Constitutional Rights re: Access to Courts, Legal Literacy, Judicial Independence, Impartiality, Dignity and Authority

HH78-02 : CONSTANCE PANGETI vs THE GRAIN MARKETING BOARD
Ruled By: MAKARAU J

This is an application for review brought in terms of Order 33 of the High Court Rules. The facts of the matter are not in dispute. They are as follows:The applicant joined the respondent in 1990 as a typist. This appears to have been on a temporal basis, for, in ...

This is an application for review brought in terms of Order 33 of the High Court Rules. The facts of the matter are not in dispute. They are as follows:

The applicant joined the respondent in 1990 as a typist. This appears to have been on a temporal basis, for, in 1992, she was confirmed as a permanent employee of the respondent. On some date in 1991, the applicant, or someone purporting to be her, filled out an employment form in which it was represented that the applicant had attended Lord Malvern High School between 1977 and 1980 and had passed three subjects at "O" Level. The form was not signed nor dated.

It is pertinent to note here, that, the applicant did not deny the respondent's averment that it was the applicant herself who filled out the form.

On 18 November 1999, the respondent's Personnel Manager requested the applicant to furnish proof of her qualifications. This, the applicant failed to do. She was then charged with misconduct before a disciplinary committee. The charges that were preferred against her were communicated to her by a letter dated 15 June 2000 that read, in part, as follows:

"RE MISCONDUCT CHARGES

1. Insubordination - wilful and unreasonable disobedience of a lawful order from a superior. Category I section I.

2. Theft, fraud, forgery, involvement in bribery, misappropriation, falsification of documents. Category I section 3.

3. Incitement, intimidation, indulging in disorderly behaviour or activities inconsistent with the express or implied conditions of his/her contract of employment. Category 1 section 5.

In the letter dated 18th November 1999, from the Human Resources Manager, you were advised that the Chief Executive had requested that you submit proof of the 3 "O" Level passes that you had claimed to possess on joining the Board in 1991, and also in the interviews of 1996, by 26th November 1999. You, however did not submit these or offer an explanation by the due date.

The Regional Personnel Officer (Northern) then wrote to you on 4th January 2000, reminding you to respond in writing to the Chief Executive's request by 12th January 2000; which she set as the new deadline. However, you did not respond in writing as had been required. Your failure to respond as required is considered to be insubordination."

The Disciplinary Committee found her guilty of the alleged act of misconduct and recommended that her employment be terminated.

The applicant appealed against this decision.

In accordance with the provisions of the respondent's Code of Conduct, her appeal was noted to the Chief Executive in accordance with the respondent's Code of Conduct who dismissed the appeal.

The applicant then filed the above application for review.

The applicant alleged, as her grounds for review:

(i) Firstly, that the Disciplinary Committee that sat to hear her matter was not properly constituted; and

(ii) Secondly, that the decision of the respondent to dismiss her is grossly unreasonable.

The application was duly opposed.

In opposing the application, the respondent raised three preliminary issues:

(i) Firstly, the respondent argued, that, the applicant has approached the wrong forum for relief.

The respondent contended that the applicant ought to have noted an appeal to the Labour Relations Tribunal in terms of section 101(7) of the Labour Relations Act [Chapter 28.01].

The issue of whether or not, in labour issues, this court has concurrent jurisdiction with the Labour Relations Tribunal has exercised this court before. In my view, GILLESPIE J has put the issue to some rest in Zikiti v United Bottlers 1998 (1) ZLR 389. I can do no better than quote from the learned judge. This is what he had to say:

" The particular point concerning the bringing of review proceedings in the High Court, in connection with an employment dispute not yet resolved in a lower authority, is generally raised as an instance of a suggested obligation to exhaust domestic remedies before approaching this court.

The Labour Relations Act does not expressly require that the domestic or statutory procedures and remedies be exhausted before an approach is made to this court.

The question whether an intention to this effect is to be necessarily implied from the legislation has therefore exercised the court on occasion. It would appear, from the authorities, that, in employment disputes the court does not hold its common law jurisdiction in principle to be ousted or suspended pending the exhaustion of domestic remedies."

In my view, the point made by GILLESPIE J is that the court will not ordinarily close its doors to any litigant who is entitled to relief from it, but, in the exercise of its inherent jurisdiction to regulate and control its proceedings so as to prevent an injustice or abuse of its process, the court may withhold its jurisdiction.

A caution is however sounded in the judgment that the courts should sparingly exercise this equitable discretion to withhold its jurisdiction, as the courts of law should be open to all.

I agree with this view.

The jurisprudential basis supporting this view is obvious and has its foundation in the universally acclaimed right of every one to an effective remedy by the competent national tribunals for acts violating rights granted him or her by the laws of the land: Article 8 of the Universal Declaration of Human Rights (1948).

In the matter before me, no reason was advanced as to why I should withhold the court's jurisdiction. It has not been shown that recourse to the machinery set up under the Labour Relations Act will confer a more effective remedy to the applicant.

I therefore decline the invitation to withhold my jurisdiction in the matter.

HH84-10 : ALBERT MATAPO and OTHERS vs MAGISTRATE BHILA and THE ATTORNEY GENERAL
Ruled By: UCHENA J

In the case of Take Save Trading CC Ors v Standard Bank of South Africa Ltd 2004 (4) SA 1 (SCA) HARMS JA..., said:“Everyone is entitled to a fair trial and that includes the right to a hearing before an impartial adjudicator. This common law right ...

In the case of Take & Save Trading CC & Ors v Standard Bank of South Africa Ltd 2004 (4) SA 1 (SCA) HARMS JA..., said:

“Everyone is entitled to a fair trial and that includes the right to a hearing before an impartial adjudicator. This common law right is now constitutionally entrenched. Present a reasonable apprehension of bias, the judicial officer is duty bound to recuse him or herself. The law in this regard is clear, having been the subject of recent judgments of both this court and the Constitutional Court, and does not require any restatement. It is nevertheless convenient, for present purposes, to quote the following extracts from a Constitutional Court judgment for purposes of emphasis and because they are particularly germane to this case:

'The question is whether a reasonable, objective, and informed person would, on the correct facts, reasonably apprehend that the judge has not or will not bring an impartial mind to bear on the adjudication of the case, that is, a mind open to persuasion by the evidence and the submissions of counsel.

At the same time, it must never be forgotten, that, an impartial Judge is a fundamental prerequisite for a fair trial and a judicial officer should not hesitate to recuse herself or himself if there are reasonable grounds on the part of the litigant for apprehending that the judicial officer, for whatever reasons, was not or will not be impartial.

That is one side of the coin. The other is this:

A criminal trial is not a game where one side is entitled to claim the benefit of any omission or mistake made by the other side, and a judge's position, in a criminal trial, is not merely that of an umpire to see that the rules of the game are observed by both sides. A judge is an administrator of justice, he is not merely a figure head, he has not only to direct and control the proceedings according to recognised rules of procedure, but to see that justice is done.

The same applies to civil proceedings: a judge is not simply a 'silent umpire'. A judge is not a mere umpire to answer the question 'how's that?''

LORD DENNING once said:

'Fairness of court proceedings requires of the trier to be actively involved in the management of the trial, to control the proceedings, to ensure that public and private resources are not wasted, to point out when evidence is irrelevant, and to refuse to listen to irrelevant evidence.'

A supine approach towards litigation by judicial officers is not justifiable either in terms of the fair trial requirement or in the context of resources.

One of the oldest tricks in the book is the practice of some legal practitioners, whenever the shoe pinches, to withdraw from the case (and more often than not to re-appear at a later stage), or, of clients to terminate the mandate (more often than not at the suggestion of the practitioner), to force the court to grant a postponement because the party is then unrepresented.

Judicial officers have a duty to the court system, their colleagues, the public and the parties to ensure that this abuse is curbed by, in suitable cases, refusing a postponement. Mere withdrawal by a practitioner or the mere termination of a mandate does not, contrary to popular belief, entitle a party to a postponement as of right.

A balancing act by the judicial officer is required because there is a thin dividing line between managing a trial and getting involved in the fray. Should the line, on occasion, be overstepped, it does not mean that a recusal has to follow or the proceedings have to be set aside. If it is, the evidence can usually be re-assessed on appeal, taking into account the degree of the trial court's aberration.”

I entirely agree with HARMS JA's comments on the judicial officers' responsibilities in the management of cases that come before them for trial or in preparation for trial. I would only add that this equally applies to magistrates, who, in fact, preside over more cases than judges.

The need for firm control of proceedings is called for as a supine approach will result in avoidable backlogs.

The need for efficient court management by judicial officers must however give in to the delivery of quality justice, which must be seen to be done.

In short, a judicial officer must be firm and fair, allowing genuine applications for postponement, and, turning down those made for dilatory purposes....,.

The words of advice quoted by HARMS JA…, in Take & Save Trading CC & Ors v Standard Bank of South Africa Ltd 2004 (4) SA 1 (SCA) must constantly remind us that:

“It must never be forgotten that an impartial judge is a fundamental prerequisite for a fair trial and a judicial officer should not hesitate to recuse herself or himself if there are reasonable grounds on the part of the litigant for apprehending that the judicial officer, for whatever reasons, was not or will not be impartial.”

HH172-17 : TENDAI MANGWIRO vs MINISTER OF JUSTICE & LEGAL AFFAIRS (N.O.) and MINISTER OF HOME AFFAIRS (N.O) and ATTORNEY-GENERAL OF ZIMBABWE (N.O.)
Ruled By: MUSHORE J

I take judicial notice of the Constitutional provisions which emphasize the need for judicial impartiality and the independence of the judiciary in a democratic State. Section 164(2) of the Constitution…, emphasizes the necessity of State organs to assist in ensuring that the courts are not being undermined and that the dignity and independence of the judiciary is ...

I take judicial notice of the Constitutional provisions which emphasize the need for judicial impartiality and the independence of the judiciary in a democratic State.

Section 164(2) of the Constitution…, emphasizes the necessity of State organs to assist in ensuring that the courts are not being undermined and that the dignity and independence of the judiciary is preserved. To that end, it seems to me that that special obligation ought to be considered in a determination because obviously the independence of the judiciary should never be compromised to any extent because of the State deliberately failing to carry out their obligations to assist persons to enforce their rights. In De Lange v Smuts NO & Ors 1998 (3) SA…, Ackerman J stated that:

“In a Constitutional democratic State, which ours certainly is, and under the rule of law…, citizens as well as non-citizens are entitled to rely upon the State for the protection and enforcement of their rights. The State therefore assumes the obligation of assisting such persons to enforce their rights, including the enforcement of their civil claims against debtors.”

In Mjeni v Minister of Health and Welfare, Eastern Cape 2000 (4) SA 446, JAFTA J derided the eroding of the right of access to the courts brought upon by deliberate non-compliance of court orders by the State as presenting “an illusion” to the Constitutional right of access to the courts….,.

In Mjeni v Minister of Health and Welfare, Eastern Cape 2000 (4) SA 446 Jafta J said:

“A deliberate non-compliance or disobedience of a court order by the State, through its officials, amounts to a breach of [a] Constitutional duty [imposed by s165 of our Constitution]. Such conduct impacts negatively upon the dignity and the effectiveness of the courts….,.

The Constitutional right of access to courts would remain an illusion unless orders made by the courts are capable of being enforced by those in whose favour such orders were made. The process of adjudication and the resolution of disputes in courts of law is not an end in itself but only a means thereto; the end being the enforcement of rights or obligations defined in the court order.

To a great extent, section 3 of Act 20 of 1957 {immunity from execution clause} encroached upon that enforcement of rights against the State by judgment creditors.”…,.

It is my considered view that a court should never shirk its responsibility in doing all that is necessary in making judicial law.

In Poindexter v Greenhow 114 US 270 (885) (cited in Nyathi v MEC for Department of Health, Gauteng, 2008 (5) SA (CC)), the following observation was made with respect to State immunity and a democratic Government…,;

“Of what point are written Constitutions whose Bill of Right for the security of individual liberty have been written, too often, with the blood of martyrs shed upon the battlefield and the scaffold, if their limitations and restraints upon power may be over-passed with impunity by the very agencies created to appoint and guard, defend and enforce them; and that too, with the sacred authority of law, not only compelling obedience, but entitled to respect? And how else can these principles of individual liberty and rights be maintained, if, when violated, the judicial tribunals are forbidden to force penalties upon individual offendors, who are the instruments of wrong, wherever they interpose the shield of the State? The doctrine is not to be tolerated. The whole frame and scheme of the political institutions of this country, State and Federal, protest against it.

It is the doctrine of absolutism, pure, simple, and naked.”

I have identified that section 5(2) of the State Liabilities Act is destructive of important rights which the Declaration of Rights speaks to and represents. If those rights are impeded, the Declaration of Rights implementation is severely impeded.

In a constitutional democracy, the authority and effectiveness of a Constitution is determined by the authority and effectiveness of the courts.

HMA12-18 : CONSTABLE CHIHWAI vs BOARD PRESIDENT N.O., CHIEF SUPERINTENDENT NYATHI M and COMMISSIONER GENERAL OF POLICE
Ruled By: MAFUSIRE J

Whilst, by section 69 of the Constitution, it is everyone's right to access the courts for the resolution of disputes, this right does not detract from the obligation of persons subject to special tribunals, like the applicant is, to appear before them, in appropriate situations. The High Court should not be embroiled prematurely in the internal ...

HH281-16 : JOHANNES TOMANA vs JUDICIAL SERVICE COMMISSION and THE MINISTER OF JUSTICE, LEGAL AND PARLIAMENTARY AFFAIRS
Ruled By: MAKONI J

An acting judge is appointed in terms of section 181 of the Constitution. Such an appointment is limited to a former judge, and for a limited period, as provided for in section 181(3)….,. The independence of a judge is particularly protected in terms of the Constitution. Section 164(1) of the Constitution provides: “The courts are independent and are ...

HH366-16 : JOHANNES TOMANA vs JUDICIAL SERVICE COMMISSION and THE MINISTER OF JUSTICE LEGAL AND PARLIAMENTARY AFFAIRS
Ruled By: MAKONI J

Counsel for the applicant indicated that the applicant intended to file a constitutional application challenging the refusal to refer the applicant's question to the Constitutional Court….,. What the applicant was raising with the Constitutional Court was a jurisdictional issue i.e. whether I could hear the substance of the matter. It was the applicant's absolute right to approach ...

CC21-19 : NELSON CHAMISA vs EMMERSON DAMBUDZO MNANGAGWA and OTHERS
Ruled By: MALABA CJ, GWAUNZA DCJ, GARWE JCC, MAKARAU JCC, HLATSHWAYO JCC, PATEL JCC, BHUNU JCC, UCHENA JCC and MAKONI JCC

THE DECISION TO BROADCAST THE COURT PROCEEDINGS Before considering the issues raised by the challenge to the validity of the Presidential election, it is necessary to explain the decision made to have the Court proceedings broadcast live on national television. Ordinarily, court proceedings in Zimbabwe are not televised. Court sessions are, however, open to members of the public, ...

THE DECISION TO BROADCAST THE COURT PROCEEDINGS

Before considering the issues raised by the challenge to the validity of the Presidential election, it is necessary to explain the decision made to have the Court proceedings broadcast live on national television.

Ordinarily, court proceedings in Zimbabwe are not televised. Court sessions are, however, open to members of the public, save for cases in respect of which the law expressly requires that proceedings be conducted in camera. However, even where members of the public are allowed to attend court proceedings, video recording of the proceedings is prohibited.

Arguments have been advanced for and against live streaming, through television, of court proceedings. Those who support live broadcasting through television of court proceedings argue that it promotes transparency and public confidence in the justice system. They argue that fear of sensationalism is allayed through strict regulation of the broadcasting process so as to protect the dignity of the proceedings. The factors often referred to in argument in support of live streaming through television of court proceedings are transparency, accountability, responsiveness, and justice.

In New Brunswick Broadcasting Corporation v Nova Scotia (Speaker of the House of Assembly) [1993] 1 SCR 319, CORY J provided a useful insight into the factors that may be taken into account in deciding whether court proceedings should be broadcast live or not through television. He said:

“The television media constitute an integral part of the press. Reporting in all forms has evolved over the ages. Engraved stone tablets gave way to baked clay tablets impressed with the cuneiform writing of the Assyrians and the papyrus records of the Egyptians. It was not so long ago that the quill pen was the sole means of transcribing the written word. Surely, today, neither the taking of notes in shorthand nor the use of unobtrusive tape recording devices to ensure accuracy would be banned from the press gallery. Nor should the un-obtrusive use of a video camera. The video camera provides the ultimate means of accurately and completely recording all that transpires. Not only the words spoken but the tone of voice, the nuances of verbal emphasis together with the gestures and facial expressions are recorded. It provides the nearest and closest substitute to the physical presence of an interested observer.

So long as the camera is neither too pervasive nor too obtrusive, there can be no good reason for excluding it. How can it be said that greater accuracy and completeness of recording are to be discouraged? Perhaps more Canadians receive their news by way of television than by any other means. If there is to be an informed opinion in today's society, it will be informed in large part by television reporting. Nor should we jump to the conclusion that if the media are granted broader rights, those rights will be abused. Hand in hand with increased rights go increased responsibilities. The responsibility of the press is to report accurately, fairly and completely, that which is relevant and pertinent to public issues. It may be argued that the television media will only broadcast that which is sensational. That same argument could be advanced with regard to all forms of media. Yet no one would consider barring the print media from a public session of the Assembly on the grounds that they tended to be sensationalist. The public today is too intelligent, too discerning and too well informed to accept unfairly slanted or sensational reporting.”

Others have advocated for the live streaming, through television, of court proceedings on the rights-based approach. It is argued that live streaming through television, of court proceedings, accommodates rights such as the right to freedom of expression and freedom of the media, the right of access to justice, and the right of access to information. When it comes to access to justice, it is accepted that any person can attend court proceedings as long as the proceedings are not required to be conducted in camera. It is argued, however, that it is one thing to allow access to justice; it is another to allow easy access to justice. Televising court proceedings is thus said to facilitate easy access to justice.

Proponents of live broadcasting through television of court proceedings argue that televising the proceedings allows the public to know what happens during the exercise of judicial power, which is derived from the people. The public have an opportunity to see for themselves and learn how courts function in the process of hearing and determining disputes between citizens, on the one hand, and citizens and the State on the other.

The most important rider to the rights-based approach is that live streaming through television of court proceedings must take into account the principle that the individual litigants have a right to a fair trial. See South African Broadcasting Corporation Limited v The National Director of Public Prosecutions and Ors 2007 (1) SA 523 (CC).

It is universally accepted that no one fundamental human right is superior to the other. There must be a balance between public interest, and the interests of the litigants and their legal representatives, and respect for the court's decorum when administering justice.

In South African Broadcasting Corporation Limited v Thatcher and Others [2005] 4 All SA 353 (C)…, the Constitutional Court of South Africa quoted a statement by Lord Falconer of Throroton, the Lord Chancellor of England and Wales. In the foreword to the United Kingdom Consultation Paper 28/04, which was the basis of the “Broadcasting Courts Seminar” held in the United Kingdom in 2005, the Lord Chancellor said:

“Justice must be done and justice must be seen to be done. That notion exactly catches the argument about television and the courts.

