The Supreme Court is facing a fresh constitutional challenge over its handling of a US$10.7 million dispute between the Zimbabwe Consolidated Diamond Company (ZCDC) and Adlecraft Investments, after the Constitutional Court found grounds for the matter to proceed.
The Constitutional Court has allowed ZCDC to directly approach it for a ruling on whether the Supreme Court breached its constitutional rights to a fair hearing and access to justice when it dismissed the company’s appeal against a High Court order to pay US$10 718 373,51.
The ruling was delivered by Justice Rita Makarau, sitting with Chief Justice Elizabeth Gwaunza and Justice Bharat Patel. The judges raised concerns about whether the Supreme Court adequately dealt with key issues in the appeal, particularly ZCDC’s claim that the debt had been paid and that Adlecraft’s claim had prescribed.
ZCDC has been ordered to file its full constitutional application within 10 days.
Justice Makarau said an appeal court must explain the reasons behind its decision rather than simply agreeing with the findings of a lower court.
“Merely certifying the judgment as correct without more is, in my view, insufficient,” she said.
The case stems from a service agreement signed by ZCDC and Adlecraft in February 2016 for work at the diamond mining fields in Chiadzwa. Although the agreement expired the following year, the two companies continued working together until their relationship ended in April 2020.
Adlecraft claimed that US$4 344 965,67 remained unpaid as of December 31, 2018.
ZCDC, however, argued that the debt had been cleared through local currency payments made in August 2019. The company relied on Statutory Instrument 33 of 2019, which converted certain United States dollar obligations into local currency at parity.
Adlecraft rejected this explanation, maintaining that the payments cited by ZCDC covered other expenses.
After hearing evidence from both parties, the High Court ruled in favour of Adlecraft and ordered ZCDC to pay US$10 718 373,51, inclusive of interest calculated under the in duplum rule, which limits recoverable interest to the amount of the outstanding capital debt.
The court also ordered ZCDC to pay legal costs on the legal practitioner-and-client scale.
ZCDC appealed the decision, arguing that the debt had been settled and that the claim was prescribed. However, the Supreme Court dismissed the appeal.
In its latest ruling, the Constitutional Court questioned whether the Supreme Court had properly examined the evidence and the legal issues raised by ZCDC.
Justice Makarau said the appellate court was required to determine whether the High Court had correctly calculated the outstanding amount and properly applied the law relating to prescription.
She also pointed out that the parties had presented conflicting accounts and that the trial court had not made findings on the credibility of the witnesses.
“Where mutually destructive evidence is led on an issue, the court must weigh the probabilities arising from the evidence tendered and all the circumstances of the case to determine which of the two versions is more probable,” she said.
The Constitutional Court further questioned the Supreme Court’s treatment of payments made by ZCDC in May 2023 while the company was challenging the judgment.
ZCDC maintained that the payments were intended to prevent execution of the judgment while its appeal was pending and should not have been treated as an admission of liability.
Justice Makarau said the Supreme Court’s comments on the payments raised concerns about whether ZCDC had been given an opportunity to respond before the issue was considered against it.
The matter has previously been heard by the High Court, Supreme Court and Constitutional Court. During an earlier constitutional proceeding, the parties agreed to an order setting aside the Supreme Court’s initial decision and sending the appeal back for a fresh hearing before a different panel.
The Supreme Court subsequently dismissed the appeal again after rehearing the matter, leading to the latest constitutional challenge.
Justice Makarau said courts must provide clear reasons for their decisions so that litigants and the public can understand how conclusions are reached.
The Constitutional Court emphasised that its latest findings were preliminary and did not amount to a final determination that ZCDC’s constitutional rights had been violated.
The substantive application will decide whether the Supreme Court’s handling of the appeal breached the company’s constitutional rights. The court made no order as to costs.
Advocates Thabani Mpofu and Tawanda Zhuwarara, instructed by Sawyer and Mkushi, represented ZCDC. Adlecraft Investments was represented by Advocates Lewis Uriri and Mabel Tarugarira, instructed by Tarugarira, Sande Attorneys.
