Prescription re: Administrative or Quasi Judicial Proceedings and Judicial Procedural Rights and Obligations

HH18-12 : PIONEER TRANSPORT (PVT) LTD vs DELTA CORPORATION LTD and DAVID LESLIE CRUTTEDEN
Ruled By: GOWORA J

On 1 January 2003, the applicant and the first respondent executed an agreement for the “supply of primary beverage transport services.”

In terms of clause 8 of the agreement, the first respondent, Delta, appointed the services of the applicant, Pioneer, to distribute and deliver products on its behalf to various destinations.

In order to perform its obligations under the agreement, Pioneer undertook to supply vehicles to Delta for use in the distribution aforesaid. To that end, Pioneer had to make available to Delta twelve mechanical horses which would be used to draw thirty-four trailers, these being supplied by Delta.

The agreement also provided for the supply of additional horses, by Pioneer, on an ad hoc basis as the exigencies of the situation would have demanded.

As sometimes happens, the parties had a falling out.

The agreement, in terms of clause 18 thereof, provided for the settlement of disputes through an arbitration process.

In due course, the second respondent was appointed as arbitrator to the dispute and the matter referred to him. The parties were called before him, and, on 16 January 2010, he issued an award.

The applicant has, through these proceedings, brought an application to have the award set aside by this court in terms of Chapter VII, Article 34 of the First Schedule to the Arbitration Act [Chapter 7:15]. The applicant also seeks costs against the first respondent.

The founding affidavit has been deposed to by a John Groves. He states that he is employed as a Managing Director by the applicant and that he is authorised to depose to the affidavit.

He states therein that the application was being brought to court in accordance with the provisions of section 2 of Article 34 of the First Schedule to the Arbitration Act [Chapter 7:15].

The dispute is centred around the effect to be given to clause 9(f) of the agreement, in terms of which, upon termination of the agreement, Pioneer was supposed to return the trailers to Delta, and such return to be in “good working condition” and order fair wear and tear excepted.

The deponent states that, on 26 September, Delta commenced arbitration proceedings in terms of a Statement of Claim filed of record. Pioneer opposed the claim and the matter was set down for hearing before the arbitrator. Both parties adduced viva voce evidence.

According to the deponent to the affidavit the crystal issue before the arbitrator was the duration of the agreement.

The arbitrator found that the claim by Delta had not prescribed at the time that it submitted the dispute to arbitration. The deponent contends, therefore, that the arbitrator acted outside the enabling provisions of the agreement.

He contends, further, that the finding by the arbitrator that the agreement between the parties terminated on 30 November 2005 was not rationally linked to either the evidence adduced by the parties or submissions made by the same on the papers or during the hearing. He contends, further, that, in finding as he did, that the agreement terminated on 30 November instead of 31 December, as provided for in clause 2 of their agreement, the arbitrator had created a new contract for them.

In addition to the above, the applicant contended that the mandate of the arbitrator was limited to the duration of the agreement, and that consequently he was supposed to ascertain the obligations of the parties as at the date of termination of the agreement.

However, contends the applicant, the arbitrator seemed to have extended the applicant's obligations under the contract beyond the lifespan of the agreement.

It is further contended that the applicant's liabilities ought to have been ascertained as at the date.

According to the applicant, the award is not limited to the termination date, as found by the arbitrator, that is 30 November 2005, but goes beyond that. Therefore, the applicant contends, even on his own version, the arbitrator has acted outside the provisions of the contract. This, he suggests, is contrary to the Zimbabwean substantive law on the privity of contracts and therefore contrary to public policy.

The deponent also avers, that, by awarding specific performance in favour of a party who had, in terms of the contract, bilateral obligations which it had itself not performed, and was not in a position to perform, the arbitrator had unjustly enriched one of the parties at the expense of the other contrary to the positive law in Zimbabwe regarding bilateral obligations and further that this was contrary to public policy.

In the event, the applicant prayed for the setting aside of the arbitral award.

The first respondent has opposed the application. It has raised a number of points in limine.

(i) Firstly, the first respondent contends that the applicant has approached the court with dirty hands and ought not to be accorded a hearing by this court until such time as it would have purged its default.

The first respondent contends that the filing of an application for review has not suspended the operation of the award by the arbitrator but that the applicant has not complied with the award.

A letter was addressed to the applicant's legal practitioners, by the respondent's legal practitioners, putting them on terms to abide by the arbitration award by a specified date. To date, there has been no compliance and the respondent is of the view that the applicant has approached the court with dirty hands and should not, as a consequence, be heard by the court.

Effectively, therefore, this court must find that the applicant has dirty hands and should, as a consequence, refuse to hear the applicant until such time as it would have complied with the award.

The first respondent argued that the decision of the Supreme Court in Associated Newspapers of Zimbabwe (Pvt) Ltd v The Minister of State for Information and Publicity & Ors 2004 (1) ZLR 538 is apposite herein. This is what CHIDYAUSIKU CJ had to say:

“…,. That case does not seek to define the extent of that principle. It certainly is not an authority for the proposition that denial of relief will be confined only to those litigants whose conduct lacks probity or honesty or is tainted with moral obliquity.

In S v Nial 1982 (1) ZLR 142 (H) and S v Nkosi 1963 (4) SA 87 (T) the court refused to hear appeals of the appellants who had absconded or failed to comply with bail conditions.

Defiance of a court order does not involve dishonesty or moral obliquity, yet litigants in defiance of court orders, more often than not, are denied relief by the court until they have purged their contempt. In my view, there is no difference, in principle, between a litigant who is in defiance of a court order and a litigant who is in defiance of the law. The court will not grant relief to a litigant with dirty hands in the absence of good cause being shown or until such defiance or contempt has been purged.”

The applicant, on the other hand, denies that it has dirty hands as contended by the first respondent, and suggests that the contention by the first respondent that it, the applicant, should have first complied with the award before instituting these proceedings is ill-conceived.

It disputes the application of the dirty hands principle to this dispute and to the refusal by itself to first comply with the award before applying for the award to be set aside. It contends that to deny the applicant audience and opportunity to be heard would defeat the very basis of Article 34 of the Model Law upon which the applicant seeks recourse.

It contends, further, that if the applicant were requested by the court to comply with the arbitral award first and then seek an order for its setting aside, any court order granted to it thereafter would be of academic interest especially in circumstances such as this where the first respondent had sought and obtained an award for specific performance.

The application has been brought under Article 34 of the Model Law which has been incorporated in our Arbitration Act.

I am in agreement with the contention by the applicant that the right of an aggrieved party under Article 34 is not qualified except for the provision that a party is not entitled to bring an application thereunder after the lapse of three months after the award has been made.

HH55-09 : EBI ZIMBABWE (PVT) LTD vs OLD MUTUAL UNIT TRUSTS (PVT) LTD and ADVOCATE J.C.J. LEWIS
Ruled By: PATEL J

In May 2004, the applicant and the first respondent entered into a software licensing agreement. Following a dispute that arose between the parties in January 2006, the matter was referred to an arbitrator (the second respondent) for arbitration.