The justice system exists to do justice. If it does not do justice in public it risks slipping into unacceptable behaviour and losing public confidence. With a few exceptions, our courts are open to the public, but very few people who are not involved in cases ever go near a court. Most people's knowledge and perception of what goes on in court comes from court reporting and from fictionalised accounts of trials. The medium which gives most access to most people, television, is not allowed in our courts. Should that change? Is there a public interest in allowing people, through television, to see what actually happens in our courts in their name? In a modern, televised age, I think there is a case to be considered here.”

In Scott v Scott [1913] AC 417 (HL)…, the House of Lords quoted with approval a statement by Jeremy Bentham, an English philosopher and jurist, to the effect that:

“Publicity is the very soul of justice. It is the keenest spur to exertion and surety of all guards against improbity.”

On 26 September 2018, the Supreme Court of India decided that proceedings of “constitutional importance having an impact on the public at large or a large number of people” should be live-streamed in a manner that is easily accessible for public viewing. The Supreme Court of India made the decision in a hearing concerning four consolidated matters. The cases were Tripathi v Supreme Court of India Writ Petition (Civil) No.1232 of 2017; Jaising v Secretary General and Ors Writ Petition (Civil) No.66 of 2018; Nedumpara and Ors v Supreme Court of India and Ors Writ Petition (Civil) No.861 of 2018; and Center for Accountability and Systemic Change and Ors v Secretary General and Ors Writ Petition (Civil) No.892 of 2018.

In delivering the main judgment A M KHANWILKAR J alluded…., to the benefits of live-streaming through television of court proceedings. HIS LORDSHIP said:

“8. Indubitably, live streaming of Court proceedings has the potential of throwing up an option to the public to witness live court proceedings which they otherwise could not have due to logistical issues and infrastructural restrictions of Courts; and would also provide them with a more direct sense of what has transpired. Thus, technological solutions can be a tool to facilitate actualisation of the right of access to justice bestowed on all, and the litigants in particular, to provide them virtual entry in the Court precincts, and, more particularly, in Court rooms. In the process, a large segment of persons, be it entrants in the legal profession, journalists, civil society activists, academicians or students of law will be able to view live proceedings in propria persona on real time basis. There is unanimity between all the protagonists that live streaming of Supreme Court proceedings, at least in respect of cases of Constitutional and national importance, having an impact on the public at large or on a large number of people in India, may be a good beginning, as is suggested across the Bar.

9. Live streaming of Court proceedings is feasible due to the advent of technology, and, in fact, has been adopted in other jurisdictions across the world. Live streaming of Court proceedings, in one sense, with the use of technology is to 'virtually' expand the courtroom area beyond the physical four walls of the Court rooms. Technology is evolving with increasing swiftness whereas the law and the courts are evolving at a much more measured pace. This Court cannot be oblivious to the reality that technology has the potential to usher in tangible and intangible benefits which can consummate the aspirations of the stakeholders and litigants in particular. It can epitomise transparency, good governance and accountability, and, more importantly, open the vista of the courtrooms, transcending the four walls of the rooms to accommodate a large number of viewers to witness the live Court proceedings. Introducing and integrating such technology into the court rooms would give the viewing public a virtual presence in the Court room and also educate them about the working of the Court.”

The main arguments against live streaming through television of court proceedings have ranged from the expressed fear that televising court proceedings sensationalises and degrades the justice system, resulting in reduced public respect for the courts, to fears that trials would be turned into media circuses, with the result that Judges may end up making populist decisions which are not grounded in justice and the law.

Fears have also been expressed of the possibility that the actors in the court proceedings may be too distracted by the live streaming media presence, taking away their utmost attentiveness to the court proceedings. Some also argue that televising court proceedings may expose a litigant to the public eye, thereby violating the litigant's right to a fair trial and the protection of the witnesses.

The first point to note is that live streaming of court proceedings through television is not a universal principle. Whether or not to have court proceedings streamed live will depend on the laws of a particular jurisdiction. It is a matter that is dependent on the manner in which each jurisdiction decides to manage and regulate its own proceedings, taking into account various circumstances of the case. The overriding consideration is the principle of transparency. There is an acceptance of the principle that each case has to be considered on the basis of its own circumstances.

The decision to broadcast live on national television the proceedings in this case was made by the Constitutional Court on the basis of consideration of the interests of justice. The Court took into account the fact that the matters in the Presidential election dispute at the centre of the proceedings were of constitutional and national importance, impacting on the interests of the public at large. The Court also considered the fact that it has, under the Constitution, inherent power to protect and regulate its own process, taking into account the interests of justice.

Section 176 of the Constitution provides for the inherent power of the Court to protect and regulate its own process. It provides:

“176 Inherent powers of Constitutional Court, Supreme Court and High Court

The Constitutional Court, the Supreme Court and the High Court have inherent power to protect and regulate their own process and to develop the common law or the customary law, taking into account the interests of justice and the provisions of this Constitution.”

Openness of justice, embodied in the principle that justice must be seen to be done, is not limited to ensuring that the whole country is afforded the opportunity to watch court proceedings as they unfold. The common law principle is subject to limitations imposed by the demands of the application of the principle that every case must depend on its own facts and circumstances. See Assistant Commissioner Michael James Condon v Pompano (Pty) Ltd [2013] HCA 7. This explains the differences in the exercise of discretion by courts in deciding whether or not to permit live streaming through television of the proceedings.

In Tripathi v Supreme Court of India Writ Petition (Civil) No.1232 of 2017…, CHANDRACHUD J commented on the concept of open justice in the context of a request for live streaming of court proceedings through television relating to matters of constitutional importance. HIS LORDSHIP said:

“5. Legal scholars indicate that the principle of open justice encompasses several aspects that are central to the fair administration of justice and the rule of law. It has both procedural and substantive dimensions which are equally important. Open justice comprises of several precepts:

(i) The entitlement of an interested person to attend court as a spectator;

(ii) The promotion of full, fair and accurate reporting of court proceedings;

(iii) The duty of judges to give reasoned decisions; and

(iv) Public access to judgments of courts.

The principle of an open court is a significant procedural dimension of the broader concept of open justice. Open courts allow the public to view courtroom proceedings.”

The factor that the Court took into account in arriving at the decision to permit live streaming of the proceedings through television was the extraordinary nature of the proceedings before it. An application lodged in terms of section 93(1) of the Constitution is a sui generis procedure.

The remarks of the Constitutional Court in Tsvangirai v Mugabe and Ors CC20-17…, in that regard are apposite. The Court said:

“Section 93(1) of the Constitution is based on a presumption of validity of the election of the President forming the subject of the petition or application lodged with the Court. Challenging the validity of the election of a President, in terms of section 93(1) of the Constitution, is as much an act of democratic self-government as acting in accordance with the Constitution and the Electoral Law to ensure free, fair and credible elections. The investigation by the Court, in terms of section 93(3) of the Constitution, to establish the truth of what happened in the election and the giving of a final and binding decision on the validity or invalidity of the election is a protection of the right of every Zimbabwean citizen to a free, fair and credible election of a President.”…,.

Section 93(1) of the Constitution limits the locus standi to challenge the validity of the Presidential election to aggrieved candidates who participated in the Presidential election. The limitation of locus standi is not indicative of just the personal interest on the part of an aggrieved candidate who files a Presidential election petition or application under section 93(1) of the Constitution.

In Tsvangirai v Mugabe and Ors CC20-17, the following remarks.., on the meaning of section 93 of the Constitution, are worth quoting to contextualise the decision to allow the live streaming of the Court proceedings through television by the public broadcaster. The Court said:

“The right of petition or application is conferred on an aggrieved candidate and protected under section 93 of the Constitution as a legal remedy for the protection of the right guaranteed to every citizen under section 67(1) of the Constitution to free, fair and regular elections for any elective public office established in terms of the Constitution or any other law and exercised in accordance with the provisions of the Electoral Law. The office of President is an elective public office established by the Constitution. Every Zimbabwean citizen, regardless of voting status, has a fundamental right to a free, fair and credible Presidential election. In other words, he or she has a right to a valid election of a President held in accordance with the relevant provisions of the law governing the conduct of the election. An aggrieved candidate is a registered voter who shares with all other Zimbabwean citizens the right to a free, fair and credible election of a President. It is the alleged commission by the respondents in the election of corrupt practices and/or irregularities prohibited under the provisions of the Electoral Law which materially affects the validity of the election in violation of the fundamental right of every Zimbabwean citizen to a free, fair and credible election of a President that constitutes the subject-matter of the petition or application lodged with the Court under section 93(1) of the Constitution….,.

The Court is enjoined, in the discharge of its duties under section 93(3) of the Constitution, to hold firmly in its mind, and act in accordance with, the value fundamental to any democratic society, that the basis of authority of a representative Government to govern is free, fair and regular elections.”

Once it is accepted that the proceedings before the Constitutional Court were not only limited to the parties' interests but extended to those of all citizens to a free, fair and credible Presidential election, it is clear that it was in the interests of justice to allow the live streaming, through national television, of the proceedings. Members of the public had an interest in having knowledge of the evidence produced by the disputants. They had an interest in witnessing how the Court handled the matter and what decision it reached. They had an interest in deciding whether, in their own objective assessment, the decision of the Court was fair and just.

SC37-17 : TM SUPERMARKETS (PVT) LTD vs AVONDALE HOLDINGS (PVT) LTD and SHERIFF OF ZIMBABWE
Ruled By: CHIDYAUSIKU CJ

In Chidziva Ors v Zimbabwe Iron Steel Co Ltd 1997 (2) ZLR 368 (SC) muchechetere ja said…,: “In the present case, no real attempt was made to show that the appellants abandoned their rights with full knowledge of those rights. All that was submitted was that the appellants accepted the retrenchment packages. The respondent should have ...

In Chidziva & Ors v Zimbabwe Iron & Steel Co Ltd 1997 (2) ZLR 368 (SC) muchechetere ja said…,:

“In the present case, no real attempt was made to show that the appellants abandoned their rights with full knowledge of those rights. All that was submitted was that the appellants accepted the retrenchment packages. The respondent should have gone further to show that they did this with full knowledge that they were abandoning their rights. On this, I also cite, with approval, the passages at p489 of Christie's above cited book (The Law of Contract in South Africa, 3ed) where the learned author said:

'…, there is ample other authority that it must be clearly proved that the person who is alleged to have waived his rights knew what those rights were. A party who fails to prove this necessary ingredient of waiver may still be able to raise the defence of estoppel against any attempt to enforce the rights in question. When it cannot be proved that the party alleged to have waived knew what his rights were it may appear that his ignorance is properly classified as ignorance of law. It can now be regarded as settled, despite van den Heever j's decision to the contrary in Schwarzer v John Roderick Motors (Pty) Ltd 1940 OPD 170 at 185, that in this connection ignorance of the law is excusable provided it is iustus et probabilis' - justifiable and probable. This is especially so since Willis Faber Enthoven (Pty) Ltd v Receiver of Revenue 1992 (4) SA 202 (A) which equates mistake of fact and mistake of law for purposes of the condicto indebiti; Murray j's words, in Ex p Sussens 1941 TPD 15 at 20, may be taken as a correct statement of law:

'The necessity for a full knowledge of the law in the case of waiver follows from the principle that waiver is a form of contract, in which one party is taken deliberately to have surrendered his rights: there must therefore be proof of an intention as to surrender, which can only exist where there is knowledge both of the facts and the legal consequence thereof.'

The necessity to prove knowledge of the rights allegedly waived, before it can be said that conduct in question amounts to waiver, applies equally to a case where the act of alleged waiver has been performed, not by the party to the contract himself, but by his agent (Pretorius v Greyling 1947 (1) SA 171 (W) at 177)'.”

HMA36-18 : AMALGAMATED RURAL TEACHERS UNION OF ZIMBABWE vs OBERT MASARAURE and ZIMBABWE AFRICAN NATIONAL UNION [PATRIOTIC FRONT] and MINISTER OF PRIMARY AND SECONDARY EDUCATION
Ruled By: MAFUSIRE J

All in all, I considered that none of the first respondent's technical objections aforesaid, individually or collectively, could block the determination of the matter on the merits seeing that the applicants' complaint was a breach of fundamental rights and freedoms enshrined in the Constitution. Section 85 of the Constitution says the fact that a person has ...

HHH138-09 : THE STATE vs ROY LESLIE BENNNET
Ruled By: BHUNU J and ASSESSORS: MUSENGEZI and CHIVANDA

I would, at the outset, mention in passing that at the beginning of these proceedings we were advised that there were foreign observers who wanted to be introduced to members of the Court. While our courts are open to members of the public, we accord no special treatment to any class of persons regardless of ...

I would, at the outset, mention in passing that at the beginning of these proceedings we were advised that there were foreign observers who wanted to be introduced to members of the Court.

While our courts are open to members of the public, we accord no special treatment to any class of persons regardless of their station or purpose in life.

We operate in an adversarial criminal justice system where a criminal trial is akin to a contest between the State and the accused and the function of the Court is, to a large extent, that of a referee or umpire.

The Court is therefore keenly aware, that like in any other contest, the audience or spectators attend Court for various reasons, some are in support of one side or the other, some are neutral curious observers, and, yet, others pretend to be neutral when in actual fact they are not disinterested curious observers.

Members of the public are nevertheless free to attend our proceedings without let or hindrance not withstanding their purpose for attending Court. In the ordinary run of things, the Court does not want to know why any member of the public may be attending Court for fear that their purpose for attending Court might rub onto its shoulders thereby undermining the independence of the judiciary and impartiality.

Impartiality, equality, and fairness are the bedrock upon which our criminal justice system firmly rests. Justice and fairness demands that if foreign observers are to be accorded the privilege of being introduced and rubbing shoulders with members of the judiciary the same privilege must be accorded to local observers and audience and vice versa.

This is, however, unusual - if not ridiculous.

For instance, it is scandalous that members of the accused's family may strive to introduce themselves to the Bench. The same applies to State functionaries and foreign observers who are not directly involved in these proceedings.

This explains why the Court turned down the request for the introduction to the Bench of any observers - foreign or otherwise.

HHMA55-18 : STATE vs PHILLIP GUVHU
Ruled By: MAFUSIRE J and MAWADZE J

A Magistrate Court is a court of record (section 5(1) of the Magistrates Court Act [Chapter 7:10]). A court record that fairly and accurately represents the proceedings and the findings facilitates the review of, or appeal from, such proceedings or findings. Admittedly, current resource limitations mean that judicial officers are condemned to the tedious and mechanical process ...

HH197-15 : ROBSON MAKONI vs THE COLD CHAIN (PRIVATE) LIMITED t/a SEA HARVEST
Ruled By: CHIGUMBA J

Should our courts be courts of law or courts of justice? One would presuppose that the law is justice and that justice is the law. To the ordinary man, i.e. one who is untutored in the practice of the law and the pursuit of justice, it would appear that law and justice have a symbiotic relationship; ...

HH572-14 : GLADYS MACHAWIRA vs PG INDUSTRIES (PRIVATE) LIMITED
Ruled By: MAFUSIRE J

It is a very serious thing to withhold the court's jurisdiction from anyone. The speedy determination of civil rights and obligations by courts of law is one of the fundamental human rights and freedoms enshrined in the Constitution. Obviously, the right is not, and cannot be, absolute. Very few things in life are absolutes. But ...

HHB129-09 : RAPHAEL TSHABANGU and NICHOLAS TSHABANGU and DUMEZWENI TSHABANGU vs THE STATE
Ruled By: NDOU J

We convicted the three applicants of murder on 12 June 2009. I sentenced the applicants to sixteen (16) years imprisonment. They noted an appeal against both conviction and sentence. They now seek leave to appeal to the Supreme Court.It took long for the matter to be set down as the ...

SSC36-20 : TONIC MANGOMA vs THE STATE
Ruled By: MAKARAU JA, MAKONI JA and MATHONSI JA

This is an automatic appeal against both conviction and sentence. The appellant was convicted of murder with actual intent by the High Court sitting on circuit at Gweru on 22 September 2014.

Upon conviction, the penalty of death was imposed.

After hearing argument from counsel, this Court made the following order:

“It is ordered that:

1. The appeal against conviction is dismissed.

2. The appeal against sentence is allowed.

3. The sentence of death imposed by the court a quo is set aside.

4. The matter is remitted to the court a quo for consideration and imposition of an appropriate sentence.”

The court stated that the full reasons for the order would follow. These are the reasons.

NON-INVOLVEMENT OF THE STATE

This appeal was initially set down on 11 September 2018. The appeal could not be heard on that date because the respondent had not filed heads of argument and needed time to do so. Counsel for the respondent requested a postponement to enable her to file heads of argument. The court acceded to that request and issued the following order:

“It is ordered that:-

The appeal is postponed sine die to allow the respondent to file heads of argument following the late filing of the notice of appeal.”

I must add that the Notice of Appeal had been filed only on 7 September 2018 giving the respondent little time to file heads of argument.

When the appeal was again set down for hearing, the respondent still had not filed heads of argument. Counsel for the respondent, again, appeared and sought a further postponement of the appeal. She admitted having been served with the Notice of Appeal in September 2018 and being timeously served with the Notice of Set Down. She however submitted that the matter had been allocated to someone else at the office of the National Prosecuting Authority who did not file heads of argument.

As to why that officer had not appeared before the court to explain her failure to act and why she was not making the application for a postponement herself, counsel did not give a satisfactory explanation.

It is clear that the office of the National Prosecuting Authority has been tardy in its handling of the matter and has not given it the attention that it deserves.

In terms of Rule 52(3) of the Supreme Court Rules, 2018, where the respondent is to be represented by a legal practitioner at the hearing of the appeal, that legal practitioner shall file a document setting out the heads of his or her argument together with a list of authorities cited in support, within ten days of receipt of the appellant's heads of argument.

Subrule (5) of Rule 52 provides for an automatic bar against a failure to file heads of argument timeously.

The appellant's heads of argument were filed and served on the respondent on 30 May 2018 but the respondent, even though represented by counsel, did not file its own heads of argument up to the date of the initial set down on 11 September 2018 on the pretext that the Notice of Appeal had not been filed and served on time. This Court gave the respondent an indulgence and postponed the matter sine die to allow enough time for the settling of the heads of argument.

The indulgence was spurned.

It is the view of this Court that the respondent could not possibly expect a further indulgence of another postponement. In fact, there was nothing suggesting that the respondent was treating this Court with the respect that it deserves.

While it is the right of the prosecution, in any criminal appeal, to defend the conviction, and, indeed, the sentence of convicted persons, that right should be exercised within the confines of the law and the four corners of the Rules of Court.

The court has always leaned in favour of according the National Prosecuting Authority the opportunity to present its cases and to be heard. In that regard, they have always been indulged in the discretion of the court. Unfortunately, the leniency extended to that office has been completely misunderstood. It is certainly not a licence for treating the Rules of Court with disdain.

Indeed, there are no special rules governing the National Prosecuting Authority. It is a party to proceedings just like any other litigant and is required to abide by the Rules.

