execution should proceed pending appeal) may be referred to other appropriate courts for expeditious determination.

The Chief Justice noted that while it would be 'more appropriate' for the full Bench to determine the validity of the constitutional appeal, this was not necessarily stated as a matter of strict legal requirement. He also observed that there was an unprecedented procedural irregularity in having process of the Supreme Court issued by the Registrar of the High Court, as the Supreme Court does not issue writs. The Judge also implicitly recognized that the papers clearly established urgency regarding the eviction issue, suggesting that delay in resolving possession disputes may constitute sufficient urgency for expedited treatment.

This case is significant for clarifying the procedural boundaries of the Constitutional Court's jurisdiction when sitting in Chambers versus as a full Bench. It addresses the important question of when a single Judge in Chambers should decline jurisdiction in favor of the full Constitutional Court, particularly on questions concerning the validity of appeals and whether matters raise constitutional issues. The case also touches on the effect of noting an appeal to the Constitutional Court on execution of lower court orders, which is important for understanding the operation of constitutional appeals in Zimbabwe's court hierarchy.