On the 23rd of June 2008, the applicant challenged the impartiality of the arbitrator in terms of Article 13(2) of the First Schedule to the Arbitration Act [Chapter 7:15] (the Model Law).

On the 28th of June 2008, the arbitrator rejected this challenge and his decision was communicated to the applicant on the 3rd of July 2008.

The challenge was then referred to this Court for determination on the 1st of August 2008 in terms of Article 13(3) of the Model Law.

The Issues

The issues for determination in this matter are as follows:

(1)...,.

(2) Was the challenge before the arbitrator prescribed in terms of Article 13(2)?...,.

Prescription of Challenge before the Arbitrator

The applicant in casu challenged the arbitrator on the 23rd of June 2008. In this respect, counsel for the first respondent submits, that, the applicant was precluded from challenging any conduct of the arbitrator that occurred at any stage before the 15 days preceding the date of challenge. He contends that Article 13(2) does not contemplate continuing conduct, and, that, unless the challenge is raised within 15 days of the specific act complained of it must be treated as having prescribed and become technically otiose.

As against this, counsel for the applicant submits, that, the conduct giving rise to the challenge in the present case began on the 30th of May 2008 and continued until the 9th of June 2008. This continuing conduct displayed the arbitrator's partiality and the challenge thereto was filed timeously on the 23rd of June 2008, within the stipulated 15 day period.

I fully concur with the stance taken by counsel for the applicant.

In terms of Article 13(2) as read with Article 12(2) of the Model Law, First Schedule to the Arbitration Act [Chapter 7:15], the challenging party must raise his challenge within 15 days after becoming aware of any circumstance that gives rise to justifiable doubts as to the arbitrator's impartiality or independence.

In my view, the partiality of an arbitrator may not always manifest itself immediately as a single act committed on one specific occasion. More often than not, it will be evinced by a series of acts at different times or continuing conduct, which, when pieced together, demonstrates his lack of impartiality.

In this context, the aggrieved party may only be in a position to form justifiable doubts as to the arbitrator's impartiality towards the end of such continuing conduct rather than at its inception.

The specific acts complained of in casu fall precisely into to the category of continuing conduct that I have described above. I accordingly take the view, that, the challenge before the arbitrator in this case was timeously lodged and has not prescribed as contended by counsel for the first respondent.

HH18-12 : PIONEER TRANSPORT (PVT) LTD vs DELTA CORPORATION LTD and DAVID LESLIE CRUTTEDEN
Ruled By: GOWORA J

The applicant has attacked the award on three prongs;

(i) Firstly, that the arbitrator acted outside the provisions of the enabling agreement;

(ii) That the claim was prescribed; and

(iii) That the order for specific performance was contrary to the public policy of Zimbabwe regarding bilateral and reciprocal obligations and the principle of unjust enrichment.

According to the applicant, the award should therefore be set aside on the following grounds:

1. That the arbitrator acted outside the provisions of the enabling agreement;

2. That the claim was prescribed in terms of section 14 of the Prescription Act; and

3. That the order for specific performance, in the circumstances of this case, was contrary to the public policy of Zimbabwe regarding bi-lateral reciprocal obligations and the principles of unjust enrichment.

In relation to the first issue, the applicant contended that the arbitrator had acted outside the provisions of the enabling agreement.

It is contended that the first respondent had an onus to establish the duration of the agreement between the parties. Contrary to the provisions of the contract, so the applicant contends, the arbitrator placed the onus on the applicant to disprove the contentions of the claimant.

The applicant contends that, before the arbitrator, it put up the case that the agreement commenced on 1 January 2003 and terminated on 31 December 2004 and that the respondent, had, contrary to that assertion, contended that the agreement had not terminated up to the time that it instituted proceedings.

The applicant contends that the arbitrator disagreed with the versions that both parties placed before the arbitrator, and that, in approaching the matter as he did, he created a new contract between the parties based on what he termed practical considerations.

The applicant contends, in this regard, that the arbitrator unilaterally extended the duration of the contract where he held the date of termination as 30 November 2005.

The applicant contends, therefore, that the award is liable to be set aside on the grounds that it is in conflict with the public policy of Zimbabwe.

The applicant suggests that there was ambiguity in the contract and that in fact the arbitrator did confirm that the contract was ambiguous and that therefore he should have invoked the contra proferentum rule in favour of the applicant and this error on his part constituted a gross error on his part which further rendered the award unenforceable.

He suggests that the arbitrator must have found that clause 8(d) was ambiguous and contrary to the clear provisions of clauses 1 and 2 of the agreement which stated the commencement and termination dates. He suggests that the contract was prepared by Delta, and, as it was ambiguous in relation to clause 8(d), the arbitrator should have been guided by the contra proferentem rule and find that the contract had terminated as provided for in clause 2.

He stated that the arbitrator failed to apply the clear and positive principles of Zimbabwean law in resolving the dispute, and that, in the circumstances, the award was contrary to the public policy of Zimbabwe.

The first respondent has contended that it is not for this court to decide whether or not the arbitrator was correct to find that the agreement would have terminated on the date that the arbitrator said it terminated. It was suggested, by the respondent, that what this court must ask itself is whether the conclusions reached by the arbitrator offends the public policy of Zimbabwe in the sense of being so far reaching and outrageous in its defiance of logic or accepted moral standards that a sensible and fair-minded person would consider the conception of justice in Zimbabwe would be intolerably hurt by the award: see Zimbabwe Electricity Supply Authority v Maposa 1999 (2) ZLR 452 (S).

The critical issue for determination before the arbitrator was the duration of the contract.

It is trite that the original UNCITRAL Model did not define the concept of public policy. It is accepted, however, that the concept covers fundamental principles of law and justice in substantive as well as procedural law.

In casu, the standard set in Zimbabwe Electricity Supply Authority v Maposa 1999 (2) ZLR 452 (S) has not been met.

The applicant has chosen not to place the record of proceedings before for the court resulting in the court being unable to judge for itself whether or not the conclusions of the arbitrator are so outrageous in defiance of logic and accepted moral standards as to lead a fair minded person to believe that justice in Zimbabwe would be intolerably hurt by the award in favour of the first respondent.

The applicant has not, in the affidavit on which the application is premised, even alleged that the conclusions reached by the arbitrator defied logic to such unacceptable standards.

Instead, the applicant has sought to deal with the matter as if it were an appeal or application for review.

In Zimbabwe Electricity Supply Authority v Maposa 1999 (2) ZLR 452 (S) the court stated:

“An award will not be contrary to public policy merely because the reasoning or conclusions of the arbitrator are wrong in fact or law. In such a situation, the court would not be justified in setting the award aside. Under Article 34 or 36, the court does not exercise an appeal power and either uphold or decline to recognise an award having regard to what it considers should have been the correct decision.”