HB56-15 : GLADYS KARENGWA vs ALBERT MPOFU
Ruled By: MAKONESE J

This is a Chamber application for dismissal of the respondent's application in case number HC2718/13. The application has been initiated in terms of Order 32 Rule 236(3)(b) on the grounds that the respondent has failed to file an answering affidavit or heads of argument within the time stipulated by the Rules.

The parties appeared before me on 2 March 2015. The respondent was in default. His wife attended the proceedings and indicated that her husband was not well and in hospital. I pointed out that the respondent had, on numerous occasions, failed to attend court and deliberately sent his wife to court, causing delays in the finalization of this matter.

The respondent's wife, who appeared to be well acquainted with the details of the matter, put up an argument in response to the application before the court.

I granted the application prayed for and indicated that my reasons would follow. These are my reasons.

Background

The dispute in this matter revolves around the right, title, and interest in a property known as Stand 5671 Mkhosana Township, Victoria Falls. The applicant and the respondent both claim that they own the right, title, and interest in the same property.

On 10 September 2010, the respondent filed a court application under case number HC1805/10 claiming, inter alia, the transfer of right, title, and interest over Stand 5671 Mkhosana Township, Victoria Falls into his names. That court application was improperly served and the applicant did not become aware of its contents until a later date. Meanwhile, the respondent's legal practitioners had set the matter down on the unopposed roll and obtained a default judgment against the applicant. Subsequently, and upon becoming aware of the application and the order obtained in default, the applicant filed an application for rescission of judgment under case number HC480/11. That application for rescission of judgment was opposed by the respondent who failed or neglected to file his heads of argument timeously. Pursuant to an order of this court, the matter was set down on the unopposed roll and an order for rescission of judgment was granted in default.

The default judgment granted to the respondent, under case number HC1805/10, having been rescinded, the applicant was required to file fresh opposing papers in case number HC1805/10 within five days of the granting of the order. The applicant complied and filed such papers on 16 October 2012. Following the service of the applicant's opposing papers upon him, the respondent failed to file an answering affidavit and failed to set the matter down despite being called upon to do so. Consequently, the applicant made an application, in terms of Order 32 Rule 236(3)(b), to have the applicant's application in case number 1805/10 dismissed with costs.

The respondent failed to oppose that application, and, on 21 February 2013, this court granted an order dismissing the claim.

The respondent then made another application for rescission of the order dismissing his application under case number HC2817/13. Once again, the respondent failed to file an answering affidavit or set the matter down for hearing. This has led the applicant to launch this application for dismissal for want of prosecution.

Order 32 Rule 236(3), as amended by Statutory Instrument 80 of 2000, provides as follows:

“(3) Where the respondent has filed a notice of opposition and an opposing affidavit, and, within one month thereafter, the applicant has neither filed an answering affidavit nor set the matter down for hearing, the respondent, on notice to the applicant, may either -

(a) Set the matter down for hearing in terms of Rule 233; or

(b) Make a chamber application to dismiss the matter for want of prosecution, and the judge may order the matter to be dismissed with costs or make such other order on terms as he thinks fit.”

The applicant has elected to make this application for dismissal for want of prosecution.

These courts have adopted a very strict approach in matters where an applicant has failed to file his answering affidavit or set the matter down for hearing. The court usually looks at the reasons for failing to act timeously. Where failure to act is the result of an utter disregard of the Rules of the court and prescribed time limits, the courts are extremely reluctant to give any further indulgence to the defaulting party.

See the case of Moon v Moon HB94-05.

In the case of Ndlovu v Chigaazira HB104-05, the learned judge indicated that the reason why Rule 236 had to be enforced is to ensure that finality is brought to legal proceedings.

The circumstances of this matter clearly show that the respondent has a tendency to institute actions without pursuing them to their conclusion. The respondent has failed to file the necessary documents on three separate occasions. The respondent's conduct is merely dilatory and he is well aware that delaying the matter may be in his best interests. He has no intention of prosecuting his actions to completion.

I note that, in his opposing papers, the respondent has not tendered any reasonable explanation as to why he delayed in the filing of his answering affidavit or why he has failed to set the matter down for hearing.

The respondent's opposing papers do not assist him in anyway.

The respondent cannot raise a defence that he is a self actor and therefore ignorant of the provisions of the Rules. The respondent elected to act as a self-actor in this matter. If a person elects to act as a self actor, then, he is bound by any procedural errors he may make in the prosecution of his claims.

HH87-12 : MARVELLOUS TARUONA vs MISHECK ZVAREVADZA and OTHERS
Ruled By: KUDYA J

The plaintiff has, apart from the fourth (Emmanuel Zvarevadza) and fifth (Darikai Butsa) defendants, been involved in legal combat with all the other parties in HC2765/05, Misheck Zvarevadza (first defendant), Dadirai Moses (second defendant), Shadreck Zvarevadza (third defendant), Cobra Security (Pvt) Ltd (sixth defendant), Controller of Private Investigations and Security Guards (seventh defendant), Ministry of Home Affairs (eighth defendant), and, Registrar of Companies (ninth defendant).

In HC4096/96 he brought an application for his reinstatement as a director in the sixth defendant against the sixth defendant. He was reinstated. The sixth defendant got its act together and dismissed him as a director on 24 September 1996. He brought another application seeking reinstatement in HC4157/97. It was contested. BARTLETT J dismissed that application with costs on 17 September 1997.

The founding affidavit that launched the present matter is a carbon copy of the application he filed in HC2765/05 that he withdrew in June 2006.

The present matter was set down on the opposed roll for hearing on 25 January 2011 where PATEL J directed as follows:

1. There are disputes of fact which cannot be resolved on the papers.

2. Accordingly, it is ordered that the matter be referred to trial for determination on the basis of viva voce evidence as follows:

(a) The founding papers shall stand as summons commencing action and the opposing papers as notice of appearance to defend by first to sixth defendants;

(b) The applicant/plaintiff is directed to file his declaration on or before 8 February 2011 and the matter shall proceed thereafter in accordance with the Rules of Court.

(c) The costs of this application to date shall be costs in the cause.

The plaintiff merely turned the founding affidavit into a declaration and substituted all reference to the applicant and respondent by the plaintiff and defendant.

The plaintiff's declaration aptly fits into the description made by MAKARAU JP…, in Mwanyisa v Jumbo & Ors HH03-10…, cited with approval by MAWADZE J in Morris v Morris & Anor HH71-11…, as “a dog's breakfast.”

The six defendants' requested for further particulars; some of which were supplied.

On 1 April 2011, the defendants raised special pleas of res judicata and prescription and pleaded over the merits. The matter was referred to trial at the pre-trial conference held on 14 June 2011. The six issues referred to trial were:

1. Whether or not the plaintiff's claim is prescribed;

2. Whether or not the plaintiff's claim was determined by a competent court and is therefore res judicata;

3. If the matter is res judicata, whether the plaintiff is entitled to the relief sought;

4. Whether the second to fifth defendants are legitimate directors of the sixth defendant;

5. Whether the plaintiff is entitled to shares in the sixth defendant, and, if so, how many shares or what fraction or proportion of shares?;

6. Whether CR14 forms filed with the ninth defendant, dated 7 January 2003 and 14 September 2007, signed by the second defendant and fifth defendant respectively, should be nullified.

Only the first three issues arise for determination from the special pleas raised. I deal with the special pleas in the manner that they were argued.

Counsel for the defendants submitted that the question of the plaintiff's directorship in the sixth defendant was finally and definitively determined in HC4151/97 where the plaintiff's application for reinstatement as a director was dismissed. Counsel for the plaintiff counter-submitted that the dismissal was with respect to the plaintiff's executive and not the non-executive directorship.

It is clear from HC4151/97 that the plaintiff's prayer for reinstatement as a director was dismissed with costs. His dismissal was in accordance with article 17 of the Articles of Association of the sixth defendant. He was appointed director in terms of the Articles of Association and was dismissed from that position in terms of the self same articles. The appellation of executive or non-executive was irrelevant to his dismissal.

That the plaintiff was aware that he had been dismissed was clear from paragraph two of his declaration in which he stated that:

“The plaintiff is now a shareholder and a member of the sixth defendant through the first defendant's acts of fraud (sic).”

In paragraph thirteen of the declaration he contradicts this averment by declaring that he was still a director of the sixth defendant in July 2004.

An authoritative discussion on the requirements of res judicata is set out by SANDURA JA in Banda & Ors v Zisco 1999 (1) ZLR 340 (S)…,. They are that a final and definitive judgment by a competent court has been issued between the same parties or their privies, concerning the same subject matter, and founded upon the same cause of complainant as the action in which the defence is raised.

In City of Mutare v Mawoyo 1995 (1) ZLR 258 (H)…, MALABA J…, stated that one of the exceptions recognised at common law is when a judgment or order has been obtained through fraudulent misrepresentation.

In the present matter, the plaintiff did not allege that the judgment was obtained through fraudulent misrepresentation. Rather, he pleaded that the first defendant removed him from directorship fraudulently. The facts upon which he based the averment were the same facts he pleaded in HC4151/97, though he used such words as “defective notice of meeting,” “no compliance” with sections of the Companies Act, and “legal nullity”.

I am satisfied that the issue of directorship between the parties was resolved by a competent court and was founded upon the same complaint in HC4151/97.

Counsel for the defendants further submitted that the issue of the plaintiff's shareholding was again determined by CHIWESHE J…, a competent court, on 27 September 2001, in HC12625/2000. Counsel for the plaintiff disputed the averment that the issue of shareholding was resolved in the High Court and submitted that an appeal was still pending in that matter.

The record of proceedings shows that the full reasons for the judgment only became available on 7 May 2007 because the Registrar did not place the request for reasons timeously before CHIWESHE J.

In that matter, the plaintiff sought access to certain documents in the possession of the sixth defendant on the basis that he was a shareholder. It was held that he had failed to establish his shareholding on the papers. He, however, noted an appeal to the Supreme Court on 11 October 2001 in SC288/01, which appeal is still pending. The record shows that a certificate certifying that the record was complete and ready for set down was signed by the appellant on 3 July 2008 and has not yet been signed by the other parties.

I agree with counsel for the plaintiff that the issue of the plaintiff's shareholding is not res judicata. Rather it is lis pendens.

The defendants also relied on prescription to non-suit the plaintiff.

It was common cause that the plaintiff was dismissed as a director on 24 September 1996. He became aware of his dismissal by 7 May 1997 when he filed HC4151/97.

The Prescription Act [Chapter 8:11] bears a wide definition of debt that includes the vindication of an obligation or right arising from statute, contract, delict or otherwise. In Evins v Shield Insurance Co Ltd 1979 (3) SA 1136 (W)…, KING J stated that:

“The word 'debt' in the Prescription Act must be given a wide and general meaning denoting not only debt sounding in money which is due, but also, for example, a debt for the vindication of property.”

Section 10(1) of the South African Prescription Act 68 of 1969 was worded in similar terms as section 14(1) of our Prescription Act [Chapter 8:11].

In Standard General Insurance Co Ltd v Veroun Estates (Pty) Ltd 1990 (2) SA 693 (A)…, GOLDSTONE AJA stated that:

“The Prescription Act, if one has regard to section 10(1), thereof, appears to have introduced throughout the concept of 'strong' prescription. It is expressly stated that after the lapse of the period, which, in terms of the relevant law, applies in regard to the prescription of a debt, such debt 'shall be extinguished'. As was pointed out by CORBETT JA (as he then was) in Evins v Shield Insurance Co Ltd 1980 (2) SA 814 (A) at 842F, the lapse of the period of prescription 'extinguished' the debt and therefore also the right of action vested in the creditor.”

See also Lipschitz v Dechamps Textiles GmbH & Anor 1978 (4) SA 427 (C)…,.

In Zimbabwe, CHIDYAUSIKU J…, in Coutts & Co v Ford & Anor 1997 (1) ZLR 440 (H)…, stated of section 14 of our Prescription Act that:

“Thus, the clear intention of the legislature, as expressed in the above provision, is to make prescription a matter of substantive law as opposed to procedural law. The above provision clearly extinguishes the debt as opposed to merely barring the remedy. The wording of the exception to the provisions, namely, subs (3), puts the above interpretation beyond doubt.”

The right of the plaintiff to claim directorship was extinguished three years after he became aware of his dismissal from the directorship of the sixth defendant. The actual date was not pleaded, but, as the pleadings in HC4151/97 show, by 6 May 2000, his claim was extinguished by prescription.

Once extinguished it could not be revived by the filing of an erroneous CR14 form with the ninth defendant by officials of the sixth defendant on 30 June 2007.

The only claim of the plaintiff that is still alive is that based on his shareholding. It has not been extinguished by prescription. Section 7 of the Prescription Act shows that it is saved by the interruption of the pending appeal.

I, however, cannot determine that claim for two reasons;

(i) Firstly, an appeal is pending in HC12625/2000.

(ii) Secondly, the plaintiff did not claim his ownership of shares in the sixth defendant in the present matter.

The purported amendment filed of record was not moved and runs foul of the sentiments expressed in ZFC Ltd v Taylor 1999 (1) ZLR 308 (H)…, where GILLESPIE J stated:

“There is a practice prevalent, born of indolence and ignorance of the rules, whereby parties purport to effect an amendment of process and pleadings by the unilateral issue of a so-called 'notice of amendment.' One frequently finds in applications for default judgments that such notices have been issued after the default or bar, as the case may be, and are not even served upon the defendant. This is entirely unprocedural. There are only two possible methods of procuring an amendment to process or pleadings after the issue of summons. One is by consent of the parties and the other is by order of court.”

I, accordingly, uphold the special pleas of res judicata and prescription raised by the first to sixth defendants.

I have been asked to issue a decree of perpetual silence against the plaintiff.

It does not appear to me proper to emasculate him from approaching our courts seeing that there is still the pending issue of his shareholding in the sixth defendant that might very well require judicial determination.

View Appeal
HH145-17 : GERTRUDE MUTASA and DIDYMUS MUTASA vs NYAKUTOMBWA & MUGABE LEGAL COUNSEL and SHERIFF OF THE HIGH COURT
Ruled By: TSANGA J

The first and second applicants, the Mutasas, are husband and wife. Before me, they seek a stay of execution and return of removed goods pursuant to a default judgement in a matter relating to unpaid legal fees for services purportedly rendered by the first respondent, Nyakutombwa & Mugabe legal counsel, a firm of lawyers. The lawyers purport to have provided legal services to Mr Mutasa and two of his political colleagues which services have not been paid for jointly and severally.

Although a notice to defend was actioned in the matter on behalf of Mr Mutasa and filed with the court, it was never received by the firm of lawyers as it contained an incorrect reference number. Two last digits from a number which had been hand written on the summons had been inadvertently included to the correct reference number. Suffice it to state that as a result of this error, a default judgment was granted for failure to defend and household goods and two motor vehicles were taken away after a writ of execution and notice of removal had been duly served.

The Sheriff herein is cited as the second respondent in his official capacity and will abide by any decision of this court in the matter.

Mr Mutasa filed an urgent chamber application to try and stay removal, but, by date of its hearing, on the 16th of February 2017, it was common cause that the goods had already been removed the previous day. Since as the 'horse had bolted,' the application to stay removal was deemed to be too late for hearing by the judge upon whom the urgent matter had been placed given that at the core of its urgency had been to stay removal, which eventuality had already ensued. The parties were agreed that indeed the 'horse had already bolted' at the time the court was being asked to intervene. However, it is not in dispute that the matter was not heard on its merits and that Mr Mutasa, at the time, was urged to seek another suitable recourse to his plight.

His wife then brought this application, as first applicant, together with Mr Mutasa, as second applicant, on account that the goods had been removed pursuant to a judgment which affected their interest, and yet, as interested parties, they had not been aware of the judgement until the time of execution. They also argue that the goods removed far exceed the amount allegedly owed. Mr Mutasa disputes that services were rendered by the firm of lawyers.

The firm of lawyers, as the first respondent, resist the present application before me on several counts.

(i) Firstly, they allege that the applicants have approached the courts with dirty hands as they have not paid the costs for hearing of the urgent application that was dismissed.

However, the applicants counsel explained that they had only been advised of the actual costs that very afternoon.

HH283-17 : IGNATIUS MASAMBA vs THE SECRETARY – JUDICIAL SERVICE COMMISSION and MERCY GORONGOZA
Ruled By: CHITAPI J

Whilst it is the right of every person to petition the courts, with the courts having a corresponding duty to adjudicate on all matters which come before them, the right does not include the right to abuse the courts and judicial officers....,.Courts have a duty to guard the abuse of ...

HH283-17 : IGNATIUS MASAMBA vs THE SECRETARY – JUDICIAL SERVICE COMMISSION and MERCY GORONGOZA
Ruled By: CHITAPI J

On 7 November 2016, the applicant filed this chamber application....,.The Nature of the ApplicationThe chamber application purports to be founded on Rule 449(1)(b) of the High Court Rules, 1971. The Rule provides as follows:“449 Correction, variation and rescission of judgments and orders(1) The court or a judge may, in addition ...

On 7 November 2016, the applicant filed this chamber application....,.

The Nature of the Application

The chamber application purports to be founded on Rule 449(1)(b) of the High Court Rules, 1971. The Rule provides as follows:

“449 Correction, variation and rescission of judgments and orders

(1) The court or a judge may, in addition to any other power it or he may have, mero motu or upon application of any party affected, correct, rescind or vary any judgment or order -

(a)…,.

(b) In which there is an ambiguity or a patent error or omission, but only to the extent of such ambiguity, error or omission; or

(c)…,.

(d) The court or a judge shall not make any order correcting, rescinding or varying a judgment or order unless satisfied that all parties whose interests may be affected have had notice of the order proposed.”

The Law

I consider it important to briefly deal with the interpretation which the courts have given to Rule 449(1)(b).

Firstly, it must always be borne in mind that when a court or judge is seized with a matter, once it or he pronounces judgment or an order on the matter, it or he becomes functus officio. The court or judge, as the case may be, will have discharged it or his function, rightly or wrongly, and may not revisit or change the determination or decision. A party who is not satisfied with the decision of the court or judge must, subject to any Rule relative thereto, take up the decision on appeal to the Supreme Court. I would say that at its simplest extrapolation, this is the procedure which a litigant who is not satisfied with a decision of the court or judge should follow or be guided by.

Rule 449 recognizes the fallibility of the court or judge inasmuch as decisions of the court are made by human beings. As human beings judges are not infallible.

The Rule, in addition to the common law inherent power of this court to supplement, clarify or correct its judgment, which power does not concern this judgment, allows the court or judge to revisit its judgment in which it or he is functus officio. The revisitation and the powers which the court or judge may exercise are not open ended. The powers which may be exercised, and the circumstances allowing for the revisitation, are circumscribed in the Rule. The court or judge will do so either on its or his accord or upon application by any affected party which means that in addition to the parties to the judgment, a party who was not party to the litigation can utilize the Rule if such party is affected by the judgment or order concerned where it was given in such party's absence; see Mashingaidze v Chipunza & Ors 2015 (2) ZLR 362.

