Ushewokunze Housing Cooperative Society Limited v Crest Breeders International (Private) Limited

The respondent was the registered owner of four immovable properties held under deed of transfer 4035/1986, including the Remaining Extent of Saturday Retreat Estate measuring 1,057.3819 hectares. Between 2001-2003, the Ministry of Lands attempted to compulsorily acquire the properties, during which time the applicant (a registered housing cooperative) and its members occupied some of respondent's properties. On 13 January 2015, the Ministry and respondent reached a Deed of Settlement confirmed by the Administrative Court, whereby the Remaining Extent of Saturday Retreat Estate was acquired, but respondent was allocated the unoccupied portion of 401 hectares and appointed sole developer thereof. The applicant applied to the Supreme Court for review of this consent order (SC 548/15). In the meantime, respondent began developing the property, prompting the applicant to seek an urgent interdict preventing respondent from interfering with applicant's occupation and development pending the Supreme Court review. A previous High Court order in HC 4416/2003 had declared the applicant's occupation of certain properties (New Cerney Township properties) unlawful.

• Whether the application was frivolous or vexatious
• Whether a litigant has the right to institute review proceedings directly before the Supreme Court in the first instance under section 25 of the Supreme Court Act
• Whether the interdict sought would perpetuate an illegality given the existing High Court order declaring applicant's occupation unlawful
• Whether the matter was urgent
• Whether the application was made in good faith
• Whether points in limine raised at hearing but not in opposing papers should be considered

The application was dismissed with costs on the ordinary scale.

No person has the right to institute review proceedings in the first instance before the Supreme Court or a judge of the Supreme Court under section 25 of the Supreme Court Act. The review jurisdiction conferred on the Supreme Court by section 25 is exercisable mero motu when an irregularity comes to the Court's attention, but does not create a right for litigants to make direct applications for review. An application is frivolous or vexatious when it is obviously unsustainable, manifestly groundless or utterly hopeless and without foundation. The court has inherent jurisdiction to dismiss such applications to prevent abuse of court process.

The court noted that had the applicant been serious and acting in good faith, it would have noted the anomalies in the description of the properties at inception, or at least sought to attend to them once they were pointed out by the respondent. The court declined to award costs on a higher scale despite the respondent's request, exercising its discretion that costs on the ordinary scale were appropriate in the circumstances. The court also observed that points in limine not raised in opposing papers can still be considered at the hearing provided they do not cause unfairness to the other party, particularly where they go to the root of the matter and involve issues that legal practitioners should have applied their minds to when deciding on their course of action.

This case reinforces the important principle of Zimbabwean appellate jurisdiction that the Supreme Court is primarily an appellate court with no original jurisdiction except when sitting as a Constitutional Court. It confirms that section 25 of the Supreme Court Act does not confer a right on litigants to institute review proceedings directly before the Supreme Court in the first instance - such review powers can only be exercised mero motu by the Court when irregularities come to its attention. The case also demonstrates the court's willingness to exercise inherent powers to dismiss frivolous and vexatious applications that constitute an abuse of court process, particularly where an application is premised on fundamentally unsustainable legal grounds and appears designed to harass rather than genuinely seek relief.