Whether or not the arbitrator arrived at the wrong decision is not an issue that this court is empowered, in terms of Article 34, to decide.

What the applicant should have established is that the decision and conclusions reached, based on the standard set in Zimbabwe Electricity Supply Authority v Maposa 1999 (2) ZLR 452 (S) was so outrageous in its defiance of logic and reasoning that any fair-minded person would have a conception that justice in Zimbabwe would be hurt by that award.

This is not the case of the applicant.

There is no suggestion anywhere in the heads of argument pointing me to an aspect of the award that breached the rules of natural justice.

In any event, there is no principle that says that an arbitrator can have his award set aside on the basis that he erred or was wrong. If it is there I have not been made aware of it.

In Telcordia Technologies Inc v Telcom SA 2007 (3) SA 266 HARMS JA stated:

“…,. An arbitrator 'has the right to be wrong' on the merits of the case, and it is a perversion of the language to label mistakes of this kind as a misconception of the nature of the inquiry; they may be misconceptions about meaning, law, or the admissibility of evidence, but, that is far cry from saying that they constitute a misconception of the nature of the inquiry.

To adopt the quoted words of HOEXTER JA;

'It cannot be said that the wrong interpretation of the Integrated Agreement prevented the arbitrator from fulfilling his agreed function or from considering the matter left for him for decision. On the contrary, in interpreting the Integrated Agreement, the arbitrator was fulfilling the function assigned to him by the parties, and it follows that the wrong interpretation of the Integrated Agreement could not afford any ground for review by the court.'”

The next point to consider is whether or not the claim before the arbitrator had prescribed and that the award by the arbitrator, therefore, in the circumstances, was contrary to the public policy of Zimbabwe.

The deponent to the founding affidavit contends that the agreement terminated on 31 December 2004. Prescription then started running on 1 January 2005 and completed its course on 31 December 2008.

The claim was instituted on 26 September, well after it had become prescribed.

He states that the date of termination of the agreement cannot be in doubt as the first respondent sought a renewal in a letter dated 12 September 2005. It is further contended, by the applicant, that the new contract, save for alterations to the dates for commencement and termination, is in exactly the same terms as that concluded on 1 January 2003.

The applicant has argued that the arbitrator correctly identified the critical issue for determination as being the duration of the agreement and that once this had been established the issue of liability would be settled. It was in the view of the applicant, up to the claimant to establish the duration of the agreement but that surprisingly the onus appeared to have been placed on the applicant.

The applicant further contends that it is against the public policy of Zimbabwe to enforce obligations which have become extinguished through prescription. Therefore, the applicant contends, the relief granted to the first respondent was contrary to the provisions of sections14 and 15 of the Prescription Act [Chapter 8:11].

Further to this, the applicant is alleged to have admitted liability in terms of two documents admitted as exhibits before the arbitrator.

These documents, according to the first respondent, served to interrupt any alleged prescription as claimed by the applicant.

In addition to this, the first respondent contended that despite the protestations by the applicant, the parties had not executed a subsequent agreement and yet they continued to deal with each other leading to the conclusion that the contract did not terminate on 31 December 2004, as alleged by the applicant, but continued beyond the stipulated date as found by the second respondent.

The respondent denied that the second respondent had sought refuge in clause 8(d) of the contract and it denies, further, that this clause contradicts clauses 1 and 2 of the same.

In the premises, the first respondent denied that there had been a contravention of sections 14 and 15 of the Prescription Act.

Clauses 1 and 2 of the agreement provide for a commencement as well as a termination date. However, clause 8(d) also speaks of the duration of the agreement notwithstanding the provisions of the two clauses referred to above.

This is what it provides:

“Notwithstanding the date of signature of this agreement, this agreement shall be deemed to have commenced on the commencement date and shall be relevant after two years. After this review period, the agreement shall continue indefinitely save that either party may withdraw from this agreement on giving three months notice in writing to the other.”

In addition, the evidence adduced before the arbitrator seemed to suggest that the parties continued trading with each other long after the agreement would have been terminated.

If indeed the arbitrator came to the conclusion that the matter had not prescribed when in fact it had, such a finding is not, in my view, a breach of section 14 of the Prescription Act. The Act does not create a criminal offence in the event that a debt that has prescribed is found by a court or tribunal not to have prescribed.

HH336-13 : WEI WEI PROPERTIES (PVT) LIMITED vs S &T EXPORT AND IMPORT (PVT) LIMITED
Ruled By: MATHONSI J

As if that was not enough, the respondent has the unenviable task of proving that the counter application was filed timeously. In terms of Article 34(3) of the Model Law, an application for setting aside an award must be made within 3 months from the date the award was delivered. The applicant objected ...

Appealed
SC11-15 : PERUKE INVESTMENTS (PRIVATE) LIMITED vs WILLOUGHBY'S INVESTMENTS (PRIVATE) LIMITED and THE HONOURABLE MR. JUSTICE (RETIRED) A.R. GUBBAY SC
Ruled By: GOWORA JA, HLATSHWAYO JA and PATEL JA

The High Court held that the first respondent's challenge was not filed out of time but was filed within the prescribed three months of receiving the award - even though the first respondent had been advised three weeks earlier that the award was ready for collection….,. The procedural point raised in the grounds of ...

The procedural point raised in the grounds of appeal pertains to the period within which an arbitral award may be challenged. The appellant contends that the court a quo misdirected itself in holding that the stipulated period of three months commenced when the first respondent took receipt of the arbitral award as opposed to the day after it was advised that the award was available….,.

As appears from paragraph (3) of Article 34 of the Model Law (Schedule to the Arbitration Act [Chapter 7:15]), an application to set aside an arbitral award must be made within three months from the date when the applicant has received the award. I am unable to find anything specific in the Model Law that elaborates the manner and circumstances in which the applicant is deemed to have received the award. The only other provisions that are relevant to this question are Articles 3 and 31.

Article 3 of the Model Law (Schedule to the Arbitration Act [Chapter 7:15]), which deals with the receipt of written communications, provides as follows:

“(1) Unless otherwise agreed by the parties -

(a) Any written communication is deemed to have been received if it is delivered to the addressee personally or if it is delivered at his place of business, habitual residence or mailing address; if none of these can be found after making a reasonable inquiry, a written communication is deemed to have been received if it is sent to the addressee's last know place of business, habitual residence or mailing address by registered letter or any other means which provides a record of the attempt to deliver it;

(b) The communication is deemed to have been received on the day it is so delivered.

(2) The provisions of this article do not apply to communications in court proceedings.”

Article 31 governs the form and contents of arbitral awards. Paragraph (4) of this article stipulates that:

“After the award is made, a copy signed by the arbitrators in accordance with paragraph (1) of this article shall be delivered to each party.”