Before the court or judge can correct, rescind or vary any judgment or order based on the provisions of Rule 449(1)(b) at the instance of a party, such party is required to point out to:

(a) The ambiguity; or

(b) Patent error; or

(c) The omission; sought to be relied upon to move the court or judge to exercise a discretion to make alterations to the judgment or order as the case may be.

In Wector Enterprises (Pvt) Ltd v Luxor (Pvt) Ltd 2015 (2) ZLR 57 (S) the learned ZIYAMBI JA gave an overview of the rationale behind Rule 449 generally in the following extract…,:

“Rule 449 of the Rules has been invoked, among other instances;

(i) Where there is a clerical error made by the court or judge; see City of Harare v Cinamon 1992 (1) ZLR 361 (S);

(ii) Where entry of appearance had been entered but not in the file at the time default judgment was entered; see Banda v Fitluk 1993 (2) ZLR 60 (H);

(iii) Where, at the time of issue of the judgment, the judge was unaware of a relevant fact, namely, a clause in an acknowledgement of debt; see Grantually (Pvt) Ltd & Anor v UDC 2000 (1) ZLR 361 (S)…,.

Where applicable, the Rule provides an expeditious way of correcting judgments obviously made in error. It envisages the party in whose absence the judgment was granted being able to place before the court the fact, or facts, which were not before the court granting the judgment. There is no need for the applicant to establish good and sufficient cause as required by Rule 63 of the Rules; See Banda v Pitluk (supra).

However, in each case, the error or mistake relied upon must be proved, and, in each case, the court exercises a discretion; see Gondo & Anor v Syfrets Merchant Bank Ltd 1997 (1) ZLR 201 (H)…,.

In any event, Rule 449 is not mandatory but confers upon the court a discretion to act in terms thereof…,.”

The decisions in Mashingaidze v Chipunza & Ors 2015 (2) ZLR 362 and Vector Enterprises (Pvt) Ltd v Luxor (Pvt) Ltd 2015 (2) ZLR 57 (S), specifically dealt with applications brought under Rule 449(1)(a). This notwithstanding the cases stand as a guide with respect to the overview of the purport of Rule 449 generally.

In Mpansi & Ors v Dube & Ors 2015 ZLR 1 (S), the learned HLATSHWAYO JA dealt with an application for correction or variation of a Supreme Court order pursuant to Rule 58 of the Supreme Court Rules 1964 as read with Rule 449 of the High Court Rules, 1971.

He corrected a costs order in which costs had been granted against the executor of a deceased estate in his personal capacity. The order of costs had not specified that the costs of appeal be borne by the estate. The order had simply read, inter-alia, that; “The appeal is allowed with costs.” Since the executor had been a party to the appeal which was allowed, as a co-respondent, it was argued that the order of costs was ambiguous unless corrected because it gave the impression that both the executor and the estate had to bear costs. The learned judge clarified the costs order.

In my view, an ambiguous judgment or order must be construed as one that is unclear and capable of various interpretations. This may usually come about as a result of the language used by the court or judge. The ambiguity will therefore be attributable to the court or judge in how it or he has expressed himself or herself in the language used. In such a case it has been held that relief should be granted where, from the language used, the ambiguity resulting therefrom has the effect that the true intention of the court or judge is not clear; see First National Bank of South Africa Ltd v Surgens 1993 (1) SA 245 (W)…,.

A patent error or omission, as the expression implies, is one which is clearly obvious to anyone reading the judgment or order. It does not appear to me that the expression should present difficulties of interpretation.

Examples of patent errors may relate, inter alia, to clerical errors with regard to figures, dates, or spellings. For good measure, a court may have ordered that an order be complied with by a certain date, but, when the judgment is typed and signed, it gives a date which had already passed through clerical error or an impossible date like 31 June yet the month of June ends on the 30th.

A court or judge may, for example, in making an order requiring a party to do a certain act or refrain from doing so mistakenly omit to name the party who should so comply, in circumstances where there are several parties in the judgment. Such an omission can be said to be patent, and, in my view, can properly be corrected and the judgment or order varied to make it explicit.

I should mention that I have read the views expressed by the celebrated authors HERBASTEIN and Van WINSEN in The Civil Practice of the The Courts of South Africa, Vol 1, 5th…, where they rely on the judgment, Isaacs v Williams 1983 (2) SA 723, on the interpretation which has been given to Rule 42(1)(b) of the South African Uniforms Rules of Court which reads the same as Rule 449(1)(b).

The authors state that “an order that has been correctly made but incorrectly typed cannot be corrected or amended in terms of this Rule, although a court has the inherent competence to correct the order so that it corresponds with the one made by the court.”

A typing error, in my view, is an error which should be covered by Rule 449(1)(b) because, if the court has made an order and it is say handwritten or verbal and it is recorded, an error in typing becomes patent by comparison between the actual handwritten or recorded order and the typed error. I do not see why the Rule would not cover such a situation.

Even if I am wrong in my reasoning, I would think then that Rule 449(1)(c), which allows for a variation, rescission or correction of a judgment or order on the basis of a mistake common to the parties, would cover the situation.

The distinction is too fine to call because what, in essence, is the judgment or order of the court would be the untyped judgment or order. The act of typing is merely there to reduce the judgment or order to a typed version, and, if the typed version does not reflect the un-typed script, then, in my view, it is patently erroneous to the extent of the mis-typed error.

I therefore respectfully disagree with the said authors for the reasons I have set out. In disagreeing with them, I do so in the hope that I did not misunderstand or misconstrue what they intended to convey.

Analysis of the Application

Having set out the law, and expressed the difficulties I have encountered in comprehending the applicant's founding affidavit, I proceed to analyze, as best I can, the application in casu in the understanding that the applicant must make out a case for relief under Rule 449(1)(b) of the rules of this court.

He must point out to the ambiguity, patent error, or omission which he alleges that the court made in its judgment in case no. HC6970/16. Once he has done this, he must satisfy me that the ambiguity or patent error or omission is such that I should be persuaded to exercise my discretion to exercise to set aside the judgment as prayed for by the applicant in his draft order.

The discretion which I am empowered to exercise, as with any judicial discretion, must, of course, be exercised judiciously which connotes that the discretion must be based on what is fair in the circumstances of the case whilst applying rules and principles of law.

By giving the court or judge a discretion to exercise the powers given in Rule 449, the applicant must understand, as a corollary, that he has no right or entitlement to demand the relief as of right.

I proceed to briefly outline the material facts arising or discernible from the judgment of this court prepared by my sister CHIGUMBA J in case no. HC6970/16 (ref HH660-16) which judgment the applicant seeks to impugn in this application.

On 1 September 2016, Case No. HC6970/16, in which the applicant therein was the applicant, was listed on the unopposed roll following several postponements by other judges who raised various queries. CHIGUMBA J, in her judgment HH660-16, which the applicant has annexed to his present application dismissed that application on the basis that:

“(a) There is no cause of action thereof and the relief sought is incompetent.

(b) The papers are defective in that they do not comply with order 32 of the rules of this court.”

The applicant, as evident from the judgment, wrote several letters complaining about the dismissal of his application and requesting, if not demanding, for reasons for the order. I have gone through the actual court record in case no HC6970/16 because, in this application, the applicant has just bundled together annexures in the form of documents whose relevance and purport is not clear to me.

I should, at this stage, indicate that the present application was opposed by the first respondent which filed its opposing affidavit on 17 November 2016.

In paragraph 3 of the opposing affidavit, the deponent to the second respondent's affidavit states that he has “read and understood the applicant's founding affidavit…,.” I do not purport to deny his assertion that he has understood it save to state that I unfortunately have not understood it especially reading it in the context of an application purportedly being made under Rule 449 of the High Court Rules.

The contents of the founding affidavit are convoluted, twisted, and difficult to follow.

The applicant attacks the learned CHIGUMBA J as being careless, abusing authority, and going on a frolic of her own in how she dealt with the application HC6970/16. He then speaks about distress suffered by the second respondent which compels her to beam. He speaks of politics creating difficulties in his love affair with the second respondent, more particularly, that ZANU (PF) is blocking him from marrying the second respondent.

In paragraphs 14 and 15 of his founding affidavit, the applicant states as follows:

“14. The (i) beaming which is the act complained of; and (ii) the failure or omission to clarify about whether or not there is political meddling blocking the love affair going right to marriage; and (iii) the failure or omission to clarify or confirm whether or not I can marry her by the second respondent are the acts of carelessness or negligence which judge Chigumba fails to come alive to. See paragraph 37 of the applicant's founding affidavit on page 61. The civil wrong is negligence or carelessness.

15. The 2nd respondent was careless or negligent, in the failure to clarify about the acts or omissions that are complained of about which were specified or itemized in paragraph 37. The negligence or carelessness or failure or omission to clarify by the second respondent as itemized in paragraph 37 of the applicant's founding affidavit in case no: HC6970/16 is the civil wrong or delict or tort or common law breach of the duty of care complained of.”

From the above paragraphs, I got the impression that the applicant was arguing that the learned judge failed to understand or appreciate the cause of action in case no. HC6970/16.

The applicant then attempts to extrapolate the cause of action which the learned judge failed to appreciate or discern.

If I am correct in so holding, then, the applicant is ill-advised to seek recourse in terms of Rule 449(1)(b). Rule 449(1)(b) is not intended to circumvent the process of appeal.

A person who is dissatisfied with the judgment of this court, as would appear to be apparent in this application, if one has regard to the applicant's quoted and other averments, should have the judgment tested by a higher court, on appeal, rather than seeking to have the functus officio court or judge review its or his or her judgment and setting it aside as prayed for by the applicant.

The applicant's thought pattern has left me wondering whether he is compos mentis. I have already indicated that his documents are convulted. This equally applies to his thought pattern. For example, in paragraph 24 of his founding affidavit, which he has typed in bold, he states:

“24. As I write this applicant's founding affidavit: next door neighbours, at 7223A, 25th Street Western Triangle, High Field are emitting alternately both chemical and herbal very pungent smokeless smells. Which means it is just, I am having to deal with a probable political malevolent confederacy of a behemoth nature. And the second respondent is booming/beaming.”

Apart from the above deposition not having any relationship with the alleged ambiguity or errors or omissions in CHIGUMBA J's judgment, one cannot make out the content of the same. It is for this reason that I have found myself questioning the mental composure of the applicant.

I will, among other further meaningless paragraphs, quote paragraph 29 in which the applicant avers:

“29. Possibly, the Judge is complicity. Isn't she? In the postulated most-likely scheme of ZANU (PF) of wanting me to die of AIDS than marry as a targeted person by my political most inveterate adversary, Mr Mugabe, the president of Zimbabwe. What motivated the dismissal. All it does is to seem to confirm my allegations. So where have I lied against ZANU (PF). What motivates the Judge? Is she really incompetent?”

I note that CHIGUMBA J described averments made by the applicant, in his founding affidavit in HC6970/16, inter alia, as jumbled, garbled, and insensible and that no useful purpose could be served by repeating them.

I find myself, after painstakingly trying to make head or tail of the applicant's averments, having to say that the pattern observed by CHIGUMBA J has been repeated.

Although the first respondent has filed opposing papers on the merits, I cannot fathom why the respondent has been made a party to this application. No relief is sought against the first respondent and it is mind boggling why the first respondent would be cited as a party in an application based on Rule 449 of the High Court Rules.

To add salt to injury, the applicant, in his draft order, prays for the setting aside of the judgment in HC6970/16 with costs against the first respondent.

Whilst Rule 449(2) enjoins the court or judge to satisfy it or himself that all parties whose interests may be affected by an exercise of the powers set out in the Rule are made aware of any application made under Rule 449(1), it is not apparent as to how the first respondent is an affected party whether explicitly or implicitly.

The Judicial Service Commission does not supervise the content of a judge's judgment nor does it superintend or influence judgments. It was also not a party to case no. HC6970/16. There is also no reason advanced by the applicant to support or justify a costs order against the first respondent.

I do agree, though, with the first respondent when it states as follows in paragraph 16 of the opposing affidavit:

“16. The applicant has engaged in paranoid delusions throughout his Founding Affidavit, initially accusing everyone, from the President, the Judges of the High Court, political parties, alleged members of the Central Intelligence Organisation, and even the second respondent, whom the applicant alleges to love, of having a sinister plot against him simply because a judgment was entered against him.”

In particular, the applicant has made un-mitigated and virulent attacks on the judge of this court, CHIGUMBA J, without substantiation. He, among other expletives and profanities, accuses the judge of corruption, carelessness, and negligence in an open demonstration of contempt of the judge and court's authority simply because his unopposed application was dismissed for want of merit.

Whilst it is the right of every person to petition the courts, with the courts having a corresponding duty to adjudicate on all matters which come before them, the right does not include the right to abuse the courts and judicial officers.

This application is not only devoid of merit but lacks bona fides. It was filed by a delusional applicant who simply considered that the court, or judge, was wrong to dismiss his application. He then went into attack mode and mounted a sustained attack on the judge and anyone whom he thought, in his delusional state, to be against him.

Courts have a duty to guard the abuse of the court process, and, where there is unmitigated abuse, as in this case, it is only reasonable, expected, and indeed proper, for the court to shut its doors to the abuser and/or place such abuser on terms with regards how he may be allowed to exercise his rights of access to the courts.

There is nothing ambiguous in the judgment delivered by CHIGUMBA J by any stretch of imagination. There is no error or omission discernible - let alone proven by the applicant. The only error is the applicant's perception, which is ill conceived, that he should have been granted the order which he sought. He now seeks to argue why the judge should be held to have been in error by making all sorts of baseless, unintelligible arguments and accusations which clearly fall outside the scope of Rule 449.

I have already indicated that, if the applicant had been properly advised, he should have noted an appeal.

Before rounding off my judgment, I need to comment on a point in limine taken by the first respondent in paragraph 9 of the opposing affidavit, that the applicant adopted a wrong procedure in filing a chamber application for rescission of judgment instead of a court application.

The first respondent argues that because Rule 449(2) requires that interested parties be served, an application under Rule 449 should be brought as an ordinary court application.

I do not agree.

The first respondent should seek guidance from not only Rule 226(2) but should also have regard to Rule 241 and Rule 242.

It is not a correct statement of the law to hold that where a chamber application to a judge is to be served on other interested parties, such application should be brought as a court application or becomes a court application. The correct statement of the law, as I understand it, is that all chamber applications, unless excepted in terms of the exceptions in Rule 242, should be served on all interested parties. This is clear from a reading of Rule 242(1) of the Court Rules.

Thus, reverting to Rule 449, the applicant, or a party, seeking to utilize the Rule for relief can file a chamber application to a judge or a court application. The fact that the party has to notify interested parties does not work to convert the chamber application to a court application. It is on this basis that I have dealt with this chamber application, albeit it being opposed.

I also note that in terms of Rule 229C, the adoption of an incorrect procedure between a court and chamber application does not ground dismissal of the application.

I thus refused the relief of dismissal which the first respondent had prayed for in paragraph 11 of its opposing affidavit.

To conclude my judgment, it is my considered view that this application, for reasons I have pointed out, lacks merit and bona fides. It is, as already alluded to, a clear abuse of the court process.

The matter cannot just end with its dismissal because there is no gainsaying that the applicant will relent his abuse of the court processes. He is the kind of person who is so litigious over frivolous and baseless issues that a sanction is necessary as proposed by the first respondent to stop him from abusing the court process; see Munonyara v CBZ Bank Ltd & Ors HH91-15.

The first respondent has cited the judgment of this court in City of Harare v Tendai Susan Masamba HH330-16 to the effect that courts will shut their doors, justifiably, to curb abuse of their processes; see also Mhiri v Mapedzamombe 1999 (1) ZLR 561.

I have also noted from the judgments of MAKONI J involving the applicant in Ignatius Masamba v Director of Zimsec HH701-16 and Ignatius Masamba v ZTEDC HH699-16 that the learned judge noted in both cases that the applicant was given to dwelling on irrelevancies which were incomprehensible to a great extent. In both cases, which the learned judge dismissed, the applicant was debarred from issuing any process out of this court without first seeking the leave of the court. The two judgments were delivered on 9 November 2016.

The application before me was filed on 7 November 2016.

The learned judge's order did not affect process already filed before the court. This notwithstanding, I consider that it is proper for me to take into account the two matters as clear evidence that it is within the applicant's disposition to institute vexatious and frivolous proceedings and to abuse the process of court. There is need to protect other litigants from abuse as well.

In my judgment, the application in this case bordered on contempt of the judge and the courts.

It is clear that there was no basis for a Rule 449 let alone Rule 449(1)(b) invocation which was apparent or proven. CHIGUMBA J's judgement is clear as crystal. There is nothing to correct or clarify. That the applicant disagreed with the judgment is a different matter which is not remedied by Rule 449. The judgment however clearly shows that the applicant's claim was not sound at law.

For abusing the judge and court as well as for unnecessarily citing the Judicial Services Commission in circumstances where the reasons thereof are not clear other than to bring it to the Commission's attention how the applicant had little regard for the judge, a punitive costs order as prayed for by the first respondent will be justifiable.

I also propose to issue a decree of perpetual silence against the applicant.

Such an order is drastic in its nature and effects as, in essence, I have to order the applicant to abandon this action causa, that is, the one dismissed by CHIGUMBA J in case no. HC6970/16. It is akin to an order for permanent stay of proceedings; compare Sibanda v Attorney General & Anor SC44-07. The case is frivolous and vexatious and without legal basis.

See Ashman (Private) Limited v Harare Car Breakers Sales & Repairs (Pvt) Ltd & Bobby Maparanyanga HH26-04.

Admittedly, this court plays a central role in marriage dissolutions and consequential relief. The court cannot, however, be expected to nor is it empowered to set conditions under which a man who wishes to marry should pay lobola.

For the avoidance of doubt, in the application dismissed by CHIGUMBA J, in HC6970/16, the applicant had sought the following relief as set out in his draft order:

“IT IS ORDERED THAT:

1. The applicant be and is hereby granted his wish to be allowed to pay lobola at his own convenience on a date to pay that he will request from the in laws - only if the respondent is a virgin.

2. The respondent is ordered to stop her part in the beaming.

3. With no order as to costs.”

The applicant has no right of action under any cognizable law in this jurisdiction and it is therefore justiciable to order him to abandon the action by issuing a decree of perpetual silence.

Disposition

In the result, I make the following order;

1. The chamber application be and it is hereby dismissed.

2. A decree of perpetual silence is hereby granted against the applicant with regards any claim which the applicant may make seeking an order of court to permit him to marry the second applicant and any consequential or alternative relief.

3. The applicant shall pay the first respondent's costs on the legal practitioner and client scale.

HH390-18 : MIDLANDS STATE UNIVERSITY vs ALOIS MATONGO
Ruled By: MUZOFA J

The applicant seeks an order for perpetual silence against the respondent.

The order sought is, in the alternative, as follows:-

“1. The respondent be and is hereby ordered to maintain perpetual silence against the applicant, that is to say, the respondent be and is hereby barred and interdicted from instituting any litigation, claim, application, action against the applicant.

2. An order that respondent pays applicant's legal costs on an attorney and client scale; or that

3. The respondent be and is hereby ordered not to commence any litigation, claim, application, action against the respondent without first obtaining leave of this Honourable Court (which this Honourable Court, depending on the facts, will either decline to grant, or will grant subject to precedent (sic) terms and conditions which this Honourable Court, may, in its discretion, stipulate).

