The Cold Chain (Private) Limited t/a Sea Harvest v Robson Makoni

In 2008, the respondent successfully sued the applicant for damages arising from a motor vehicle accident that occurred on 21 December 1999 involving a driver employed by the applicant. The High Court awarded damages in both Zimbabwe currency and Botswana currency. The applicant appealed to the Supreme Court and was partly successful in reducing the Botswana currency damages. The applicant paid the Botswana currency damages but did not pay damages awarded in Zimbabwe currency. Between the appeal hearing and judgment, Zimbabwe adopted a basket of foreign currencies (dollarization), rendering the Zimbabwe dollar valueless. The respondent applied to the High Court for conversion of the Zimbabwe dollar damages to United States dollars. The High Court declined jurisdiction on grounds that it was functus officio and that the matter was res judicata. The respondent appealed to the Supreme Court, which set aside the High Court's judgment and remitted the matter for determination, finding that the conversion application raised a new question and that the High Court had misapplied the principles of functus officio and res judicata. The applicant then sought leave to appeal to the Constitutional Court.

• Whether the Supreme Court's decision involved a constitutional matter warranting leave to appeal to the Constitutional Court
• Whether a constitutional matter must be raised and determined in the subordinate court for the Constitutional Court to have jurisdiction
• What constitutes a 'constitutional matter' under section 332 of the Constitution
• Whether reference to section 176 of the Constitution by the Supreme Court made the matter a constitutional matter
• Whether the applicant demonstrated reasonable prospects of success on appeal

The application for leave to appeal was dismissed with costs.

For the Constitutional Court to grant leave to appeal from a subordinate court, there must be a constitutional matter that was raised and determined in the subordinate court. A constitutional matter under section 332 of the Constitution requires an issue involving the interpretation, protection or enforcement of the Constitution. The constitutional question must be both directly involved in the subordinate court's decision and necessary for the disposition of the dispute between the parties. Where a subordinate court rests its decision on independent non-constitutional grounds (such as common law principles), mere reference to constitutional provisions does not convert the matter into a constitutional matter. The applicant bears the burden of establishing the direct involvement of the constitutional question in the subordinate court's determination.

The Court noted that the Supreme Court's reference to section 176 of the Constitution (giving superior courts inherent jurisdiction to protect and regulate their own processes and to develop common law in the interests of justice) was made after the ratio decidendi had been declared and was therefore obiter dictum. The Supreme Court's comment that 'in appropriate cases superior courts can develop the functus officio rule beyond the currently accepted exceptions' was not part of the ratio but rather an observation that the court's reasoning was not inconsistent with section 176. The Constitutional Court also cited with approval foreign jurisprudence from South Africa and the United States regarding the requirements for constitutional appeals and leave to appeal.

This judgment is significant in Zimbabwean constitutional jurisprudence for clarifying the threshold requirements for accessing the Constitutional Court. It establishes that: (1) mere reference to constitutional provisions by a lower court does not transform a matter into a constitutional matter; (2) a constitutional issue must be properly raised, directly involved, and necessary for the disposition of the dispute in the subordinate court; (3) the Constitutional Court will not grant leave to appeal where a subordinate court's decision rests on independent non-constitutional grounds; and (4) obiter dicta references to the Constitution do not satisfy the jurisdictional requirements under section 167(1) and rule 32(2) of the Constitutional Court Rules. The judgment provides important guidance on the Constitutional Court's role as the highest court 'in all constitutional matters' and reinforces that it decides 'only constitutional matters' as prescribed by the Constitution.