PRESCRIPTION PERIOD FOR CHALLENGING ARBITRAL AWARDS

In the instant case, both parties were advised by the Harare Arbitration Centre, on 25 February 2011, that the arbitrator's award was ready for collection. The first respondent uplifted the award on 14 March 2011 and filed its application to the High Court challenging the award on 14 June 2011. On these facts, the court a quo held that the actual date of receipt was when the prescriptive period began to run and that, therefore, the first respondent had timeously filed its application.

Counsel for the appellant submits that the period for filing an application under Article 34 of the Model Law (Schedule to the Arbitration Act [Chapter 7:15]) cannot be allowed to run in perpetuity. He further submits that the receipt of an award does not necessarily involve physical prehension but can be effected traditio longa manu (by long hand delivery). He relies for this proposition on the headnote to Groenewald v Van der Merwe 1917 AD 233 where the following passage appears:

“To constitute delivery, physical prehension is not essential if the subject-matter is placed in the presence of the would-be possessor in such circumstances that he and he alone can deal with it at pleasure.”

Counsel for the first respondent argues that Article 34(3) of the Model Law (Schedule to the Arbitration Act [Chapter 7:15]) must be read in its literal and grammatical sense, i.e. the award in question must be delivered to the parties in order to be received. He further argues that the first respondent's delay in uplifting the award, as is explained in its answering affidavit, was occasioned by the arbitrator's insistence on the payment of his fees before the award could be released and the subsequent confusion as to whether or not the first respondent's payment was duly reflected in the arbitrator's bank account.

I have no doubt that the purpose of arbitration proceedings is to enable the expeditious resolution of disputes. Moreover, there are two maxims of the law that are apposite to the circumstances of this matter, viz. leges vigilantibus non dormientibus subveniunt (laws serve the vigilant and not the sluggish) and interest reipublicae ut sit finis litium (there must be finality to litigation). However, in the absence of any absurdity and on the particular facts of this case, I am disinclined to depart from the literal and grammatical meaning of Article 34(3) of the Model Law (Schedule to the Arbitration Act [Chapter 7:15]).

I take this view for two compelling reasons.

Firstly, a literal reading of Article 34(3) of the Model Law (Schedule to the Arbitration Act [Chapter 7:15]), as requiring actual, as opposed to putative, receipt of the arbitral award, is amply supported by Article 3(1) of the Model Law (Schedule to the Arbitration Act [Chapter 7:15]) which enjoins physical delivery of written communications in arbitral proceedings, either in person to the intended recipient or to his place of business or habitual residence or by registered mail. This interpretation is further fortified by Article 31(4) which explicitly mandates the delivery of a signed copy of the award to each party. The burden to do so is implicitly placed on the arbitrator himself or on the administrator of the place of arbitration. There is no obligation imposed upon either party to take steps to actively obtain a copy of the award.

Secondly, as I have already noted, although the award in casu was said to have been ready for collection on 25 February 2011, it was only released and availed to the first respondent on 14 March 2011 - after the question of payment of the arbitrator's fees had been satisfactorily resolved. Thus, the intervening delay of two and a half weeks was not solely attributable to the first respondent; nor can this delay be regarded as having been unduly lengthy. On these particular facts, it seems to me churlish to penalize the first respondent for having disregarded that short period in computing the prescribed three month period for challenging the award.

I would, however, add that it might be necessary and appropriate to adopt a different approach on a different set of facts, where the delay in securing a copy of the award is significantly inordinate and is entirely due to the supine or calculated dilatoriness of the party concerned.

View Appeal
SC13-18 : TBIC INVESTMENTS (PVT) LTD and PAUL CHIDAWANYIKA vs KENNEDY MANGENJE and MINISTER OF LANDS & RURAL DEVELOPMENT and REGISTRAR OF DEEDS and ATTORNEY GENERAL and COMMISSIONER OF POLICE
Ruled By: GWAUNZA JA, GOWORA JA and BHUNU JA

This is a hotly contested appeal against the whole judgment of the High Court sitting at Harare, and delivered on 30 October 2013.

The epicentre of the dispute is a certain piece of land in the Goromonzi District known as the Remaining Extent of Stuhm measuring 583,1360 hectares in extent registered in the name of TIBIC Investments (Pvt) Ltd under Deed of Transfer 1724/2009.

TIBIC Investments (Pvt) Ltd is an indigenous company in the sense, that, its shareholders and directors are indigenous citizens of this country.

The historical background and factual basis of the case is by and large common cause.

The genesis of the dispute is that in 1970, the late Paul Michael Henry Reimer obtained ownership of a certain piece of land in the District of Goromonzi known as the Remaining extent of Stuhm measuring 1,074.7410 hectares in extent, under Deed of Grant 1262/70.

Paul Reimer does not appear to have bought the land, as there is no mention of any money having exchanged hands.

His son, Cecil Michael Reimer, in due course, inherited the said piece of land from his late father under Deed of Transfer 3032/87.

Starting from 1997 to 2009, Cecil Michael Reimer began to subdivide the main block of the remaining extent of Stuhm measuring 1,074.7410 hectares in extent into three (3) lots which he sold as follows:

DATE LOT SOLD BUYER HECTERAGE DEED OF TRANSFER

1997 2 Darnall Invs 412.1091 497/97

1998 3 Douglasdale PL 79.4959 9247/98

2009 1 TIBIC Invs 583.1360 1724/09

Total 3 Lots 1,074.741

He, however, sold the disputed Lot One in 2009 in circumstances where Government had already issued a preliminary notice to compulsorily acquire the disputed land under General Notice 405A of 2000 published in the Extraordinary Government Gazette of 25 August 2000.

The preliminary notice reads:

“NOTICE is hereby given, in terms of subsection (1) of section 5 of the Land Acquisition Act [Chapter 20:10], that, the President intends to acquire, compulsorily, the land described in the schedule for resettlement purposes.

A plan of the land is available for inspection at the following offices of the Ministry of Lands, Agriculture and Rural Resettlement between 8am and 4pm from Monday to Friday, other than on a public holiday, on or before the 24th of September 2009 –

140. Deed of Transfer 3032/87, registered in the name of Cecil Michael Reiner, in respect of certain piece of land situate in the district of Goromonzi, being the remaining extent of Stuhm, measuring one thousand and seventy-four, comma seven four one zero (1,074.7410) hectares.”

The same notice was re-gazetted under General Notices 298A of 2003 and 323 of 2003.

In all the three (3) Notices, the extent of the land earmarked for acquisition was given as 1,074.741 hectares.

The gazetted land had, however, been subdivided into three (3) lots.

Considering that it had acquired the whole land, the acquiring Authority offered Lot 1 to the first respondent, Kennedy Mangenje, as compensation for his farm which it had compulsorily acquired and distributed to other beneficiaries.

The first respondent accepted the offer.

