- DON NYAMANDE (2) KINGSTONE DONGA
CONSTITUTIONAL COURT OF ZIMBABWE
HARARE JULY 31 & AUGUST 1, 2015
L. Madhuku, for the applicants
I. Chagonda, for the respondent
APPLICATION FOR URGENT SET DOWN OF APPEAL TO CONSTITUTIONAL COURT
 On 23 July, 2015, the applicants filed a notice of appeal to the Constitutional Court against a judgment of the Supreme Court dismissing their appeal. This is an application for the appeal to be set down for hearing on an urgent basis.
 At the onset of the hearing of the application, I invited Mr Madhuku to address me on: whether the applicants have a right of appeal, in terms of the Constitution of Zimbabwe, from a judgment of the Supreme Court; and whether or not the applicants had made out a case on the papers, for an urgent hearing of the matter.
 Mr Madhuku submitted that the applicants derive their right of appeal from s 167(5)(b) as read with s 169 (1) of the Constitution. The provisions are set out hereunder. Great emphasis was placed on the underlined words.
“167 Jurisdiction of Constitutional Court
(5) Rules of the Constitutional Court must allow a person, when it is in the interests of justice and with or without leave of the Constitutional Court—
(a) to bring a constitutional matter directly to the Constitutional Court;
(b) to appeal directly to the Constitutional Court from any other court;
(c) to appear as a friend of the court.
169 Jurisdiction of Supreme Court
(1) The Supreme Court is the final court of appeal for Zimbabwe, except in matters over which the Constitutional Court has jurisdiction”.
 As I understand it, the submission was that sub s (5) (b) grants a right of appeal to the applicants in a case such as this where the alleged violation, by the Supreme Court, of the applicants’ constitutional right in terms of s 56(1) of the Constitution only became apparent after the judgment was handed down. In these circumstances, so it was submitted, the applicants could approach this Court directly on appeal.
 He further submitted, although this was denied by Mr Chagonda, for the respondent, that in his heads of argument before the Supreme Court, the constitutional issue based on a possible violation of s 56(1) of the Constitution was raised. In answer to the question as to why he had not proceeded in terms of s 175 (4) which allows him to request a referral of the issue to the Constitutional Court, he replied that s 175 (4) was not the only way of approaching the Constitutional Court and that since the violation was only apparent after the judgment was delivered, the applicants were entitled in terms of s 167(5) (b) to appeal directly to the Constitutional Court. As authority for this proposition he referred to the following South African cases:
NEHAWU V UNIVERSITY OF CAPE TOWN & ORS 2002(4) BLLR 311 (LAC);
Z.SIDUMO & ANOR V RUSTENBERG PLATINUM MINES LTD 2007 ZACC 22;
NATIONAL UNION OF METAL WORKERS OF SOUTH AFRICA V BADER BOP (PTY) LTD 2003 (3) SA 513 CC.
The first and last cases referred to are judgments in applications for leave to appeal which leave was granted and both appeals allowed. The second was in respect of an application to the Constitutional Court of South Africa. None of the judgments are of assistance in determining whether the applicants in casu have established a right of appeal to the Constitutional Court from a judgment of the Supreme Court.