4. An order that the respondent pays applicant's legal costs on an attorney and client scale.”

The respondent was employed by the applicant as the director of the Graduate School of Business Leadership at the Midlands State University. Following allegations of misconduct against the respondent he was suspended, charged, and, after a disciplinary hearing, he was dismissed. An internal appeal was unsuccessful.

According to the applicant, after the dismissal of his internal appeal, in 2011, there was no peace for the applicant. Between 2010 and 2017 the respondent filed a total of thirteen (13) applications, actions, and appeals before the Labour Court and the High Court. The applicant stated that although in most cases the respondent was unsuccessful and costs granted against him, it did not pursue the issue on costs as it was aware that the respondent had no means.

The application is opposed.

The respondent does not deny filing the applications or claims. He said they were all completed. Only one matter is still pending between the parties. His main contention is that in terms of section 86 of the Constitution of Zimbabwe he has a right to access justice and the courts of law for redress. Such an application is a negation of his constitutional right. In addition, it was submitted that this court cannot grant an order for perpetual silence regulating processes of other courts. It can only issue an order that relates to the abuse of its own process.

At the hearing of the matter, the applicant sought to amend its order....,.

The notice to amend the draft order was filed on 6 March 2018 to read:

“1. The respondent be and is hereby ordered to maintain perpetual silence against the applicant, and is hereby barred and interdicted from instituting any litigation, claim, application, action, against the applicant, in any court or legal fear, in respect of the respondent's termination of employment, reinstatement of his appeal that was dismissed by the Labour Court, or purported claim of terminal benefits.

2. An order that respondent pays applicant's legal costs on an attorney and client scale.

Alternatively;

3. The respondent be and is hereby interdicted and restrained from instituting any action, application, or suit or proceedings in this Honourable Court, in the Labour Court, and in any other court, against the applicant or its employees, or its agents relating to the applicant or its agents, in respect of proceedings which relate directly or indirectly to the respondent's termination of employment, reinstatement of his appeal which was dismissed by the Labour Court, and purported terminal benefits due to the latter from the applicant, without leave of this Honourable Court first being applied for and obtained.

4. The respondent be and is hereby interdicted and restrained from setting down any matter already filed or commenced with this Honourable Court, the Labour Court, or any other Court subordinate to this Honourable Court, without leave of this Honourable Court first being applied for and obtained.

5. The Registrar of this Honourable Court, and the Registrar of the Labour Court, and the Registrar of any other Court subordinate to this Honourable Court shall not issue any process commencing any action or any application or set down any matter already filed or commenced by, on behalf of, or at the behest of, Mr Alois Matongo in connection with the termination of his employment, and the purported claim of terminal benefits or reinstatement of his appeal that was dismissed by the Labour Court, without the leave of this Honourable Court first being applied for and obtained.

6. Any application for leave to institute proceedings or set down any matter shall be made on notice to the applicant.

7. The respondent is to pay the costs of this application on the legal practitioner and client scale.”...,.

I now deal with the merits of the case.

In my view, two issues fall for determination;

(a) Firstly, whether the respondent has abused the court's process to warrant the order sought; and

(b) Secondly, whether the High Court can issue an order regulating process in other courts.

I had opportunity to peruse the judgments and orders between the parties. The following is evident;

1. Alois Matongo v Midlands State University LC/MD/18/11 (Labour Court, Gweru); an appeal against his dismissal. The appeal was dismissed. No evidence that an appeal against this decision was filed. The respondent was not legally represented. Each party to bear its costs.

2. Alois Matongo v Midlands State University HH1744/13; respondent issued summons action in this court claiming payment of a total of US$120,643=28 for salaries, cash in lieu of leave, cash in lieu of contract leave and cash in lieu of sabbatical leave. The matter was dismissed for want of jurisdiction with costs. The applicant was legally represented.

3. Alois Matongo v Midlands State University LC/MD76/13 (Gweru Labour Court); a claim for terminal benefits claim dismissed with costs. The respondent was legally represented.

4. Alois Matongo v Midlands State University (Arbitration award) award dated 15 September 2014; claim for terminal benefits. Claim dismissed based on prescription. The applicant was not legally represented.

5. Midlands State University v Alois Matongo LC/MS/APP/71/14 [LC/MS/ORD 54/15] (Chamber application for dismissal). Application granted. Appeal dismissed, the respondent in default at filing heads of argument. Costs were granted against the respondent.

6. Midlands State University v Alois Matongo LC/MD/APP/01/15 [LC/MD/ORD 2/15]. Chamber application for dismissal of a chamber application for condonation of late filing of heads of argument. Application granted. Chamber application for condonation dismissed with costs.

7. Alois Matongo v Midlands State University LC/MD/ORD 84/15. Application withdrawn by consent. Costs granted against the applicant. The applicant was legally represented.

8. Alois Matongo v Midlands State University LC/MD/ORD/157/16. Application for rescission of judgment. Matter struck off the roll. Costs were to be in the cause. The applicant was legally represented.

9. Alois Matongo v Midlands State University LC/H/ORD/1049/2017. Application for condonation of late filing of an application for rescission of judgment. Application removed from the roll in terms at Practice Direction 3 of 2013. No order as to costs. The applicant was legally represented.

10. Midlands State University v Alois Matongo LC/H/687/16. Application for an order of perpetual silence. Application dismissed for want of jurisdiction. No order as to costs. The respondent was legally represented.

11. Alois Matongo v Midlands State University LC/H/124/18 (ref LCH/APP/528/217 cited as 520/17. Application for condonation of late noting of an application for rescission of default judgment granted under LC/MS/APP/71/14. The application was struck off the roll with costs. The applicant was legally represented. This is the matter that was pending at the time this case was filed.

It is clear that case number 5 and case number 6 were preceded by an appeal and application by the respondent. The court failed to locate the two files that relate to those proceedings. Of the eleven files, orders, and judgments perused, in nine of the cases the respondent was legally represented. In six of the cases costs were granted against the respondent.

The applicant did not make any effort to recover the costs….,.

A decree of perpetual silence is recognized as a legal remedy in deserving cases. This court has inherent power to prevent abuse of its own process where there is a demonstration that the defendant or the respondent is a serial litigator whose underlying intent is to abuse not only the court's process but his adversary too.

In terms of section 69(3) of the Constitution, every person has the right of access to the courts. This right, though, can only be exercised reasonably and with due regard for the rights and freedoms of other persons in terms of section 86(1) of the Constitution. In essence, it is a balancing act.

In this balancing act, courts have pointed out that this drastic remedy, that muzzles an individual, should be granted in exceptional cases. It is not granted on the asking; see Hudson v Hudson 1927 AD…,.

The full Bench in Brown v Simon 1905 TS 311 analyzed various leading cases in such applications; the court concluded that the following considerations should be made;

1. The nature and subject matter of the claim;

2. The likelihood of prejudice to either party if the decree is granted;

3. The balance of convenience as shown by the circumstances of each case.

Bearing in mind the said principles, I shall proceed to determine the case.

The Claim(s)

The respondent filed numerous cases before the Labour Court. He did not deny it. However, he said he did not abuse the court process.

A reading of case law shows that there can be no one size fits all definition of abuse of court process. In jurisdictions where abuse of process is recognized as a remedy, the courts have looked more to the purpose for which the process is used. It is the improper use of process, after its issuance, in order to accomplish a purpose for which the process was not designed. Bone v Bernard 2008 Ark App Lexisti 569. Such abuse of process includes ligation in bad faith meant to harass and vex the respondent.

In casu, the respondent, upon his dismissal, he noted an appeal with the Labour Court. The appeal was dismissed. He did not appeal against this dismissal to the Supreme Court. It may be safely inferred that he came to terms with his dismissal. Thereafter, he filed an application to the Labour Court for his terminal benefits and/or outstanding salaries. His efforts to get his dues birthed the numerous applications and an appeal to the Labour Court and this court. It is evident, from the court records, that when his claim for benefits was dismissed by the arbitrator, he noted an appeal to the Labour Court. The appeal was dismissed for want of filing of heads of argument by the respondent. Thereafter, he mounted several applications for condonation and rescission of judgment all with a view to undo the dismissal of the appeal so that the matter could be heard on the merits. His efforts continued to hit a brick wall.

I must say, the respondent was represented by legal practitioners. This is a clear case where the legal practitioners failed to act timeously in terms of the Labour Court Rules, and, in some instances, a sheer lack of appreciation of the procedure in the Labour Court. It is unfortunate that it is the litigant who bears the brunt of such poor workmanship resulting in numerous applications to correct the anomalies.

In our jurisdiction, I have come across very few cases where the decree of perpetual silence was granted; in Ignatius Masamba v The Secretary, Judicial Service Commission HH283-17; City of Harare v Masamba HH330-16; Vigour B Fuyana v Moyo SC54-06; and Mhini v Mupedzamombe 1999 (1) ZLR 561.

What cuts across the cases is that a plethora of cases are filed stemming from one cause of action. In some cases the actions are not directed to one person only, they involve other persons including judicial officers who are impugned in the process. The respondent's conduct, in asserting his rights, must be such that it clogs the court system with groundless and unending litigation. In those cases, it can be said both the courts and the sued parties were harassed by litigation with no end in sight.

In Mabwe Minerals (Pvt) Ltd and 3 Ors v Peter Valentine and Anor HH793-16 the court dismissed an application for perpetual silence despite the fact that there were thirty (30) cases between the parties. The court noted that the applicant contributed to the confusion that beset the respondents who genuinely believed they had a grounded cause of action.

In casu, one claim is pursued, the cause of the numerous applications in the Labour Court is to reverse the dismissal of the appeal - which process is allowed in terms of the Rules. The respondent was genuine in the pursuit of his claim for terminal benefits. The purpose of the applications was not to abuse the process but to protect his rights.

In the circumstances of this case, I cannot find a deliberate intention to vex the applicant by the respondent nor abuse the court process as a result of the claims filed so far. Apparently, the one matter that the respondent submitted was outstanding before the Labour Court has since been determined.

Prejudice

The likely prejudice to the applicant, in the event the order is granted, is set out on p5 of the founding affidavit. I say this because a case stands or falls on the founding affidavit, on paragraph(s) 13.4 and 13.5 it is alleged;

“13.4 In the process of doing so, the applicant is not pursuing any recourse to vindicate any legitimate rights, but is, instead, harassing the applicant and putting it to unnecessary legal expenses.

13.5 There is no chance of the applicant recovering its expenses through an award of costs, as to applicant's knowledge and belief, the respondent is unemployed, lives in penury and abject poverty, and is a man of no financial means.”

And at 28.1;

“In five (5) matters that the applicant was awarded costs, it did not pursue the recovery of the costs, against the respondent, because to applicant's best knowledge, the respondent is a man of no means. To pursue recovery of costs under such circumstances would, at best, be vindictive, and, at worst, fishing in a dry river bed.”

I do not believe the respondent does not have a legitimate claim.

Nowhere in the founding affidavit does the applicant indicate it paid the terminal benefits and outstanding salaries.

The applicant's main contention is that it is incurring unnecessary legal expenses.

The foregoing extracts, from the founding affidavit, show that the applicant was awarded costs in five (5) cases although my count was six (6) cases. The costs were not recovered through a deliberate decision by the applicant not to recover the costs.

HERBSTEIN and Van WINSEN in The Civil Practice of the High Court Vol. 2, 5th ed…, succinctly set out the purpose of an award of costs as follows:

“…, to indemnify him for the expense to which he has been put through having been unjustly compelled to initiate or defend litigation, as the case may be.”

Even in deciding the scale of costs, courts have granted costs on a higher scale to deter unnecessary litigation; see Wilbert Munonyara v CBZ Bank Ltd and 2 Ors HH91-15, where costs on a legal practitioner and client scale were granted being admonitory costs to signify the court's displeasure at being taken for granted by litigants.

In an application such as this, recovery of costs, in my view, should be a deterrent to the respondent. An applicant should therefore demonstrate that it has recovered costs - yet the respondent continues to file litigation.

In the alternative, where an attempt to recover costs is unsuccessful, and the respondent is a self-actor with no means, there must be proof of a nulla bona return. The purpose of that return is to show that, as the applicant continues to incur legal costs, they cannot be recovered, and the respondent is a self actor with no legal costs, as was in Mhini v Mupedzamombe 1999 (1) ZLR 561.

In casu, there was no attempt to mitigate the prejudice by the applicant as per its admission. Its reasons for doing so are based on conjecture with no evidence, yet the respondent had legal representation in some of the cases.

On the other hand, the order sought, to silence the respondent, alternatively, to allow him to approach the courts with leave impinges on one of the respondent's fundamental rights - to access the court.

In the event that the decree of perpetual silence is granted, the respondent is likely to be prejudiced. The balance of convenience favours allowing the respondent to pursue his claim.

In view of the foregoing, this is not a proper matter for an order of perpetual silence.

I leave open the second issue whether this court can grant such a decree regulating process in other courts.

Costs

Costs are always in the discretion of the court and generally follow the event. I see no reason to depart from this approach.

Accordingly, the following order is made;

1. The application be and is hereby dismissed with costs.

CC02-20 : JOSEPH CHANI vs JUSTICE HLEKANI MWAYERA and MICHAEL MUGABE and MUSUTAMI CHIFAMUNA and NATIONAL PROSECUTING AUTHORITY
Ruled By: MALABA CJ

Section 85(1)(a) of the Constitution..., reads as follows:“85 Enforcement of fundamental human rights and freedoms(1) Any of the following persons, namely —(a) Any person acting in their own interests;…,. is entitled to approach a court, alleging that a fundamental right or freedom enshrined in this Chapter has been, is being, ...

Section 85(1)(a) of the Constitution..., reads as follows:

“85 Enforcement of fundamental human rights and freedoms

(1) Any of the following persons, namely —

(a) Any person acting in their own interests;…,. is entitled to approach a court, alleging that a fundamental right or freedom enshrined in this Chapter has been, is being, or is likely to be, infringed, and the court may grant appropriate relief, including a declaration of rights and an award of compensation.”

The above provision does not require the applicant to prove an actual violation of his rights. It will suffice for the applicant to merely allege an infringement of his fundamental rights for an application to be properly before the Court.

In Meda v Sibanda and Ors 2016 (2) ZLR 232 (CC)…, the Court held as follows in this regard:

“It is clear from a reading of section 85(1) of the Constitution that a person approaching the Court in terms of the section only has to allege an infringement of a fundamental human right for the Court to be seized with the matter. The purpose of the section is to allow litigants as much freedom of access to courts on questions of violation of fundamental human rights and freedoms with minimal technicalities.

The facts on which the allegation is based must, of course, appear in the founding affidavit....,."...,.

The Court, in Williams and Another v Msipha N.O. and Others 2010 (2) ZLR 552 (S) held…, that:

“The Constitution guarantees to any person the fundamental right to the protection under a legal system that is fair but not infallible.

Judicial officers, like all human beings, can commit errors of judgment. It is not against the wrongfulness of a judicial decision that the Constitution guarantees protection. A wrong judicial decision does not violate the fundamental right to the protection of the law guaranteed to a litigant because an appeal procedure is usually available as a remedy for the correction of the decision. Where there is no appeal procedure, there cannot be said to be a wrong judicial decision because only an Appeal Court has the right to say that a judicial decision is wrong.”…,.

CC16-19 : PERFECT NYATHI vs THE STATE
Ruled By: MALABA CJ, GARWE JCC, MAKARAU JCC, GOWORA JCC, HLATSHWAYO JCC, PATEL JCC, GUVAVA JCC, MAVANGIRA JCC and BERE JCC

Section 69 of the Constitution has four subsections making provision for different but related matters on the right to a fair hearing, such as having a fair trial within a reasonable time before an independent and impartial court, having access to the courts, and having access to legal representation.

CC08-20 : FEATHERS MUKONDO vs THE STATE
Ruled By: MALABA CJ

In Lane and Fey NNO v Dabelstein and Ors 2001 (2) SA 1187 (CC) the Constitutional Court of South Africa held…,:“Even if the [Supreme Court of Appeal] erred in its assessment of the facts, that would not constitute the denial of the ['right to a fair trial and to fair ...

HB189-18 : CLAUDIUS MANAMELA and BRIGHTON NANGA and SIBONGILE MANAMELA vs ROSEWELL ZULU and APOSTOLIC FAITH MISSION OF AFRICA INTL and CLEMENT NYATHI and APOSTOLIC FAITH MISSION OF AFRICA
Ruled By: MABHIKWA J

On 30 January 2018, the applicants caused to issue legal proceedings, an application, out of this Honourable Court –

“In the High Court of Zimbabwe, held in Bulawayo. The applicant sought an order that it be declared that:

(1) That the President of the Apostolic Faith Mission of Africa International is Reverend Zulu.

(2) That the President of the Apostolic Faith Mission of Africa is Reverend Clement Nyathi.”

On the day of the hearing, on 10 July 2018, the first applicant quickly made what he termed an application for the matter to be removed from the roll.

That application, which must have taken everyone by surprise, was vigorously opposed by the first, second and fourth respondents.

The court may mention, at this stage, that, for all intents and purposes, it became clear, as the matter progressed, that this was an application (i.e. the main application and the “mini” application for removal from) were being orchestrated by the first applicant.

The second applicant, despite being present in court, and allegedly appearing in an individual capacity, said virtually nothing apart from bending over for a second to say he was associating himself with the first applicant's submissions - and this only when asked by the court.

The third applicant was not even present, although, upon inquiry by the court, the three (3) applicants were said, by the first applicant, to be appearing purely in their individual capacity.

The first applicant then told the court that for some reason, the third applicant had failed to attend court.

It was however clear that the first applicant, as he went on over-drive in submissions, was really speaking on behalf of all three (3) applicants - and moreso supposedly on behalf of a “church”.

This court had to discover later on…, that the third applicant is his wife, as shown by various other matters brought before the courts.

As the first applicant insisted, the court decided not to shut him out, as an unrepresented litigant, but to give him a long ear so to speak.

The court still asked him, however, to be clear on what application exactly he was making; in terms of what legal basis he was making it; and the reasons why he was making it.

The first applicant then said that this matter was heard before Mr Justice BERE who clearly recused and also clearly stated that no Judge from the Bulawayo High Court would hear the matter. He said that Justice BERE thus and then recused himself on his behalf and on behalf of all Bulawayo High Court Judges.

He went on to say both parties were therefore of the view that the matter would be transferred elsewhere and were shocked to be told that they were appearing before me.

He went on to say both parties would still press that no Bulawayo High Court Judge should hear the matter hence the application for its removal from the roll.

The court later learnt, from a copy of an order produced by counsel for the first, second and fourth respondents, and after reading a 'swarm' of other matters by the same litigants, that;

(i) Firstly, my brother Mr Justice BERE…, did not recuse himself from, this matter.

(ii) Secondly, and in any case, he did not and could not have legally recused himself on behalf of all other Bulawayo Judges. He clearly recused himself on his own behalf only.