The offer letter addressed to the first respondent, and dated 7 August 2006, reads in Part:

“Dear Sir/Madam

Re: OFFER OF LAND HOLDING UNDER THE LAND REFORM AND RESETTLEMENT PROGRAMME (MODEL A2 PHASE II0)

1. The Minister of State for National Security, Lands. Land Reform and Resettlement in the President's Office has the pleasure in informing you that your application for land under Model A2 Scheme has been successful.

2. You are offered Subdivision 1 of R/E of STUHM in GOROMONZI District of MASHONALAND PROVINCE for agricultural purposes. The farm is approximately 534.00 hectares in extent.

3. The offer is made in terms of the Agricultural Land Settlement Act [Chapter 20:01] whose provisions you are advised to acquaint yourself with. Conditions that go with the offer are attached.”

In summary, what was gazetted was the whole of the original Remaining Extent of Stuhm.

However, Lots 2 and 3 had already been sold and ceased to be part of the original block of land.

Lot 1 thus remained as part of the remaining extent of the whole original block of land.

It stands to reason, that, when the acquiring authority gazetted the whole of the original Remaining Extent of Stuhm, Lot 1 being the remaining fraction of the original block was equally gazetted in tandem as part of the whole.

That reasoning is anchored on the well-known maxim, that, the greater includes the lesser, which principle is of universal application: see City of Lakerwood v Plain Dealer Publishing Co. [1988] USSC 123.

In other words, the gazetting of a whole piece of land includes the gazetting of a fraction of that land.

The severed Lots 2 and 3 were not validly gazetted because they had ceased to be part of the original block and the new owners were not given notice of the intended compulsory acquisition.

The same cannot, however, be said of Lot 1 which remained as a fraction of the whole original Remaining Extent of Stuhm which Cecil Reimer continued to hold under Deed of Transfer 3032/87.

Just to draw an analogy, if the Sheriff had given notice to attach the three (3) Lots, under the mistaken belief that they all belonged to Cecil Michael Reimer, his notice and attachment of Block 1 could not be foiled simply because Lots 2 and 3 belonged to some other people. The Sheriff will undoubtedly be entitled to attach the remaining Lot 1 belonging to Cecil Michael Reimer.

By the same token, once the acquiring authority had gazetted the whole original piece of land, it was entitled, as of right, to acquire any fraction of that land that was legally subject to acquisition in terms of the Constitution.

The appellant sought to attack the first notice, No. 405A of 2000, on the basis that it had expired in terms of the provisions of the Land Acquisition Act. The same applies to the second and third notices, 298A of 2003 and 323A of 2003.

It also sought to argue, that, the land gazetted does not exist simply because the gazetted land is 1,704.741 hectares in extent whereas the land in dispute is 583.136 hectares in extent.

The disputed land in respect of which notice to compulsorily acquire was given can easily be identified by employing the blue pencil rule to excise Lots 2 and 3 from the whole, leaving the land in dispute intact, being the Remaining extent of Stuhm measuring 583.136 hectares held by Cecil Michael Reimer under Deed of Transfer 3032/1987.

The blue pencil rule is a common law doctrine which allows a court to sever an unenforceable portion of a contract so as to enforce the remaining enforceable portion of that contract. Although this is not a contractual dispute, I find the concept useful in this case to separate that which is enforceable from that which is not enforceable....,.

Cecil Michael Reimer sowed the seeds of severability or divisibility when he subdivided the original land into separate and distinct three (3) Lots which could easily be identified as shown above.

What emerges quite clearly is that, the severance of Lots 2 and 3 from the whole block of land cannot divest Lot 1 of its identity. It remains intact, and its gazetting remains extant despite the severance of Lots 2 and 3 from the whole.

In the result, the conclusion that Lot 1, which is the land in dispute, was identified and gazetted is beyond contest....,.

The disputed land was properly identified and gazetted as part of the whole original Remaining Extent of Stuhm measuring 1,704.741 hectares in extent.

It is therefore anomalous for the appellants to argue, that, the land in question does not exist when the first appellant bought it from Michael Reimer and had it registered in its name under the same description, being the Remaining Extent of Stuhm measuring 583.136 situated in the district of Goromonzi.

By the same token, the second appellant cannot dispute the existence of the disputed land when he leased and occupied it under the same description.

There is therefore no merit in the appellants argument, that, the land in question was not properly identified and gazetted.

For that reason, the finding by the court a quo, that the disputed land exists, is beyond reproach.

There can, however, be no denying that the process of identifying the disputed land for purposes of compulsory acquisition was fraught with errors, including the spelling of the name of the previous owner of the land, its exact size and extent as correctly found by the court a quo.

These errors, and more, were not peculiar to this particular piece of land. The mistakes were many and varied relating to various other pieces of land, thereby threatening to derail the entire Land Reform Programme.

In order to protect and keep the Land Reform Programme on course, Parliament, in its wisdom, amended the former Constitution.

The intention of the legislature was to automatically validate the acquisition of all agricultural land identified and listed under Schedule 7 for purposes of the land reform program on or before 8 July 2005 regardless of any errors or mistakes that may otherwise have nullified the acquisition in the normal run of things.

The disputed land was acquired under the former Constitution of which section 16B(2), as amended, provides as follows:

“(a) All Agricultural land –

(i) That was identified on or before the 8th July 2005, in the government Gazette or Gazette Extraordinary under section 5(1) of the Land Acquisition Act [Chapter 20:10], and which is itemized in Schedule 7 being agricultural land required for resettlement purposes is acquired by and is vested in the State with full tittle therein with effect from the appointed date.

…,.

(5) Any inconsistency between anything contained in –

(a) A notice itemized in Schedule 7; or
(b) A notice relating to land referred to in subsection (2)(ii) OR (iii); and the tittle deed to which it refers or is intended to refer, and any error whatsoever contained in such notice, shall not affect the operation of subsection (2)(a) or invalidate the vesting of title in the State in terms of that provision.”

The effect of the above section was to revive, resuscitate, and validate the acquisition of all identified agricultural land listed in the 7th Schedule for resettlement purposes prior to 8 July 2005 regardless of any errors or withdrawals in the acquisition process.

No limitation can be imposed on the acquisition process once the land is shown to have been gazetted and listed in the 7th Schedule prior to 8 July 2005.

The language used in section 16B(2) of the former Constitution is clear and unambiguous, admitting no ambivalent interpretation.

The only meaning to be ascribed to the section is that once land is gazetted and listed in Schedule 7 it automatically stands acquired by the State with full title by operation of law.

The mere fact that the notice was at one time withdrawn or expired is irrelevant.

HH477-13 : BARCLAYS BANK OF ZIMBABWE LIMITED vs RESERVE BANK OF ZIMBABWE and UNIVERSITY OF ZIMBABWE
Ruled By: ZHOU J

The submission that the cause of action in the application for joinder has now prescribed must be rejected for two reasons; (i)…,. (ii) Secondly, and in any event, the defence of prescription is not sustainable on the facts of this matter. What triggers an application for the joinder of a third party is the service of summons against a ...

