Source: The Herald – Breaking news.
Fidelis Munyoro
Chief Court Reporter
Businessman Farai Matsika’s bid to wrestle ownership of a chunk of Croco Motors shares has reached a dead end after the Constitutional Court ruled that the Supreme Court decision that he sought to impugn cannot be appealed.
Except when a constitutional issue is at stake, the Supreme Court is the final arbiter in the whole judicial system and its decisions cannot be appealed.
Mr Matsika has long standing legal battles with his uncle Moses Chingwena for a share of Croco Motors.
All his envisaged likely legal routes to get to his uncle’s empire were futile after the Supreme Court rejected a slew of applications for condonation of a late appeal, for postponement, for a larger appeal bench and for referral to the Constitutional Court.
When he finally managed to approach the Constitutional Court seeking leave to appeal against the decision of the Supreme Court, that court slammed the door for him with a devastating ruling this week by refusing to let him even plead his case to the Constitutional Court.
A three-judge Constitutional Court panel comprising Justice Anne Gowora, Justice Bharat Patel and Justice Ben Hlatshwayo sat to consider whether Mr Matsika had any grounds to have a hearing in the full Constitutional Court.
And the three rejected Mr Matsika’s application, ruling that the Supreme Court did not determine any Constitutional issue to warrant the intervention of the Constitutional Court.
So the Supreme Court decision was final and not appealable.
The court was constrained to find that it was not in the interests of justice that Mr Matsika and his company Fairgold Investments Pvt Ltd, be granted leave to appeal against the decision of the Supreme Court.
“The application, therefore, fails on that basis,” said Justice Gowora.
Mr Matsika approached the Supreme Court on the basis of the wrong provisions of the law, and so the application was improperly before that court. This made the proceedings a nullity.
In her judgment, Justice Gowora said that anything done contrary to the provisions of the law is a nullity and emphasised that the decision of the Supreme Court on the application for condonation and extension of time to note an appeal was final in nature.
Section 169 of the Constitution as read with S26 of the Supreme Court Act, both state that all decisions of the Supreme Court, including those of a single judge in chambers, in non-constitutional matters are final and not subject to appeal.
Only where the Supreme Court determines a constitutional issue, can anyone appeal to the Constitutional Court for a final determination.
“Because the Supreme Court in this matter did not determine any constitutional issue, the decision it rendered was final and not appealable,” said Justice Gowora.
Mr Matsika through his legal counsel Professor Lovemore Madhuku had argued that the Supreme Court erred in law and misdirected itself in not finding that under section 175(4) of the Constitution of Zimbabwe, a request for a referral of a constitutional issue to the Constitutional Court necessarily had to be in writing.
He also accused the Supreme Court for erring in law and that it had misdirected itself in dismissing the application for referral to the Constitutional Court, arguing it applied an incorrect test in determining whether the request was merely frivolous or vexatious.
The High Court originally ruled when settling the civil case over ownership that Mr Matsika used fabricated documents to try and win a 30 percent share of the company.
He decided to appeal, but handed in his paperwork late to the Supreme Court, which meant that the appeal could not be entertained and the original judgment stood.
To avoid a civil dispute carrying on for years, with all that entails when business and other financial decisions are made, Zimbabwean courts have tight deadlines in these matters.
In November 2021, Mr Matsika approached the Supreme Court to have his late filing of appeal condoned, which is possible in certain circumstances.
The single judge hearing that condonation application, Supreme Court judge Justice Chinembiri Bhunu, found that there were no grounds for condonation and actually went further in comments on the lack of honesty by Mr Matsika.
Not to be thwarted, he then appealed against that decision.
This was in time and so the usual three-judge panel that hears appeals, rather than applications on a process, assembled comprising Deputy Chief Justice Elizabeth Gwaunza, Justice Joseph Musakwa and Justice Hlekani Mwayera.
Mr Matsika’s case hit a snag early after Advocate Thabani Mpofu acting for Croco Holdings raised a preliminary point on the jurisdiction of the court in such a case.
The court after hearing arguments unanimously agreed with Adv Mpofu that it had no jurisdiction over the judgment of the judge of the Supreme Court and threw out the appeal.
Earlier, Mr Matsika also had three applications for the matter to be heard by five judges, for postponement, and referral to the Constitutional Court all tossed out for lack of merit
This seems to have brought him to the end of the legal journey. Croco is owned by Mr Matsika’s uncle Mr Chingwena and the two have been embroiled in an acrimonious legal dispute over the company’s shareholding structure.
In November 2021, Mr Matsika had his appeal against a High Court ruling that he had used fabricated documents in an attempt to wrestle a 30 percent stake in Croco Holdings thrown out by the Supreme Court for a late filing.
The businessman had approached the Supreme Court on urgent basis seeking condonation of late filing of appeal, but Justice Bhunu, sitting in his chambers, threw out the case for lack of prospects of success on appeal and criticised Mr Matsika’s sneaky conduct in engineering fraudulent documents to mislead the lower court.
Mr Chingwena and his co-respondents had opposed the application arguing that Mr Matsika was never a shareholder of Croco.
They accused Mr Matsika of relying on forged fraudulent documents and challenged him to prove how he had acquired the alleged company shares.
To make matters worse Mr Matsika filed two conflicting CR2 forms, which according to Justice Bhunu portrayed him as a dishonest devious person who was prepared to twist the truth in order to advance his nefarious cause.
The judge agreed with the High Court findings that Mr Matsika’s application was founded on material falsehoods based on fraudulent documents.
The feud between Mr Matsika and Mr Chingwena started in early 2015 after Mr Matsika opted to exit Croco Holdings, saying he felt crowded in decision-making by new senior executives hired by Mr Chingwena.
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