Cornelius Alwin Roodt and Anor v Hyab Engineering Limited and Ors (CAZ/08/98/2019) [2020] ZMCA 213 (29 January 2020)

Rl IN THE COURT OF APPEAL OF ZAMBIA HOLDEN AT LUSAKA CAZ/08/98/2019 (Civil Jurisdiction) BETWEEN: JACO JOHAN ROODT 2ND APPLICANT AND HYAB ENGINEERING LIMITED 1 ST RESPONDENT LOMBE MUTONO 1 sT INTERESTED PARTY MARTIN LOMBE MUTONO 2ND INTERESTED PARTY ATTORNEY GENERAL 2ND RESPONDENT Before the Honourable Lady Justice B. M. Majula, on the 29th day of January 2020. For the Applicants Mr N. Chanda of Nicholas Chanda and Associates For the 1st Respondent NIA For the 2 nd Respondent Mrs. J. Mazulanyika Assistant Senior State Advocate -Attorney General's Chambers. RULING Case Cited: 1. Chitala vs. The Attorney General ( 1995-199 7) ZR. 91 . R2 I was moved by an originating notice of motion for an ex-parte order of mandamus under Judicial Review. The application was made pursuant to Order 53, Rule 1 (2) of the Rules of the Supreme Court, 1999 edition. The applicants further seek the court to quash by certiorari the decision of the Director General of Immigration of 16th May 2019 in which he notified the applicants to leave Zambia. Further, by mandamus the relief sought is to compel the 2 nd respondent, through the Immigration Department, to renew the expired work permits of the applicants for next renewable period. The gist of the affidavit evidence as set out in the joint affidavit in support filed on 23rd July, 2019 is that they are South African Nationals who are resident in Zambia and have ordinary shares in the 1st respondent. That whilst there is an appeal before the Court of Appeal which is yet to be determined, the Director General of Immigration declined to renew work permits for the applicants which resulted in them being declared prohibited immigrants who are liable to be deported. It was contended that by this decision, the Director General of Immigration exceeded his powers, hence this application for an order for mandamus through Judicial Review. At the hearing of the application on 9 th December 2019, Mr Chanda placed full reliance on the documents filed in support of the application. He accordingly beseeched the court to grant the application. R3 It is settled law that before an applicant can proceed to commence judicial review, leave of the court must be sought as per the provisions of Order 53, Rule 3 of the Rules of the Supreme Court. The application for leave should be made to a High Court Judge and if dismissed, it can be renewed before an appellate court. According to Order 53 / 14 / 55 of Rule of the Supreme Court, the requirement that leave must be obtained is designed to: «prevent the time of the court being washed by busybodies with misguided or trivial complaints of administrative error, and to remove the uncertainty in which public officers and authorities might be left as to whether they could safely proceed with administrative action while proceedings for judicial review of it were actually pending even though misconceived.'' I also recall what was stated by the Supreme Court in the case of Chitala vs. The Attorney General 1 when it held that the purpose of the requirement for leave to commence judicial review is: "a. to eliminate at an early stage any applications which are either frivolous, vexations or hopeless; and b. to ensure that an applicant is only allowed to proceed to a substantive hearing if the court is satisfied that there is a case fit for further consideration n_ A perusal of the record herein reveals that this important stage of procedure was not complied with by the applicants. In view of the foregoing, this court, therefore, has no jurisdiction to entertain R4 the application which is not in compliance with the rules of Court. The net result is that the application for an ex-parte order of mandamus under the guise of judicial review is dismissed for being improperly before Court. Each party will bear its own costs . Delivered in Chambers on this 29th day of January 2020. ······ ···~ ···· ··· B . M . Ma[ula COURT OF APPEAL JUDGE