HH249-13 : MARIAN KATSANDE (NEE MANDIZVIDZA) vs FADZAI KATSANDE (as Executrix Dative to Estate late Tongai Katsande) and FUNGAI KATSANDE and MASTER OF THE HIGH COURT N.O.
Ruled By: CHITAKUNYE J

The applicant is married to the second respondent in terms of the Marriages Act [Chapter 5:11]. Their marriage is apparently on the rocks. The first respondent was married to the late Tongai Katsande who was the second respondent's brother. The third respondent is cited in his official capacity as the property involved is registered in the name of the late Tongai Katsande.

In the year 2010, the second respondent issued summons for a decree of divorce and other ancillary relief against the applicant in case number HC2340/10. In the declaration he listed Stand 14478, Zengeza 3, Chitungwiza as part of the parties' matrimonial property acquired during the subsistence of the marriage and thus subject to distribution in terms of the Matrimonial Causes Act [Chapter 5:13].

Later on, the second respondent sought to exclude that particular property contending that it was not matrimonial property but belonged to his late brother Tongai Katsande's estate.

In the meantime, the applicant, in response to the summons, had made a counter-claim in which she also included Stand 14478 Zengeza 3, Chitungwiza as part of the matrimonial property. Despite the second applicant's effort to exclude the property the applicant has insisted that it is matrimonial property.

It was when faced with the above that the applicant approached this court seeking to join the first respondent in her capacity as executrix dative to estate late Tongai Katsande and the Master of the High Court in his capacity as the officer charged with overseeing the administration of deceased estates.

The first respondent opposed the application.

In her opposition, the first respondent contended that the main matter, HC2340/10, has nothing to do with her and her late husband. She further contended that the property in question is registered in her late husband's name and so should not be dragged into the divorce action between the applicant and the second respondent.

Rule 87(2) of the High Court Rules, 1971 states that:-

“At any stage of the proceedings, in any cause or matter, the court may, on such terms as it thinks just, and either of its own motion or on application -

(a)…,.

(b) Order any person who ought to have been joined as a party or whose presence before the court is necessary to ensure that all matters in dispute in the cause or matter may be effectually and completely determined and adjudicated upon, to be added as a party;”

In Macey's Supermarket and Bottle Store (Greencroft) (Pvt) Ltd v Edwards 1964 RLR 13 (SR) HATHORN J held that:

“Any party who has a direct and substantial interest in proceedings must be joined.”

In Marais & Another v Pongola Sugar Milling Co. & Ors 1961 (2) SA 698 (N), a two-tier approach was formulated in the determination of a joinder as follows:-

“(1) That a party must have a direct and substantial interest in the issues raised in the proceedings before the court; and that

(2) His rights may be affected by the judgement of the court.”

The issue sought to be determined is whether Stand 14478 Zengeza 3, Chitungwiza should be distributed as the applicant's and the second respondent's joint matrimonial property upon dissolution of their marriage; and, if so, in what ratio.

It is common cause that the property in question is registered in the name of the late Tongai Katsande.

In the main case, HC2340/10, that property was referred to as the parties' matrimonial property by both the second respondent and the applicant. In another case, no.172/10, at Chitungwiza Magistrates' Court, the second respondent sued Angeline Maturure for several sums of money connected to the property in question which he claimed was his house.

Indeed, one such claim reads:-

“Payment of US150= per month rent for the defendant's occupation of plaintiff's occupation of plaintiff's house, being 14478 Zengeza 3, Chitungwiza from January 2010 to date of vacation.”

Such assertions can only lend credence to the applicant's argument that the house is in fact matrimonial property. The issue as to whether that property is matrimonial property is thus before these courts for determination.

It is clear that the first respondent has a direct and substantial interest in that issue. His rights as the person in whose name the property is registered and who also claims to be owner by virtue of such registration may be affected by the court's decision. It is only proper, and in the interest of justice, that the first respondent be joined.

The first respondent's opposition was clearly ill-advised and detrimental to the interests of the estate late Tongai Katsande.

The contention that the applicant's claim is prescribed is a mere clutch at a straw. If that property is found to be matrimonial property there is no way prescription would come in.

The third respondent did not oppose the application to be joined and so will be so joined.

Accordingly it is hereby ordered that:-

1. The first and third respondents be and are hereby joined as second and third defendants respectively in case number HC2340/10.

2. The first and third respondents are hereby granted leave to enter appearance to defend in HC2340/10 within 10 days from the date of this judgment.

3. Should they enter or fail to enter appearance to defend, the matter is to proceed in terms of the rules in respect of other pleadings.

4. Costs shall follow costs in the main cause HC 2340/10.

SC32-15 : BINDURA MUNICIPALITY vs PAISON MUGOGO
Ruled By: GUVAVA JA

This chamber application was placed before me in terms of Rule 5 of the Supreme Court Rules 1964. Although it was unopposed, it raised an issue concerning the interpretation of Practice Directive 3/13.BACKGROUNDThe appeal relating to this matter was set down before the Supreme Court on 5 September 2014. It ...

Appealed
HH93-16 : RITA MBATHA vs FARAI ZIZHOU and CONFEDERATION OF ZIMBABWE INDUSTRIES
Ruled By: DUBE J

The application before me is a special plea and exception.

The brief facts surrounding this claim are as follows:

The plaintiff was employed by the Confederation of Zimbabwe Industries reporting to the first defendant who was its President and Chief Executive Officer. On 18 June 2014, the plaintiff issued summons against the two defendants claiming damages for shock, non-patrimonial damages, post traumatic damages and pain and suffering.

The plaintiff claims that during the course of her employment with the second defendant, which ran between September 2002 and June 2003, she was sexually harassed by the first defendant who would pester her for an improper relationship. She claims that her resistance to the sexual advances culminated in the termination of her employment by the first defendant for a petty offence.

She challenged the dismissal.

The matter ended up at arbitration. An arbitrator ruled in her favor after having found that she had been sexually harassed by the first defendant. The arbitrator ordered the defendants to jointly compensate her for the damages she had suffered as a result of the sexual harassment.

The defendants have filed a special plea and also except to the plaintiff's summons and declaration. They take two points:

(i) The first point both defendants take is that the plaintiff's claim has prescribed.

The defendants submitted that by the time summons was issued, on 18 June 2014, the plaintiff's claim had prescribed.

(ii) The second defendant challenges the summons on the basis that it does not disclose a cause of action against it. It avers that the second defendant's liability can only be vicarious.

The second defendant challenges the declaration on the basis that it does not allege that the actions against the plaintiff were committed “during the course and within the scope of his employment.”

The defendants contend that the omission is fatal to the plaintiff's claim....,.

The next issue is that of prescription.

I have chosen to deal with this point first as it is capable of disposing of the matter without the need to delve into the second point raised on the merits.

It is trite that a debt or cause of action prescribes after three (3) years in terms of section 15(a) of the Prescription Act [Chapter 8:11], as read with section 2.