(iii) Thirdly, both parties, the first applicant seemed to mean that the applicants and the respondents were all anticipating that the matter would be transferred elsewhere or would still pursue for that position. Clearly, that was not the case, he must himself have been taken by surprise, not only the respondents but also the second applicant. The third applicant was not in attendance anyway.

When the court sought to confirm whether indeed a transfer of the matter was the expectation and wish of both parties, counsel for the first, second, and fourth respondents emphatically disagreed and submitted that the court is being misled.

Counsel for the first, second, and fourth respondents also shed light on the plethora of cases, mostly applications brought before the courts by the three (3) applicants and/or their group. He further submitted that the applicants merely make a flurry of accusations, unfoundedly, with the sole purpose of diverting the court from its core business and mandate to properly deal with issues before it.

Ultimately, the first applicant in fact then and again went overdrive in his accusations, adding to the list counsel for the first, second, and fourth respondents himself and the Registrar's officer.

He even accused all Bulawayo Judges of “discussing” these matters before going into court.

He could not back down - even after being reminded that the Judge in this hearing had just come from Harare.

Unclear and unheralded as it sounded, the first applicant was directed to file his clear and written application before 18 July 2018 and serve it on the defendants' counsel.

He did not by close of business on 17 July 2018. The application/request had no merit, and, in any case, was vigorously opposed.

It is dismissed.

Coming to the main application, the court had sought to look at all the other matters involving the parties that kept on coming up in this application to have a better understanding of what was going on.

This was moreso because, from the reading of the papers, one was left wondering why such a matter was brought to court by way of an application in the first place. In fact, it had been initially brought as an urgent chamber application.

I must say that the respondents at…, point 18.4 of their opposing affidavit also make the same point; that the application procedure should not be used in matters that are as contentious as this one.

Secondly, the applicants, in their notice of application, state that the application is made in terms of Order 30 of the High Court Rules, 1971.

Order 30 provides for interpleader applications. The facts in this application have nothing to do with an interpleader – absolutely.

In addition to the court's reservations, as well as point 18.4 of the respondents' opposing affidavit, my brother, KAMOCHA J…, stated, on 5 February 2017, in case number HC302/17, that:

“This matter appears to have apparent and numerous disputes of fact about the ownership of the church and those can only be settled through a fully fledged trial.”

He dismissed the application.

This court managed to get 10 cases from this Honourable Court involving these parties - at times with other members of the church(s) involved. But, there appears to be about half a dozen more when considering those at the High Court, Harare, the Supreme Court, and Constitutional Court as well as the Magistrates' Court.

95% or more have been brought by the applicants or with their involvement.

There is no doubt, after reading a majority of those cases, that the applicants have taken it upon themselves to throw applications of whatever nature to these courts like confetti at a wedding.

Indeed, like my brothers and sister Judges before, it is like a hobby to them.

In my view, they seem like people who sit over coffee laughing and agree to file yet another application in the hope that they may get a contradicting decision, laugh their lungs out, and use it.

I would not agree more with my brother MATHONSI J, in case number HB236-17, that, “is common ground that when the church split in 2014, Manamela went with the group that totally moved away from the church premises…,. Quite clearly, Manamela wants to use the court to allow him to get into the premises which he left in 2014.”

The Judge went on to highlight what has been highlighted in various judgments involving the same litigants, that, from the checkered history of the matter, the applicants file application in the courts seeking literally the same relief, that of being allowed to “sneak back” into the church premises they abandoned out of their free will. This has become their pastime.

The current application is no exception.

MANGOTA J and the Supreme Court have stated the same.

In the current application, the applicants curiously make an application which seemingly brings no benefit to them but to one of the respondents in their application. This is the third respondent, a Reverend Clement Nyathi, who, for obvious reasons, does not oppose the application and makes no appearance.

A reading of the plethora of the other cases shows that the third respondent is, in fact, part of the applicants only thrown in the current case among the pigeons so to speak.

To that extent, this court would agree with counsel for the first, second, and fourth respondents that the intention is to pool wool over the court's face.

The court will agree that this application is more of an application made on behalf of Clement Nyathi, who has lost all matters involving and concerning the leadership of the church and control of the assets thereof. They are nothing more than foot soldiers of Clement Nyathi. They have lost almost all the matters.

The court will re-iterate my brother MATHONSI J's warning, that, a litigant or litigants cannot be allowed to enjoy filing frivolous applications at the same time abusing the court and other litigants.

This court will add a warning, to the first applicant in particular, that, it cannot allow a situation where officers of the court, legal practitioners included, are just scandalised by spurious allegations completely unfounded and unsubstantiated.

Surely, the allegations against BERE JA…, were quite stinging; a pattern developed when, in this case, similar allegations were made on counsel for the first, second, and fourth respondents, and the Registrar - all this because the applicant wants, at all cost, to achieve a particular objective at a particular time.

The court can only register its disdain for such an attitude to litigation and may not appear to condone it in future.

These courts are not meant for past-time games but for the genuine resolution of genuine disputes by genuine litigants.

In the result, the application be and is hereby dismissed.

The applicants be and are hereby barred from commencing litigation, whatsoever, in any court of Zimbabwe, in connection with, or concerning the first respondent or the respondent church whether described as Apostolic Faith Mission of Africa or Apostolic Faith International, without the leave of a Judge or the High Court of Zimbabwe.

The applicants be and are hereby ordered, jointly and severally, the one paying the other to be absolved, to pay the costs of suit of this application on an attorney and client scale.

HH59-09 : TRUST CORPORATION SECURITIES (PRIVATE) LIMITED vs L.M. GABILO and DEVORGILLE KATSANZA
Ruled By: UCHENA J

The applicant is a company duly registered in terms of the laws of Zimbabwe. The second respondent is its employee with whom it has had labour disputes leading to this application.The second respondent was suspended from employment pending the resolution of the dispute between her and her employer.The first respondent ...

The applicant is a company duly registered in terms of the laws of Zimbabwe. The second respondent is its employee with whom it has had labour disputes leading to this application.

The second respondent was suspended from employment pending the resolution of the dispute between her and her employer.

The first respondent is an arbitrator who was duly appointed to arbitrate in the labour dispute between the applicant and the second defendant.

The applicant and the second respondent filed written submissions with the first respondent.

The first respondent thereafter called them for a hearing which was not finalised. He called them again to clarify the issue of whether or not the second respondent had secured employment during the period of her suspension.

On 26 June 2007, while counsel for the second respondent was making submissions at the hearing, the first respondent said the second respondent had “told him about how she suffered during the years.” The applicant's counsel asked him to clarify where this conversation took place, but the first respondent did not respond to that inquiry.

That hearing was adjourned without a clarification of the first respondent's comments.

The applicant's counsel followed it up by letter to the second respondent's counsel dated 27 June 2007. The letter was copied to the first respondent. It reads as follows:

“We refer to the arbitration hearing before Mr Gabilo on 26 June 2007.

As you will no doubt be aware, the arbitrator made some remarks indicating that he had granted audience to the claimant and heard certain evidence from the claimant outside the framework of a hearing. The writer sought an explanation as to how this had occurred and the arbitrator gave no response.

Our client is concerned that the arbitrator may have acted improperly as a result of which his impartiality may be in doubt. In this regard, the respondent is entitled to impeach the arbitrator and have the matter referred to another arbitrator.

Please can we have your client's explanation in this regard not later than 29 June 2007.”

The second respondent's counsel did not respond within the stipulated period. The first respondent did not respond even though the letter was copied to him.

The applicant's counsel then wrote to the first respondent on 4 July 2007. The letter reads as follows:

“We refer to our letter of 27 June 2007 addressed to the claimant's legal practitioners and copied to you. We have not heard from the claimant's legal practitioners.

Our client has instructed us, in the circumstances, to address its request for your recusal as arbitrator in this matter on the grounds that the respondent entertains serious doubts as to your impartiality or independence as arbitrator. As indicated in our letter of 27 June 2007, the respondent believes that you have entertained representations from the claimant outside the framework of the arbitration hearing. When we requested that you explain the circumstances in which the claimant had made representations to you, you did not answer that question.

In the circumstances, the respondent seeks your recusal as arbitrator immediately.

Accordingly, you are to refer the matter to the Labour Officer who referred the matter to you for a fresh appointment of an arbitrator. Regrettably, should you not recuse yourself, the respondent shall seek the intervention of the High Court.”…,.

The first respondent did not respond to the challenge, but proceeded to make an award without first rejecting the challenge.

The applicant thereafter applied to this court for an order terminating the first respondent's mandate to arbitrate, and ordering that fresh arbitration proceedings be held within a fortnight.

The applicant is being represented by Mr Shoko, the Group Chief Executive of Trust Holdings Limited. The applicant is a subsidiary of Trust Holdings.

The first respondent did not oppose the application.

The second respondent opposed the application, and raised two points in limine:

(i)...,.

(ii) She also claimed that the applicant's application does not comply with the provisions of Article 13 of the Arbitration Act [Chapter 7:15] (hereinafter called “the Act”)....,.

Compliance with Article 13 of the Arbitration Act

Counsel for the second respondent also raised the issue of procedure arguing that the applicant's application does not comply with Article 13 of the Arbitration Act. He submitted, that, in terms of Article 13(1), the parties should have agreed on the procedure to be used in challenging the arbitrator. He also submitted that the notice of challenge was defective because no evidence was attached to it. He therefore argued that the application does not comply with the procedure through which a challenge to the arbitrator's appointment can be brought to this court.

He further submitted that the arbitrator has already made his award, and, in the circumstances, the applicant should have proceeded in terms of Article 34 of the Arbitration Act.

He submitted that the applicant could not apply to this court in terms of Article 13 of the Arbitration Act because the parties had not agreed on the procedure for challenging the arbitrator.

Counsel for the applicant argued that the application was properly made in terms of Article 13 of the Arbitration Act, as failure to agree on the challenging procedure is not a bar to any challenge arising from what happens during the arbitral proceedings. He further submitted that the letter to the first respondent contains all the information which should be in a statement of challenge and should therefore be accepted as a valid challenge to the arbitrator.

Article 13 of the Arbitration Act [Chapter 7:15] provides as follows:

“(1) The parties are free to agree on a procedure for challenging an arbitrator, subject to the provisions of para (3) of this article.

(2) Failing such agreement, a party who intends to challenge an arbitrator shall, within fifteen days after becoming aware of the constitution of the arbitral tribunal or after becoming aware of any circumstance referred to in Article 12(2), send a written statement of the reasons for the challenge to the arbitral tribunal. Unless the challenged arbitrator withdraws from his office or the other party agrees to the challenge, the arbitral tribunal shall decide on the challenge.

(3) If a challenge under any procedure agreed upon by the parties or under the procedure of para (2) of this article is not successful, the challenging party may request, within thirty days after having received notice of the decision rejecting the challenge, the High Court to decide on the challenge, which decision shall be subject to no appeal; while such a request is pending, the arbitral tribunal, including the challenged arbitrator, may continue the arbitral proceedings and make an award.”

The wording of paragraph (1) of Article 13 of the Arbitration Act favours counsel for the applicant's interpretation.

It states that the parties are free to agree on a procedure for challenging the arbitrator. It does not say that they have to.

It further states that the provision is subject to paragraph (3) of this Article. Article 13(3) mentions two procedures which can be used for challenging the arbitrator:

(i) They can use the agreed procedure; or

(ii) The procedure prescribed by paragraph (2). Article 13(2) provides for a procedure to be followed if the parties do not agree on a procedure to be followed. It specifically states that “failing such agreement, a party who intends to challenge an arbitrator shall…,.”

This means that paragraph (2) procedure is an alternative procedure to be used if the parties do not agree on the procedure to be used.

I would therefore agree with counsel for the applicant that the application does not depend on whether or not the parties agreed on the challenging procedure. It, in my view, depends on whether or not the applicant correctly followed the procedure prescribed by paragraph (2) of Article 13 of the Arbitration Act.

An analysis of Article 13(2) of the Arbitration Act reveals the requirements which should be complied with before a party can request this court to decide on a challenge. They are as follows:

1. The party who seeks to challenge the arbitrator must, within fifteen days of becoming aware of the reason for the challenge;

2. Send to the tribunal or arbitrator a written statement;

3. Stating the reasons for the challenge;

4. The challenged arbitrator can withdraw from his office, or the other party can agree to the challenge; and

5. If the arbitrator does not withdraw, and the other party does not agree with the challenge, then the arbitrator must decide on the challenge.

In terms of Article 13(3) of the Arbitration Act, the rejection of the challenge by the arbitrator leads to the following:

1. The challenging party may, if he is not satisfied by the rejection;

2. Within thirty days of the rejection, request the High Court;

3. To decide on the challenge.

While the challenge is pending in the High Court, the challenged arbitrator or tribunal can continue with the arbitral proceedings and make an award.

In this case, the arbitrator did not respond to the challenge, but proceeded to make an award without dealing with the challenge.

In terms of Article 13(2) of the Arbitration Act, he was bound to decide on the challenge.

Counsel for the applicant argued that, that entitles this court to hear the applicant's application.

Counsel for the second respondent argued that once the award is made it can only be set aside by the High Court in terms of Article 34(2)(b)(ii) of the Arbitration Act.

As already indicated, the procedure under Article 13(2) of the Arbitration Act does not require the parties to first agree on the challenging procedure. The words “failing such agreement” in Article 13(2) means in the absence of an agreement. The applicant's application cannot therefore be dismissed just because the parties had not agreed on the challenging procedure.

The application must however comply with the alternative procedure under Article 13(2) and (3) of the Arbitration Act, which requires the applicant to, within fifteen days of becoming aware of the circumstances on which the challenge is premised, to send a written statement to the tribunal in which the reasons for the challenge will be stated.

Counsel for the second respondent submitted that the applicant's statement was not accompanied by reasons for the challenge. Counsel for the applicant submitted that the letter the applicant wrote to the arbitrator satisfies the requirements of Article 13 of the Arbitration Act.

I agree with counsel for the applicant, as a reading of the Article gives the impression that what is required is a simple statement which informs the tribunal or arbitrator of the reasons why its or his recusal is being sought.

If the intention was for the challenging party to submit an application accompanied by an affidavit in which the reasons for recusal would be stated the legislature would have required the challenging party to apply for recusal instead of sending a statement.

The letter to the first respondent clearly states why his recusal was being sought. It therefore satisfies the requirements of Article 13 of the Arbitration Act. I am therefore satisfied that the applicant's application cannot be dismissed for failure to give separate reasons for the arbitrator's recusal.

On receipt of a challenge, the arbitrator can either withdraw from his office or decide on the challenge.

The other party can agree to the challenge in which case the arbitrator cannot proceed with the arbitration proceedings.

The tribunal or arbitrator cannot ignore the challenge and proceed with the arbitral proceedings as if its or his appointment has not been challenged.

If the challenge is not successful, the challenging party must, within thirty days of receiving the arbitrator's determination on the challenge, request the High Court to decide the challenge.

In this case, the applicant sent a statement of his challenge to both the arbitrator and the other party within the stipulated period. The other party did not agree, and the arbitrator did not respond.

Article 13(3) of the Arbitration Act does not provide for an application to this court until after the arbitrator has given the challenging party notice of his decision rejecting the request to recuse himself.

This therefore means the applicant's application does not comply with the provisions of Article 13(3) of the Arbitration Act [Chapter 7:15].

The Arbitrator has already made an award which the applicant wants to be declared null and void because of the alleged impartiality.

Article 13(2) and (3) of the Arbitration Act permits the arbitrator to continue with the proceedings in spite of the challenge which he will have rejected and the challenging party's request that the High Court determines the challenge.

In this case, he proceeded without first rejecting the applicant's challenge.

This was an irregularity on his part as Article 13(3) of the Arbitration Act allows an arbitrator to continue with the proceedings after notifying the challenger of the rejection of the challenge.

Counsel for the applicant submitted that the award should be set aside on the basis that it does not even deal with the challenge.

I agree with him that the arbitrator was required to deal with the challenge before proceeding with the proceedings before him, but, the issue in this case is whether or not the applicant is properly before this court.

This court can, in terms of Article 13(3) of the Arbitration Act, only decide on a challenge after its rejection by the arbitrator.

In this case, the failure by the arbitrator to reject the challenge before making the award makes the Article 13 procedure inapplicable, as this court can only be requested to intervene when the challenge has been rejected.

I am therefore satisfied that counsel for the second respondent's submission, that the applicant is not properly before this court, is correct.

The applicant is however not without a remedy.

Counsel for the second respondent correctly pointed out that in the circumstances of this case the applicant should have applied for the setting aside of the award in terms of Article 34(2)(b)(ii) of the Arbitration Act.

The applicant could ordinarily have taken the arbitrator's failure to decide on the challenge on review, but, Article 5 of the Arbitration Act [Chapter 7:15] provides that “no court shall intervene except where so provided in this Model Law.”

This means this court's intervention in terms of Article 13 of the Arbitration Act must be strictly in compliance with the provisions of that Article.

The Arbitration Act does not provide for review, and, Article 34(1) of the Arbitration Act provides that an application to set aside is the only available remedy.

Article 34(1) of the Arbitration Act [Chapter 7:15] provides as follows:

“Recourse to a court against an arbitral award may be made only by an application for setting aside in accordance with paras (2) and (3) of this article.”

This means, in the circumstances of this case, an application in terms of Article 34(1) of the Arbitration Act is the only procedure through which the applicant can seek a remedy from this court.

Article 34(2)(b)(ii) of the Arbitration Act provides for the setting aside of the award on the ground that it is contrary to the public policy of Zimbabwe. Article 34(5) defines the circumstances under which an award can be said to be contrary to the public policy of Zimbabwe. It provides as follows;

“For the avoidance of doubt, and without limiting the generality of para (2)(b)(ii) of this article, it is declared that an award is in conflict with the public policy of Zimbabwe if -

(a) The making of the award was induced or effected by fraud or corruption; or

(b) A breach of the rules of natural justice occurred in connection with the making of the award.”

The applicant's grounds for applying for the recusal of the first respondent, and the setting aside of his award, is that he heard submissions from the second respondent outside the arbitral proceedings.

That, if proved, would be contrary to the rules of natural justice and entitle the applicant to the setting aside of the award in terms of Article 34 of the Arbitration Act.

I am therefore satisfied that the applicant should, in the circumstances of this case, have applied for the setting aside of the award in terms of Article 34(2)(b)(ii) of the Arbitration Act. Its application, in terms of Article 13 of the Arbitration Act [Chapter 7:15] must therefore be dismissed.

In the result, the applicant's application is dismissed with costs.

SC39-00 : E. FILON vs THE PUBLIC SERVICE COMMISSION and THE MINISTER OF LANDS AND WATER RESOURCES
Ruled By: GUBBAY CJ, McNALLY JA and EBRAHIM JA

The appellant is a self-actor, and the courts, within limits, always give the greatest latitude to self actors.

HH443-13 : JONAS MUSHOSHO vs LLOYD MUDIMU and THE DEPUTY SHERIFF
Ruled By: CHIGUMBA J

In the never-ending quest for justice, litigants are becoming increasingly indefatigable in approaching the well of justice to quench their thirst for justice.

