A CONSTITUTIONAL Court bench led by Justice Rita Makaru has granted former National Social Security Authority (Nssa) board chairperson Robin Vela permission to appeal a Supreme Court ruling which upheld a forensic audit report linking him to alleged corruption.
BRENNA MATENDERE
In March 2019, BDO Zimbabwe Chartered accountants, after having been contracted by Auditor-General Mildred Chiri, released a damning forensic audit report which implicated Vela on several cases of corruption.
The former Nssa boss filed an application for review of the audit report at the High Court and he won the matter after arguing that the findings were biased, incomplete and targeted at him in a witch-hunt exercise.
Chiri however approached the Supreme Court challenging the High Court’s ruling and it was duly set aside, implying that the audit report was upheld. The Supreme Court, in upholding the audit report, said it was basing its judgment on section 309 of the constitution.
However, Vela last year in June approached the Constitutional Court seeking leave to appeal against the Supreme Court ruling and on Monday this week Justice Makarau ruled in favour of the former Nssa boss.
Vela’s attorney, Advocate Method Ndlovu, confirmed the development in an interview.
“Yes, leave to appeal was granted at the ConCourt and the applicant (Vela) was given 10 days to file his appeal. I won’t comment (further) on the matter as the same is sub judice. I need to respect the proceedings pending the appeal in the apex court of the land. If I give any comment I will be in a way interfering and that is ethically impermissible,” he said.
The judgment number is CCZ 4/22 and the constitutional application number was recorded as CCZ40/22. Professor Lovemore Madhuku and Advocate Lewis Uriri together with Ndlovu constituted Vela’s legal team.
In court papers obtained by this application, Makarau said there was a need for provisions of the constitution to be looked at in the matter.
The judge reiterated that she was making an order for Vela to appeal against the Supreme Court ruling on the audit report on the basis that in determining a non-constitutional matter, the Supreme Court resorted substantively to the provisions of the constitution to resolve the dispute.
“It may have erred in this regard,” she said. In her detailed analysis of the court proceedings that led to Vela seeking leave to appeal against the Supreme Court ruling, Makarau said: “In casu, it is common cause that the cause of action before the High Court was not predicated on a provision of the constitution. It was rooted in administrative law in terms of which the applicant sought to have reviewed what he alleged was administrative conduct by the first respondent through the agency of the second respondent.
“Accordingly, the pleadings did not raise a constitutional matter. Put differently, the pleading before the High Court did not call upon that court to interpret, enforce or protect the provisions of the constitution.”
“Instead, the pleadings sought to establish a basis for having the audit report by the second respondent, under contract from the first respondent, reviewed and set aside. Because no such matter had been pleaded before it, it stands to reason that the High Court did not decide a constitutional matter. As is evident from its judgment, the High Court did not invoke any provisions of the constitution in arriving at its determination on the non-constitutional matter that was before i ….”
Justice Makarau said. Makarau added: “Further, the record of the appeal proceedings does not indicate that a constitutional question arose during the appeal hearing.
“Had one arisen, the Supreme Court would have been obliged to invoke the provisions of section 175 (4) of the constitution to refer the question arising for answering by this court. In the circumstances and in view of the fact that no constitutional matter was determined by the High Court, that no constitutional matter was the subject of appeal before the Supreme Court and that no constitutional matter arose during the appeal proceedings, the text of the constitution should not have been interpreted by the Supreme Court. And in the ordinary course 12 Judgment No. CCZ 4/22 Constitutional Application No. CCZ40/ 22 of constitutional litigation in this jurisdiction, no appeal should lie to this court.
“Regarding costs, there is no justification that any of the parties be mulcted with an order of costs. In the result it is ordered that: 1. The application for leave to appeal be granted with no order as to costs. 2. The applicant is to file his notice of appeal within 10 days of this order.”
Justices Barat Patel and Ben Hlatshwayo who also sat on the Constitutional Court bench to decide on Vela’s application concurred with Justice Makarau’s ruling.