The term 'cause of action' was succinctly defined in Chiwawa v Mutzuris and Ors HH07-09…, where the court stated as follows;

“It is now settled in our law, in my view, that the term refers to when the plaintiff is aware of every fact which it would be necessary for him or her to prove in order to support his or her prayer for judgment. It is the entire set of facts that the plaintiff has to allege in his or her declaration in order to disclose a cause of action but does not include the evidence that is necessary to support that cause of action.”

See also Shinga v General Accident Insurance Co. (Zimbabwe) Ltd 1989 (2) 268.

Prescription begins to run when a litigant becomes aware of all the facts that she requires to allege in her prayer for judgment.

There are instances when the setting in of prescription is delayed.

One such instance is provided for in section 17(1)(d) of the Prescription Act. The section provides that prescription is delayed “if the debt is the subject matter of a dispute submitted to arbitration…,.”

Section 17 of the Prescription Act covers a situation where a debt or cause of action has been submitted to arbitration. Section 17(1)(d) is applicable where the subject matter of a dispute is submitted to arbitration.

The rationale behind the section must have been to ensure that litigants who pursue the arbitration route do not get barred from bringing their claims to the formal court system should they wish to do so; that after the expiry of three years from the time the cause of action arose. The time that litigants take when attempting to get the dispute resolved by way arbitration is not counted for purposes of determining if the debt or cause of action has prescribed.

Prescription is, in those circumstances, delayed until the arbitration proceedings are either finalized or abandoned.

The cause of action, as outlined in the summons, is the sexual harassment that occurred during the time the plaintiff was employed by the second respondent. The plaintiff was employed by the second defendant between 2 September 2002 and 19 June 2003. The cause of action arose during that period.

Summons was only issued on 18 June 2014 - some 11 years after the plaintiff had left the second defendant's employment. The plaintiff was, by the end of June 2003, aware of every fact which was necessary for her to prove in order to support her claim for damages for sexual harassment.

Instead of approaching the High Court claiming damages for sexual harassment, she went for conciliation with a complaint of sexual harassment and claiming that an unfair labour practice had occurred and that she had been wrongly dismissed.

The matter ended up with an arbitrator who on 28 March 2014.

The terms of reference of the arbitrator did not include determination of the question of damages for sexual harassment. The questions referred by the conciliator were simply whether she had been sexually harassed and the issue concerning her dismissal. The arbitrator ruled that the plaintiff was sexually harassed by the first defendant and both defendants were ordered to jointly compensate the plaintiff for damages for sexual harassment.

The jurisdiction of arbitrators, when dealing with unfair labour practices, is limited to stopping the conduct complained against. The role of the Labour Court and arbitrators, when dealing with claims involving sexual harassment, is to make a finding on allegations of unfair labour practice and only seek to stop the practice.

The Labour Court or tribunal does not have jurisdiction to assess damages arising from a complaint of an unfair labour practice.

Similarly, a Labour Court or tribunal faced with a complaint of sexual harassment cannot proceed and make an award for damages arising out of the sexual harassment.

The claim for damages was never properly before the arbitrator.

The arbitrator erred in dealing with the issue regarding damages suffered as a result of the sexual harassment as damages were not part of the arbitrator's terms of reference. His terms of reference were clear that he was required to deal with the unfair labour practice only. He dealt with the claim for damages out of his own initiative and wrongly so. He went on a frolic of his own.

The award was subsequently set aside by this court on the basis that the arbitrator lacked jurisdiction to award civil damages.

The claim for damages was not properly before the arbitrator. If it was not properly so, then there was no submission and hence there is no delay to talk about. There, setting in of prescription was not delayed by the purported submission to arbitration because the claim for damages was improperly before the arbitrator.

Section 94 of the Prescription Act [Chapter 8:11] deals with prescription of labour disputes and hence has no relevance to this claim.

The issue of damages is being raised for the first time in a competent court well after the claim has prescribed.

By the time summons were issued, the claim had prescribed.

In the result, it is ordered as follows:

1. The defendant's special plea is upheld.

2. The plaintiff's claim is dismissed with costs.

View Appeal
SC69-18 : RITA MBATHA vs FARAI ZIZHOU and CONFEDERATION OF ZIMBABWE INDUSTRIES
Ruled By: MAKARAU JA, HLATSHWAYO JA and PATEL JA

This is an appeal against the decision of the High Court upholding the respondents' special plea of prescription, and, consequently, dismissing the appellant's claim with costs.The appellant has noted her appeal against the entire judgment and prays, as per her amended prayer, that the judgment of the court a quo ...

This is an appeal against the decision of the High Court upholding the respondents' special plea of prescription, and, consequently, dismissing the appellant's claim with costs.

The appellant has noted her appeal against the entire judgment and prays, as per her amended prayer, that the judgment of the court a quo be set aside and substituted with an order dismissing the special plea with costs.

Background

This protracted and bitterly contested matter emanates from the following factual background:

The appellant was employed by the second respondent, reporting to the first respondent, who was the Chief Executive Officer of the second respondent. On 18 June 2014, the appellant issued summons against the respondents claiming damages for shock, pain and suffering, arising from alleged sexual harassment by the first respondent between September 2002 and June 2003.

According to the appellant, her resistance to the first respondent's unsolicited and predatory advances culminated in her dismissal from the second respondent's employment. Her dismissal was challenged and referred to arbitration. The arbitrator found in her favour after finding that she had been sexually harassed by the first respondent.

The arbitrator initially ordered both respondents to jointly compensate the appellant, but, in subsequent proceedings, he referred the parties to the High Court to adjudicate the appellant's claim for damages for sexual harassment.

Before the High Court, the respondents filed a special plea that the claim had prescribed by the time that summons were issued in June 2014.

The second respondent also excepted to the declaration on the basis that it did not disclose a cause of action by reason of the appellant's failure to specifically and properly allege vicarious liability on its part in respect of the first respondent's conduct.

The court a quo found that, by the end of 2003, the appellant was aware of every fact necessary to prove her claim for damages. However, instead of approaching the High Court for damages, she pursued her claim through the labour relations mechanisms of conciliation and arbitration. The arbitrator had no jurisdiction to assess damages arising from an unfair labour practice, and, therefore, could not award damages for sexual harassment. The claim for such damages was not part of the arbitrator's terms of reference and was not properly before the arbitrator.

In the circumstances, the court held that the setting in of prescription was not delayed, in terms of section 17(1)(d) of the Prescription Act, by the purported submission of the claim to the arbitrator. The claim for damages was raised before a competent court well after it had prescribed.

In the event, the court upheld the respondents' special plea of prescription and dismissed the appellant's claim with costs.

Submissions on Appeal

The appellant's position, as appears from her grounds of appeal and voluminous heads of argument, is that the question of sexual harassment was a labour matter to be first determined and disposed of by the arbitrator before any claim for delictual damages could be lodged at the High Court.