HHB345-16 : NQOBILE KHUMALO vs THE PRESIDING MAGISTRATE N.O. (MR MZINGAYE MOYO) and THE PROSECUTOR GENERAL N.O.
Ruled By: MATHONSI J

In the practice of law the world over, it is an accepted principle that legal practitioners are officers of the court. As such, they assist the court in dispensing justice and owe the court a duty to not only bring to its attention legal pronouncements on the law that are useful in the resolution of disputes but also to disclose to the court the truth which, in any event, is the cornerstone of the justice delivery system.

In that regard, legal practitioners, as members of the noble profession, are expected to treat the court with respect and be diligent in the discharge of their duties. They occupy a privileged position under the wings of the court as perhaps the last bastion in the defence of individual rights and liberties, and, therefore, are not expected to resort to obfuscation in their defence of accused persons brought before the courts.

As much as legal practitioners are allowed to be as tenacious as possible in defending their clients, they still have a duty towards the court.

A legal practitioner has the right to criticize the court's judgment but the right to freedom of expression does not permit the making of wild and unproven comments imputing corrupt or improper motives on judicial officers as this would create a real and substantial risk of impairing public confidence in the administration of justice: see In re Chinamasa 2000 (2) ZLR 322 (S).

In this application, the applicant seeks an order stopping criminal proceedings in the Magistrates Court of Filabusi pending a review by the High Court of refusal by the presiding magistrate, who is the first respondent in the application, to recuse himself at the behest of the applicant.

The applicant was arraigned before the first respondent on a charge of contempt of court in contravention of section 182 of the Criminal Law Code [Chapter 9:23]. The charge arose out of a court order issued by the High Court on 20 November 2015 interdicting the applicant from interfering with one Claver Masiiwa's control of certain property the latter had purchased from a company known as Trianic Investments (Pvt) Ltd.

Although the court order was served on the applicant on 3 December 2015 he allegedly violated the court order by continuing to interfere with Claver Masiiwa's control of the property and using the said property as his own.

The conduct complained of led to charges being preferred against the applicant aforesaid.

He initially appeared in court on 25 October 2016 but sought a postponement to a later date. The matter was then remanded, by consent, for trial on 10 November 2016.

When the matter was called on that date, the applicant's counsel immediately launched an application for recusal of the trial magistrate.

Without leading any sworn evidence or producing any proof, and, indeed, without taking an oath himself, the legal practitioner launched a volley of unmitigated and very serious accusations against the trial magistrate.

(i) Firstly, he claimed that, on 8 November 2016, the magistrate had been spotted at Filabusi Shopping Centre conducting a conversation with one Councillor Ngwenya in the presence of the complainant.

He did not indicate what was wrong with a magistrate conversing with a local councillor.

(ii) Secondly, he stated, that, some time before, the trial magistrate had presided over a civil case involving two parties, namely, Mhandu and Mswela, in which he found in favour of Mswela. He claimed that Mswela is a friend of the complainant in the criminal case and that he had since established that the magistrate was later “roped into the mining business that Mswela had taken from Mhandu.”

The legal practitioner did not even suggest that the decision of the magistrate in that civil matter was wrong and whether it was ever contested. He however suggested that the aspect of the magistrate going into business with a former litigant was at the instance of the complainant.

(iii) Thirdly, the legal practitioner claimed, that, upon the arrest of his client on the charge he is facing the officer in charge had disclosed to him that he was under pressure from “court officials” to take the matter to court. As a result, the docket had been processed and taken to court in one day.

It turned out that the accused person was taken to court on a summons. At no time was he detained.

The legal practitioner did not allude to any evidence to the effect that it was the trial magistrate who had put the officer-in-charge under pressure or that the magistrate had any interest in the matter.

It was for the foregoing reasons that the legal practitioner asked the magistrate to recuse himself.

Before responding to the application, the public prosecutor desired to investigate what may have been wild and unguarded, if not unsubstantiated accusations. He requested a 30 minute adjournment to enable him to do so.

When the court resumed, the legal practitioner did not even allow the prosecutor to respond.

Turning the entire proceedings into a circus, he made further accusations against both the magistrate and the public prosecutor. He claimed that while they were outside the courtroom, after the short adjournment, the complainant had rushed to his vehicle where he was overheard talking on the phone to an unknown person. He was saying to that person; “we need to increase the amount of money, may you get ready.”

The legal practitioner suggested that the complainant was preparing to increase the bribe money presumably paid to the magistrate and/or prosecutor.

He said after that phone call the complainant had rushed to the public prosecutor's office.

He was not done.

He went on to claim that he had observed the office-in-charge he had spoken about earlier, hovering around the magistrate's chambers. To him, the magistrate had summoned the officer-in-charge for a reprimand presumably for having revealed to the accused person that the magistrate had exerted pressure on him to bring the docket to court.

It is needless to say that all these allegations were refuted by both the public prosecutor and the magistrate.

The prosecutor stated, that, on the day the complainant was alleged to have met the magistrate he was nowhere near Filabusi. He was at his farm in Chegutu. He drew attention to the fact that no link had been established between the complainant and Mswela or Mhandu, pointing out that the court could not be expected to recuse itself on flimsy and baseless allegations.

The magistrate refused to recuse himself giving sound reasons.

He stated, in his ruling, that, he did not know the complainant. He pointed out that he was not engaged in any mining business, and that even if the complainant had been overhead making the statement complained of in a telephone conversation that statement was meaningless.

After that determination, the trial could not commence because the legal practitioner for the accused person stated that he had three more applications to make. He did not disclose the nature of those applications and did not make any of them.

The matter was then postponed to 23 November 2016, presumably to allow the applicant to make the three applications.

On 16 November 2016, the applicant filed a review application in this court, HC2883/16, contesting the refusal of the magistrate to recuse himself. Only one ground of review is raised in that review application, namely that;

“The respondents (the magistrate and the prosecutor general - not the public prosecutor seized with the matter in Filabusi) have shown bias against the applicant in the proceedings on CRB338/16 and therefore should recuse themselves from the trial.”

Apart from the fact that it is well-nigh impossible for the Prosecutor General to recuse himself from his Constitutional mandate of prosecuting suspects, no bias is shown throughout the three page founding affidavit of the applicant upon which the review application is based.

Instead, it regurgitates the allegations made by counsel in the Magistrates Court, from the bar, almost word for word.

A day before the trial was set to resume, the applicant then filed this urgent application for a stay of the criminal proceedings pending review.

The applicant is asking this court to intervene in uncompleted proceedings of a lower court where that court has issued an interlocutory order which he is not happy with....,.

I..., desired to know whether the applicant was entitled to seek shelter under the wings of this court if he is facing contempt of court charges for failing to obey a lawful order issued by this court....,.

I must mention, in passing, that, section 85(1) of the Constitution allows any person acting in their own interests to approach the court alleging that a fundamental right or freedom contained in Chapter 4 has been infringed. Subsection (2) of section 85 provides that an approach to the court in terms of subsection (1) of section 85 shall not be denied only on the basis that the person has contravened a law.

In my view, those Constitutional provisions do not detract from the time-honoured legal position that people are not allowed to come to court seeking assistance if they are guilty of contempt of an order of the same court.

It occurs to me, that, if a litigant who is contemptuous of an order of this court were allowed to seek the court's assistance when he has not complied with the court order then the court risks compromising its integrity and being reduced to a circus.

I conclude, therefore, that, this case is distinguishable from that contemplated by section 85(2) of the Constitution which relates to the enforcement of a fundamental human right.

It certainly is not a fundamental human right of the applicant to disobey a lawful order of this court.

If he wants protection from this court, he must bring himself fully under the authority of the court - not to pick and choose what the court should do.

HH710-16 : TENDAI MANGWIRO vs DR IGNATIUS CHOMBO
Ruled By: TSANGA J

Effectiveness of the courts is central to the rule of law and democratic governance. Section 164(1) to (3), which deals with independence of the judiciary, provides as follows:“164 Independence of judiciary(1) The courts are independent and are subject only to this Constitution and the law, which they must apply impartially, ...

HH261-16 : KARNEC INVESTMENTS (PRIVATE) LIMITED and ROBERT STRONG vs ECONET WIRELESS (PRIVATE) LIMITED
Ruled By: TSANGA J

In terms of section 3 of our Constitution, Amendment (No.20) Act 2013, one of the founding values and principles upon which Zimbabwe is founded is respect for the rule of law (see section 3(1)(b) of the Constitution in particular).If the court's authority is not respected there can be no fostering ...

SSC46-12 : CHARLES KWARAMBA vs THE HONOURABLE MR JUSTICE BHUNU N.O.
Ruled By: CHIDYAUSIKU CJ

The legal practitioners representing Mr Charles Kwaramba (hereinafter referred to as "the applicant") placed before the Registrar of this Court the following letter:"REQUEST FOR DIRECTIONSWe act on behalf of Mr Charles Kwaramba at whose instance we write. Mr Kwaramba, who is a legal practitioner and an officer of this Court, ...

The legal practitioners representing Mr Charles Kwaramba (hereinafter referred to as "the applicant") placed before the Registrar of this Court the following letter:

"REQUEST FOR DIRECTIONS

We act on behalf of Mr Charles Kwaramba at whose instance we write. Mr Kwaramba, who is a legal practitioner and an officer of this Court, was representing accused persons in the case of Tungamirai Madzokere and 28 Others, Case No. CRB55/12. He applied for bail on their behalf, and, in the judgment dismissing the bail application, the court also made adverse findings against Mr Kwaramba.

A copy of the judgment is attached.

Some time ago we received instructions from Mr Kwaramba to seek a review of the decision as he felt that there were irregularities in the manner the court arrived at the decision affecting him.

As we were preparing the application, we noticed that there is a challenge with regard to review proceedings before the Supreme Court. Section 25(3) of the Supreme Court Act seems to suggest that there is no right to approach the Supreme Court for review as a court of first instance.

However, sections 17(h) and 25(1) of the same Act both seem to confer review powers on the Supreme Court.

In light of the above, we became very averse to filing an application without first seeking the Court's directions on the matter.

We note, however, that, in terms of section 25(3) of the Act, the Supreme Court or a Judge of the Supreme Court can give directions whether a review in the nature of this one can be instituted before it in the first instance.

We attach a draft copy of the application which is intended to be filed.

We therefore request you to kindly place our request before a Judge for directions. We look forward to your urgent attention to the matter."

It would appear to me that two requests emerge from the above correspondence –

(1)...,.

(2) The legal practitioners for the applicant request that a Judge of this Court give directions in terms of section 17(h) or section 25(3) of the Supreme Court Act that a review of this matter be instituted.

Section 17(h) of the Supreme Court Act provides:

"17 Supplementary powers of Supreme Court

For the purposes of this Part, the Supreme Court may, if it thinks necessary or expedient in the interests of justice –
…,.

(h) Exercise any of the powers of review conferred upon the High Court by section 29 of the High Court Act [Chapter 7:06]:…,."

While section 25 of the Supreme Court Act provides:

"25 Review powers

(1) Subject to this section, the Supreme Court, and every judge of the Supreme Court, shall have the same power, jurisdiction and authority as are vested in the High Court, and judges of the High Court, respectively, to review the proceedings and decisions of inferior courts of justice, tribunals, and administrative authorities.

(2) The power, jurisdiction, and authority conferred by subsection (1) may be exercised whenever it comes to the notice of the Supreme Court, or a judge of the Supreme Court, that, an irregularity has occurred in any proceedings or in the making of any decision notwithstanding that such proceedings are, or such decision is, not the subject of an appeal or application to the Supreme Court.

(3) Nothing in this section shall be construed as conferring upon any person any right to institute any review, in the first instance, before the Supreme Court or a judge of the Supreme Court, and provision may be made in rules of court, and a judge of the Supreme Court may give directions, specifying that any class of review or particular review shall be instituted before or shall be referred or remitted to the High Court for determination."...,.

As regards the second request, applications for directions are made by way of Chamber Application.

It is inappropriate to do so by way of a letter addressed to the Registrar of this Court for placement before a Judge of this Court.

I will, however, overlook that inadvertence and deal with this request for directions as if it has been made by way of a Chamber application, hence this judgment....,.

The background facts to this request are as set out by the applicant in his proposed Court Application for Review. The proposed Court Application for Review is attached to the letter to the Registrar.

The following are the facts:

The applicant is a legal practitioner practising law in Harare in partnership with others under the name and style of Zimbabwe Lawyers for Human Rights. He was one of the legal practitioners representing accused persons who are accused of murdering a police officer in June 2011. He is one of a team of about four legal practitioners representing about twenty-nine accused persons.

The trial of the accused persons commenced on 4 June 2012 in the High Court.

The applicant, on behalf of the accused persons, made a bail application, which the State opposed. The court, presided over by MR JUSTICE BHUNU, reserved its judgment. The trial continued while awaiting judgment on the bail application.

The incident that gave rise to this application for directions then occurred.

It would appear, that, while awaiting judgment on the bail application, there was an article in the Daily News newspaper stating the following:

"Human rights lawyer, Charles Kwaramba, who is representing the 29 MDC activists, said the law is not being applied fairly. It just goes on to show that there is no equal application of the law. This is a classical example. Here we have police officers who are supposed to protect the people being accused of murdering a civilian for a dollar. On the other hand, we have 29 civilians who have been in prison for over a year now, being accused of killing a cop. So far there is no evidence that points at them, but the speed of arrests shows that the police wanted to arrest them because they are MDC. There were no investigations when the 29 were arrested. One wonders how the Shamva cops (got) $50 bail each in a murder case while the 29 activists are failing to get the same even when there is no evidence. Kwaramba said the moment that a person is labelled MDC justice is politicised."

The newspaper article, by use of quotation marks, purports to quote the applicant as the origin of the above remarks.

The applicant admits that he was asked to comment on the manner in which the wheels of justice were turning in the matter. He also admits that he expressed disappointment at the lengthy stay of his clients in remand prison. He contends that any other lawyer would have felt the same.

The applicant's stance, on the Daily News article, is contained in paragraphs 4.6 to 4.12 of the founding affidavit of his proposed Court application. He states the following:

"4.6 I then made the bail application which the State opposed. The court reserved its judgment. The trial went on while awaiting judgment on the bail (application). The incident which gave rise to these allegations then occurred.

4.7 It is true that there was an article in the Daily Newspaper stating what the Honourable Judge repeated at page 3 of his (cyclostyled) judgment.

4.8 It is also true that the article quoted lawyers including Dewa Mavhinga and myself.

4.9 It is true that I was asked to comment (on) the manner that the wheels of justice were turning in the matter. It is true that I expressed disappointment at the lengthy stay of my clients in remand prison. I do not think any lawyer could have felt otherwise.

4.10 It is true that I was invited to make a comparison of our case with the Shamva case. I declined the invitation indicating that I did not know much about that case but commented that if the cases were similar then like-accused must be treated alike as this is the position of the law. In fact, I got much of the details of the Shamva case from the interviewing journalist. I did not know about it. I did not even know much about the circumstances of the murder.

4.11 So, while the article contained some correct information, it also contained inaccuracies. Statements such as 'THE LAW IS NOT BEING APPLIED FAIRLY' (and) 'THERE IS NO EQUAL APPLICATION OF THE LAW'' were wrongly attributed to me. I deny using these words.

4.12 Although the article was, to some extent, true, it contained several inaccuracies, which inaccuracies probably created the wrong impression in (the) minds of readers including the Honourable Judge."

The learned Judge, disturbed by the above article, summoned all the legal practitioners in the matter to his Chambers on the Monday following publication of the article.

In his Chambers, he expressed his concern over the contents of the article and asked the legal practitioners to comment on the issue.

The applicant indicated to the learned Judge that the article was inaccurate and that there was no intention whatsoever on his part to attack the court or make adverse comments. He tendered his apology to the respondent if the wrong impression had been created. He advised the respondent that newspapers were notorious for writing stories with a twist that sold papers. In short, the applicant alleged that the newspaper had misquoted him or misrepresented him.

He assumed that the matter had been resolved.

However, on 19 June 2012, the court delivered its judgment in the bail application. In the course of that judgment, the learned Judge castigated the applicant for his communication with the newspapers. The learned Judge has this to say at pp 2-4 of the cyclostyled judgment:

"There has been, however, an unfortunate development in this trial in that one of the defence team of lawyers, Mr Kwaramba, instead of adducing the required evidence according to law, has now decided to play to the gallery and the press in a bid to secure the release of his clients without complying with the law by demonising and attacking the dignity and integrity of this Court and the Judiciary of this country in general.

He is quoted in an article in the Daily News on Sunday of June 10 (2012) at p4 as follows:

'Human rights lawyer, Charles Kwaramba, who is representing the 29 MDC activists, said the law is not being applied fairly. It just goes on to show that there is no equal application of the law. This is a classical example. Here, we have police officers who are supposed to protect the people being accused of murdering a civilian for a dollar. On the other hand, we have 29 civilians who have been in prison for over a year now, being accused of killing a cop. So far, there is no evidence that points at them, but, the speed of arrests shows that the police wanted to arrest them because they are MDC. There were no investigations when the 29 were arrested. One wonders how the Shamva cops (got) $50 bail each in a murder case while the 29 activists are failing to get the same even when there is no evidence. Kwaramba said the moment that a person is labelled MDC justice is politicised.'

With respect, Mr Kwaramba's remarks cannot reasonably be true.

They are being made at a time when the very same police he is attacking have arrested ZANU PF activists in Mudzi for allegedly murdering an MDC member in politically motivated violence. They have since been denied bail by this very Court: see David Chimukoko and Others v The State HH254-12.

It is a well documented truth, and our Court records and law reports are replete with MDC members charged with treason or murder, including its leader, who owe their lives to this very Court that Mr Kwaramba has the audacity to publicly demonise and denounce as an enemy of the MDC.

This is not to mention countless others charged with various offences, including fraud and insulting the President, who also owe their freedom to the very Judiciary that Mr Kwaramba seeks to demonise and portray as being partisan and biased against the MDC. See:

1. State v Sonny Nicholas Masera HH50-04;

2. S v Tsvangirai & Ors 2003 (2) ZLR 88;

3. S v Tsvangirai 2004 (2) ZLR 210;

4. The State v Roy Leslie Bennett HH79-10;

5. The Attorney-General v Roy Leslie Bennett SC07-11;

6. The State v Elton Mangoma HH136-11.

Just to mention but a few.

This Court's mission is to dispense world class justice to all manner of people without fear or favour.

Right now, as I speak, the MDC President is busy defending, in the Supreme Court, this Court's landmark judgment issued in his favour against his arch rival, the President of ZANU PF and Zimbabwe.

That puts to shame Mr Kwaramba's ill-conceived, malicious remarks in the press bent on bringing the due administration of justice into disrepute.

Mr Kwaramba deliberately misrepresented the facts and the law to mislead gullible members of the public, and the press, when he launched that caustic, inflammatory, but baseless attack on the Bench and the Judiciary in general.

The simple answer to his insincere, rhetoric question is that Parliament has decreed that where a person is alleged to have killed a law enforcement officer, and in this case a policeman, the Court is prohibited from granting the accused bail until such time he or she has adduced evidence, to the Court's satisfaction, establishing the existence of special circumstances justifying his (or her) release.

