MATAMISA v MUTARE CITY COUNCIL (ATTORNEY-GENERAL INTERVENING) 1998 (2) ZLR 439 (S)

Flynote

Appeal — hearing — nature of — whether oral argument essential — Conduct of hearing

Constitutional law — Constitution of Zimbabwe 1980 — Declaration of Rights — s 24 — constitutional application to Supreme Court — dismissal without hearing — competence — when court may dismiss application without hearing — s 18 — right to fair hearing — D applicability to appeal hearings — oral argument — whether failure to hear oral argument amounts to failure to give a fair hearing

Costs — de bonis propriis — legal practitioner — practitioner bringing application which he must have known was frivolous

Legal practitioner — conduct and ethics — duty to adopt a disinterested approach

Headnote

The applicant had been dismissed from his position as town clerk of Mutare. He applied successfully to the High Court for reinstatement, but the City Council appealed. The appeal was upheld in the Supreme Court. The applicant alleged that he had not received a fair hearing and that the Supreme Court had already made up its mind about the matter. He brought a constitutional application before a differently constituted Supreme Court, seeking to have the previous proceedings set aside.

In dismissing this application without hearing the application:

Held, that judgments of the Supreme Court are neither appealable nor reviewable. They are final.

Held, further, that the legal practitioner had totally misunderstood the nature of appeal proceedings, which are different from trial proceedings. Before the appeal the appeal judges will have read the record. Usually, they will also have read the heads of argument. Time permitting, the judges will have researched the issues of law involved. One of the purposes of heads of argument is to shorten oral argument. Having read the heads of argument, the judges may then decide that it is not necessary to waste time by allowing counsel simply to read these out. The appeal court is at liberty to decide not to hear oral submissions which will not advance a party's case any further. Sometimes the appeal court.

may ask counsel to deal only with particular points. It may advise counsel that it does not want to hear him at all, because its prima facie view is that counsel's written argument is correct, and will then ask the other side to present its argument. The judges may well make comment during oral argument which indicated their prima facie views about the merits and demerits of the arguments being advanced. They will often put their views to counsel in order to give counsel an opportunity of persuading the court to change their perceptions. The Supreme Court is not obliged to discuss and dismiss or accept every argument by counsel. It decides the case on what it considers to be the real point, which point may not even have been raised by counsel. The parties may have missed a crucial point. The counsel may decide that some point raised by counsel is unimportant and that some point is crucial, provided that counsel have been given the opportunity to address the court on the issue. It most certainly cannot be said that a party has not been given a fair hearing simply because counsel for that party feels the court has missed the point or has not grasped the argument he has advanced.

Held, further, that there was absolutely no doubt that the applicant and his counsel had been given a fair hearing during the appeal proceedings.

Held, further, that s 18(9) applies to trial proceedings and not have the same application to appeal hearings. An appeal court does not reach a decision in the same way as a court of the first instance. The appeal court has before it the record, together with the court of the first instance, and the submissions of counsel made through written argument. The oral hearing is in reality indulgence which is as much for the benefit of the appeal judges as it is for the benefit of the litigants.

Held, further, that the application was totally without merit and was frivolous and vexatious. A legal practitioner has a duty towards the court as well as to his client. His legal duty towards the court requires that he adopts a disinterested attitude in a case and remains in a position to give impartial and objective advice to his client. The legal practitioner in the present case had become deeply personally involved in this application. It would have been far more appropriate for him to have sworn an affidavit in his own name and to have left it to another legal practitioner to submit argument in support of this application. If this had been done, it is doubtful that the case would have proceeded any further. The legal practitioner had come close to committing contempt of court by bringing this application. He had come close to crossing the line between fair and impermissible criticism of the court. The assertion that the Supreme Court had not given a litigant a fair hearing might be said to have imputed corrupt or dishonest conduct on the part of the judges in the discharge of their judicial office, or to have reflected in an improper and scandalous manner on the administration of justice by them. However, as the allegation formed part of legal proceedings, no matter how ill-conceived those proceedings were, the court was prepared to give the legal practitioner the benefit of the doubt as to whether he had acted unlawfully with the requisite intent for contempt of court.

Held, further, that the legal practitioner should be ordered to pay costs de bonis propriis as he had abused the legal process and had acted with mala fides and in a highly reprehensible fashion in bringing such a frivolous and vexatious application.