The same considerations do not apply to a person or police officer who is alleged to have killed any person other than in circumstances falling under section 117(6) of the Act."

The learned Judge further stated in his judgment, at pp 4-5:

"In his demonisation of the Judiciary, Mr Kwaramba was well aware that the Shamva case was different from this case.

This explains why, in all his lengthy addresses and submissions in open court, he never mentioned the Shamva case or sought to draw any similarities between the two or any other case because he knew that they were different and that different legal considerations applied.

In judgment number HH182-12, I took the trouble to draw his attention to section 117(6) and to explain its legal implications to his apparent satisfaction such that he abandoned his ill conceived bid to appeal against my order inviting him to comply with the legal requirements prescribed by law.

Having failed to take refuge in the Supreme Court, he now seeks solace in the media and gullible members of the public together with some obscure self-styled, shallow minded, if not bogus lawyers whom I have never encountered at the courts in my 31 years in the Judiciary.

For him to then turn around, attack, and denigrate this Court on the basis of a case reference and arguments he never advanced in open court so that they could be subjected to legal scrutiny smacks of dishonest, slanderous, contemptuous, and unethical conduct on his part."

The learned Judge, after an analysis of the facts, and applying the law to the facts, dismissed the bail application.

The applicant objects to the learned Judge's remarks on four grounds, set out in the proposed court application for review, namely -

"1. There are/were gross irregularities in the proceedings or decision.

1.1 The applicant was not given an opportunity to be heard.

1.2. The findings against the applicant were made in a case in which he was not a party.

1.3 The applicant's rights to the protection of the law and to legal representation were violated.

1.4 The respondent's findings were not borne out by the facts before him."

It is on the basis of these facts that I am now requested to give directions, in terms of section 25(3) of the Supreme Court Act that a review be instituted or the matter be referred or remitted to the High Court for determination.

Before a Judge of the Supreme Court issues directions in terms of section 25(3) of the Supreme Court Act, he or she has to be satisfied of the existence of an irregularity that needs determination or correction which has occurred.

Generally speaking, an irregularity occurs when a judicial officer takes into account factors that he should not take into account or fails to take into account factors he should take into account in the process of the making of a determination the judicial officer is seized with.

An irregularity also occurs where the law is misapplied or an incorrect procedure is followed.

The court a quo was seized with a bail application. The learned Judge had to determine whether or not bail should be granted.

There is no allegation, that, in making the determination to grant or refuse bail the learned Judge took into account wrong factors or failed to take into account factors which he should have taken into account.

No misdirection in the determination of the bail application is alleged. Put differently, no irregularity is alleged in the determination of the bail application.

The remarks complained of by the applicant were obiter and were not part of the ratio decidendi of the determination of the bail application....,.

Essentially, the applicant's complaint is that the learned Judge should not have severely reprimanded him for his conduct or misconduct.

The applicant does not seem to appreciate what is expected of him as a legal practitioner and an officer of the court.

On the applicant's own account, the Daily News ascribed to him the remarks it published in its newspaper. The remarks ascribed to him do not only scandalise the learned Judge but were also made while the matter was subjudice.

There is a time honoured practice which has crystallised into law that prohibits the making of inappropriate statements on matters pending before the courts.

I have no doubt in my mind that the statements ascribed to the applicant grossly transgressed the sub judice rule and clearly constitute contempt of court, in that they scandalize the court by ascribing to it political motivation in its judgment.

The inescapable inference is that the remarks were made not only to bring the court into contempt in the eyes of the public, but also in an attempt to influence the outcome of the bail application, and, consequently, the course of justice.

The applicant should consider himself lucky that he was not prosecuted for contempt of court.

Legal practitioners who show such blatant disrespect and contempt for the courts have no business appearing before the courts.

In my view, serious consideration should be given to the introduction of more stringent measures to protect the dignity of the courts from being impaired by reckless utterances.

Upon the publication of the article in the Daily News, I would have expected the applicant to immediately issue a statement dis-associating himself from the contents of the article and denying that he ever uttered the words ascribed to him by the Daily News newspaper.

That is what one would expect of a person falsely accused of saying things he never said.

I also would have expected the applicant to have urgently sought audience with the learned Judge to assure him that he never said the words ascribed to him.

Instead, he only offered a wishy washy explanation upon being asked about the matter by the learned Judge. He made no effort to correct the impression conveyed to the public, that the court is partial, and that the applicant was the source of the allegation.

The applicant is the author of his own misfortune. He should be more circumspect in the way he conducts himself.

I accordingly decline to give the directions requested.

SSC75-21 : ISRAEL TANGWENA and TONDERAI MUOCHA vs THE PROSECUTOR GENERAL
Ruled By: GWAUNZA DCJ, PATEL JA and BHUNU JA

This appeal from the High Court has its genesis in the Magistrates Court which acquitted both appellants on one charge of fraud as defined in section 136 of the Criminal Law (Codification and Reform) Act [Chapter 9:23] and, secondly, operating an unregistered trust in contravention of section 9 of the ...

Appealed
SC110-21 : UPSET INVESTMENTS (PRIVATE) LIMITED vs CHITUNGWIZA MUNICIPALITY
Ruled By: GARWE JA, HLATSHWAYO JA and BHUNU JA

Everyone is presumed to know the law regardless of whether one has read and understood the law.

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Constitutional Rights re: Access to Courts, Legal Literacy, Judicial Independence, Impartiality, Dignity and Authority

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Appealed
SC110-21 : UPSET INVESTMENTS (PRIVATE) LIMITED vs CHITUNGWIZA MUNICIPALITY
Ruled By: GARWE JA, HLATSHWAYO JA and BHUNU JA

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Law Portal Zimbabwe

Constitutional Rights re: Access to Courts, Legal Literacy, Judicial Independence, Impartiality, Dignity and Authority

HH78-02 : CONSTANCE PANGETI vs THE GRAIN MARKETING BOARD Ruled By: MAKARAU J

HH84-10 : ALBERT MATAPO and OTHERS vs MAGISTRATE BHILA and THE ATTORNEY GENERAL Ruled By: UCHENA J

HH172-17 : TENDAI MANGWIRO vs MINISTER OF JUSTICE & LEGAL AFFAIRS (N.O.) and MINISTER OF HOME AFFAIRS (N.O) and ATTORNEY-GENERAL OF ZIMBABWE (N.O.) Ruled By: MUSHORE J

HMA12-18 : CONSTABLE CHIHWAI vs BOARD PRESIDENT N.O., CHIEF SUPERINTENDENT NYATHI M and COMMISSIONER GENERAL OF POLICE Ruled By: MAFUSIRE J

HH281-16 : JOHANNES TOMANA vs JUDICIAL SERVICE COMMISSION and THE MINISTER OF JUSTICE, LEGAL AND PARLIAMENTARY AFFAIRS Ruled By: MAKONI J

HH366-16 : JOHANNES TOMANA vs JUDICIAL SERVICE COMMISSION and THE MINISTER OF JUSTICE LEGAL AND PARLIAMENTARY AFFAIRS Ruled By: MAKONI J

CC21-19 : NELSON CHAMISA vs EMMERSON DAMBUDZO MNANGAGWA and OTHERS Ruled By: MALABA CJ, GWAUNZA DCJ, GARWE JCC, MAKARAU JCC, HLATSHWAYO JCC, PATEL JCC, BHUNU JCC, UCHENA JCC and MAKONI JCC

SC37-17 : TM SUPERMARKETS (PVT) LTD vs AVONDALE HOLDINGS (PVT) LTD and SHERIFF OF ZIMBABWE Ruled By: CHIDYAUSIKU CJ

HMA36-18 : AMALGAMATED RURAL TEACHERS UNION OF ZIMBABWE vs OBERT MASARAURE and ZIMBABWE AFRICAN NATIONAL UNION [PATRIOTIC FRONT] and MINISTER OF PRIMARY AND SECONDARY EDUCATION Ruled By: MAFUSIRE J

HHH138-09 : THE STATE vs ROY LESLIE BENNNET Ruled By: BHUNU J and ASSESSORS: MUSENGEZI and CHIVANDA

HHMA55-18 : STATE vs PHILLIP GUVHU Ruled By: MAFUSIRE J and MAWADZE J

HH197-15 : ROBSON MAKONI vs THE COLD CHAIN (PRIVATE) LIMITED t/a SEA HARVEST Ruled By: CHIGUMBA J

HH572-14 : GLADYS MACHAWIRA vs PG INDUSTRIES (PRIVATE) LIMITED Ruled By: MAFUSIRE J

HHB129-09 : RAPHAEL TSHABANGU and NICHOLAS TSHABANGU and DUMEZWENI TSHABANGU vs THE STATE Ruled By: NDOU J

SSC36-20 : TONIC MANGOMA vs THE STATE Ruled By: MAKARAU JA, MAKONI JA and MATHONSI JA

HB56-15 : GLADYS KARENGWA vs ALBERT MPOFU Ruled By: MAKONESE J

HH87-12 : MARVELLOUS TARUONA vs MISHECK ZVAREVADZA and OTHERS Ruled By: KUDYA J

View Appeal HH145-17 : GERTRUDE MUTASA and DIDYMUS MUTASA vs NYAKUTOMBWA & MUGABE LEGAL COUNSEL and SHERIFF OF THE HIGH COURT Ruled By: TSANGA J

HH283-17 : IGNATIUS MASAMBA vs THE SECRETARY – JUDICIAL SERVICE COMMISSION and MERCY GORONGOZA Ruled By: CHITAPI J

HH283-17 : IGNATIUS MASAMBA vs THE SECRETARY – JUDICIAL SERVICE COMMISSION and MERCY GORONGOZA Ruled By: CHITAPI J

HH390-18 : MIDLANDS STATE UNIVERSITY vs ALOIS MATONGO Ruled By: MUZOFA J

CC02-20 : JOSEPH CHANI vs JUSTICE HLEKANI MWAYERA and MICHAEL MUGABE and MUSUTAMI CHIFAMUNA and NATIONAL PROSECUTING AUTHORITY Ruled By: MALABA CJ

CC16-19 : PERFECT NYATHI vs THE STATE Ruled By: MALABA CJ, GARWE JCC, MAKARAU JCC, GOWORA JCC, HLATSHWAYO JCC, PATEL JCC, GUVAVA JCC, MAVANGIRA JCC and BERE JCC

CC08-20 : FEATHERS MUKONDO vs THE STATE Ruled By: MALABA CJ

HB189-18 : CLAUDIUS MANAMELA and BRIGHTON NANGA and SIBONGILE MANAMELA vs ROSEWELL ZULU and APOSTOLIC FAITH MISSION OF AFRICA INTL and CLEMENT NYATHI and APOSTOLIC FAITH MISSION OF AFRICA Ruled By: MABHIKWA J

HH59-09 : TRUST CORPORATION SECURITIES (PRIVATE) LIMITED vs L.M. GABILO and DEVORGILLE KATSANZA Ruled By: UCHENA J

SC39-00 : E. FILON vs THE PUBLIC SERVICE COMMISSION and THE MINISTER OF LANDS AND WATER RESOURCES Ruled By: GUBBAY CJ, McNALLY JA and EBRAHIM JA

HH443-13 : JONAS MUSHOSHO vs LLOYD MUDIMU and THE DEPUTY SHERIFF Ruled By: CHIGUMBA J

HHB345-16 : NQOBILE KHUMALO vs THE PRESIDING MAGISTRATE N.O. (MR MZINGAYE MOYO) and THE PROSECUTOR GENERAL N.O. Ruled By: MATHONSI J

HH710-16 : TENDAI MANGWIRO vs DR IGNATIUS CHOMBO Ruled By: TSANGA J

HH261-16 : KARNEC INVESTMENTS (PRIVATE) LIMITED and ROBERT STRONG vs ECONET WIRELESS (PRIVATE) LIMITED Ruled By: TSANGA J

SSC46-12 : CHARLES KWARAMBA vs THE HONOURABLE MR JUSTICE BHUNU N.O. Ruled By: CHIDYAUSIKU CJ

SSC75-21 : ISRAEL TANGWENA and TONDERAI MUOCHA vs THE PROSECUTOR GENERAL Ruled By: GWAUNZA DCJ, PATEL JA and BHUNU JA

Appealed SC110-21 : UPSET INVESTMENTS (PRIVATE) LIMITED vs CHITUNGWIZA MUNICIPALITY Ruled By: GARWE JA, HLATSHWAYO JA and BHUNU JA

Categories

Law Portal
Zimbabwe

HH78-02 : CONSTANCE PANGETI vs THE GRAIN MARKETING BOARD
Ruled By: MAKARAU J

HH84-10 : ALBERT MATAPO and OTHERS vs MAGISTRATE BHILA and THE ATTORNEY GENERAL
Ruled By: UCHENA J

HH172-17 : TENDAI MANGWIRO vs MINISTER OF JUSTICE & LEGAL AFFAIRS (N.O.) and MINISTER OF HOME AFFAIRS (N.O) and ATTORNEY-GENERAL OF ZIMBABWE (N.O.)
Ruled By: MUSHORE J

HMA12-18 : CONSTABLE CHIHWAI vs BOARD PRESIDENT N.O., CHIEF SUPERINTENDENT NYATHI M and COMMISSIONER GENERAL OF POLICE
Ruled By: MAFUSIRE J

HH281-16 : JOHANNES TOMANA vs JUDICIAL SERVICE COMMISSION and THE MINISTER OF JUSTICE, LEGAL AND PARLIAMENTARY AFFAIRS
Ruled By: MAKONI J

HH366-16 : JOHANNES TOMANA vs JUDICIAL SERVICE COMMISSION and THE MINISTER OF JUSTICE LEGAL AND PARLIAMENTARY AFFAIRS
Ruled By: MAKONI J

CC21-19 : NELSON CHAMISA vs EMMERSON DAMBUDZO MNANGAGWA and OTHERS
Ruled By: MALABA CJ, GWAUNZA DCJ, GARWE JCC, MAKARAU JCC, HLATSHWAYO JCC, PATEL JCC, BHUNU JCC, UCHENA JCC and MAKONI JCC

SC37-17 : TM SUPERMARKETS (PVT) LTD vs AVONDALE HOLDINGS (PVT) LTD and SHERIFF OF ZIMBABWE
Ruled By: CHIDYAUSIKU CJ

HMA36-18 : AMALGAMATED RURAL TEACHERS UNION OF ZIMBABWE vs OBERT MASARAURE and ZIMBABWE AFRICAN NATIONAL UNION [PATRIOTIC FRONT] and MINISTER OF PRIMARY AND SECONDARY EDUCATION
Ruled By: MAFUSIRE J

HHH138-09 : THE STATE vs ROY LESLIE BENNNET
Ruled By: BHUNU J and ASSESSORS: MUSENGEZI and CHIVANDA

HHMA55-18 : STATE vs PHILLIP GUVHU
Ruled By: MAFUSIRE J and MAWADZE J

HH197-15 : ROBSON MAKONI vs THE COLD CHAIN (PRIVATE) LIMITED t/a SEA HARVEST
Ruled By: CHIGUMBA J

HH572-14 : GLADYS MACHAWIRA vs PG INDUSTRIES (PRIVATE) LIMITED
Ruled By: MAFUSIRE J

HHB129-09 : RAPHAEL TSHABANGU and NICHOLAS TSHABANGU and DUMEZWENI TSHABANGU vs THE STATE
Ruled By: NDOU J

SSC36-20 : TONIC MANGOMA vs THE STATE
Ruled By: MAKARAU JA, MAKONI JA and MATHONSI JA

HB56-15 : GLADYS KARENGWA vs ALBERT MPOFU
Ruled By: MAKONESE J

HH87-12 : MARVELLOUS TARUONA vs MISHECK ZVAREVADZA and OTHERS
Ruled By: KUDYA J

View Appeal
HH145-17 : GERTRUDE MUTASA and DIDYMUS MUTASA vs NYAKUTOMBWA & MUGABE LEGAL COUNSEL and SHERIFF OF THE HIGH COURT
Ruled By: TSANGA J

HH283-17 : IGNATIUS MASAMBA vs THE SECRETARY – JUDICIAL SERVICE COMMISSION and MERCY GORONGOZA
Ruled By: CHITAPI J

HH283-17 : IGNATIUS MASAMBA vs THE SECRETARY – JUDICIAL SERVICE COMMISSION and MERCY GORONGOZA
Ruled By: CHITAPI J

HH390-18 : MIDLANDS STATE UNIVERSITY vs ALOIS MATONGO
Ruled By: MUZOFA J

CC02-20 : JOSEPH CHANI vs JUSTICE HLEKANI MWAYERA and MICHAEL MUGABE and MUSUTAMI CHIFAMUNA and NATIONAL PROSECUTING AUTHORITY
Ruled By: MALABA CJ

CC16-19 : PERFECT NYATHI vs THE STATE
Ruled By: MALABA CJ, GARWE JCC, MAKARAU JCC, GOWORA JCC, HLATSHWAYO JCC, PATEL JCC, GUVAVA JCC, MAVANGIRA JCC and BERE JCC

CC08-20 : FEATHERS MUKONDO vs THE STATE
Ruled By: MALABA CJ

HB189-18 : CLAUDIUS MANAMELA and BRIGHTON NANGA and SIBONGILE MANAMELA vs ROSEWELL ZULU and APOSTOLIC FAITH MISSION OF AFRICA INTL and CLEMENT NYATHI and APOSTOLIC FAITH MISSION OF AFRICA
Ruled By: MABHIKWA J

HH59-09 : TRUST CORPORATION SECURITIES (PRIVATE) LIMITED vs L.M. GABILO and DEVORGILLE KATSANZA
Ruled By: UCHENA J

SC39-00 : E. FILON vs THE PUBLIC SERVICE COMMISSION and THE MINISTER OF LANDS AND WATER RESOURCES
Ruled By: GUBBAY CJ, McNALLY JA and EBRAHIM JA

HH443-13 : JONAS MUSHOSHO vs LLOYD MUDIMU and THE DEPUTY SHERIFF
Ruled By: CHIGUMBA J

HHB345-16 : NQOBILE KHUMALO vs THE PRESIDING MAGISTRATE N.O. (MR MZINGAYE MOYO) and THE PROSECUTOR GENERAL N.O.
Ruled By: MATHONSI J

HH710-16 : TENDAI MANGWIRO vs DR IGNATIUS CHOMBO
Ruled By: TSANGA J

HH261-16 : KARNEC INVESTMENTS (PRIVATE) LIMITED and ROBERT STRONG vs ECONET WIRELESS (PRIVATE) LIMITED
Ruled By: TSANGA J

SSC46-12 : CHARLES KWARAMBA vs THE HONOURABLE MR JUSTICE BHUNU N.O.
Ruled By: CHIDYAUSIKU CJ

SSC75-21 : ISRAEL TANGWENA and TONDERAI MUOCHA vs THE PROSECUTOR GENERAL
Ruled By: GWAUNZA DCJ, PATEL JA and BHUNU JA

Appealed
SC110-21 : UPSET INVESTMENTS (PRIVATE) LIMITED vs CHITUNGWIZA MUNICIPALITY
Ruled By: GARWE JA, HLATSHWAYO JA and BHUNU JA