She further submits that the issues of sexual harassment and vicarious liability were part of the arbitrator's terms of reference.

Moreover, the arbitrator's finding of sexual harassment was not appealed against and remained unchallenged.

Thus, she contends that the question of damages, having been properly raised before the arbitrator, was not raised for the first time before a competent court well after her claim had prescribed.

Counsel for the first respondent submits, that, there is a fundamental distinction between a claim for compensation in a labour dispute and a claim for damages under the lex Aquilia. Therefore, since there was a different cause of action before the arbitrator as compared with that before the High Court, the reference to arbitration did not operate to interrupt the running of prescription on the claim for damages.

Counsel for the second respondent echoes the same position, but from a slightly different angle.

He submits that the appellant's claim of sexual harassment created two distinct rights:

(i) One was an exclusively labour matter;

(ii) While the other was purely for civil damages.

Consequently, the appellant's claims before the arbitrator did not have the effect of suspending the running of prescription as against the appellant's claim in the High Court.

However, he accepted that the rationale behind section 17(1)(d) of the Prescription Act was the need to avoid the multiplicity of litigation in respect of the same cause of action.

In casu, there are two critical factors that are not in dispute:

(i) Firstly, one of the questions referred to the arbitrator for determination was “whether or not sexual harassment was perpetrated on R.M. Mbatha by F.B. Zizhou in his capacity as Confederation of Zimbabwe Industries Chief Executive Officer.”

(ii) Secondly, in March 2014, the arbitrator found that the appellant had been sexually harassed and ordered the respondents to compensate her for the damages she had suffered.

However, as I have already indicated, the arbitrator subsequently referred the parties to the High Court to adjudicate the appellant's claim for damages for sexual harassment, as that was a matter that fell outside his jurisdictional remit.

In any event, the arbitrator's finding, that the appellant had been sexually harassed, remains extant. It has not been appealed against or otherwise challenged.

Whether Prescription Interrupted by Arbitration Proceedings

In light of the exchanges between the Court and the parties at the hearing of the appeal, the principal issue for determination in casu is the meaning to be ascribed to section 17(1)(d) of the Prescription Act [Chapter 8:11].

Section 17 of the Prescription Act enumerates the various circumstances in which the completion of prescription is delayed. Section 17(1)(d), which is specifically relevant in casu, provides as follows:

“(1) If -

…,.

(d) The debt is the subject matter of a dispute submitted to arbitration, or is the subject matter of a claim filed against the estate of a debtor who is deceased or against the insolvent estate of a debtor or against a company in liquidation or against an applicant under the Agricultural Assistance Scheme set out in the Third Schedule to the Agricultural Finance Corporation Act [Chapter 18:02]; or…, and the period of prescription would, but for this subsection, be completed before or on, or within one year after, the date on which the relevant impediment referred to in paragraph (a), (b), (c), (d) or (e) has ceased to exist, the period of prescription shall not be completed before the expiration of the period of one year which follows that date.”

As a matter of interpretive principle, in the context of statutory provisions, it is trite that the courts lean towards an interpretation that gives full effect to the purpose for which the provision under consideration was enacted.

In my view, a broad and generous interpretation of section 17(1)(d) of the Prescription Act would give effect to the twofold purpose for which it was enacted:

(i) The foremost rationale of the provision is to avoid the situation where the same dispute is submitted for adjudication before multiple fora.

(ii) The second objective is to ensure that litigants whose disputes are submitted to arbitration are not prejudiced by being precluded from instituting proceedings before the courts, should it become necessary to do so, in respect of the same matters.

On this broad and purposive approach, where a matter is submitted to arbitration, the running of prescription would be arrested notwithstanding that a different remedy is later sought, provided that remedy arises from the same cause of action. To hold otherwise would, in my view, operate to erode the purpose for which section 17(1)(d) of the Prescription Act was created.

While I accept that a cause of action is conceptually distinct from the overlying debt that is claimed, the latter cannot exist in vacuo and must be predicated on the underlying cause of action.

In the instant case, the debt, being the claim for damages for sexual harassment, cannot be severed or divorced from the cause of action, which is the sexual harassment itself.

The question that was submitted to the arbitrator for determination was whether or not sexual harassment was perpetrated on the appellant. This is the same cause of action from which the appellant's claim for damages emanates.

On this basis, it must be accepted, that, the debt claimed by the appellant, being the damages for sexual harassment, constitutes the subject matter of the dispute that was submitted to arbitration.

It then follows that the running of prescription on the claim for damages was interrupted in accordance with the provisions of section 17(1)(d) of the Prescription Act.

The same conclusion is arrived at if one has regard to the broad definition of the term “debt” in section 2 of the Prescription Act [Chapter 8:11], viz:

“Without limiting the meaning of the term, [a debt] includes anything which may be sued for or claimed by reason of an obligation arising from statute, contract, delict, or otherwise.”

The debt sued for in the court a quo arose from the delict of sexual harassment, which delictual matter was also competently before the arbitrator.

The debt in casu comprises two separate but interrelated components, to wit, the delictual conduct perpetrated by the first respondent and the consequent claim for damages.

The arbitrator dealt with and determined the first component of the debt, which consequently gave rise to the claim for damages in the court a quo.

Thus, inasmuch as an essential component of the debt was before the arbitrator, the debt was the subject matter of the dispute submitted to arbitration, thereby interrupting the running of prescription on the claim for damages in the court a quo.

Potential Plea of Lis Alibi Pendens

I am fortified in the foregoing conclusion from a different practical perspective.

The argument that the appellant should have simultaneously, or conjunctively with the arbitration proceedings, pursued a separate suit for delictual damages in the High Court results in the untenable scenario where the arbitrator might possibly have made findings contradictory to those made by the High Court.

Quite apart from this potentially anomalous scenario, the principles governing the special plea of lis alibi pendens would have operated to impede the successful institution of a claim for delictual damages. This is because the claim would be premised on the same cause of action in a dispute between the same parties already pending before an arbitral tribunal.

The rationale behind the special plea of lis alibi pendens is akin to that underlying section 17(1)(d) of the Prescription Act, viz. the need to avoid potential duplication of litigation founded on the same cause of action.

This point was highlighted by the Appellate Division in Murray & Roberts Construction (Cape) (Pty) Ltd v Upington Municipality 1984 (1) SA 571…, in interpreting the South African equivalent of section 17(1)(d) of the Prescription Act [Chapter 8:11]:

“The same duality of purpose can be seen, in my view, in section 13(1)(f) of the Act which is of direct relevance to the present case. The subsection applies 'if…, the debt is the object of a dispute subjected to arbitration.'

An arbitration agreement does not necessarily oust the jurisdiction of the court.

Despite the existence of such an agreement, the creditor may elect to institute legal proceedings, although he might be met by an application for stay of proceedings or a special plea to the same effect…,.

The court would, in practice, normally order a stay if requested to do so…,.

An arbitration agreement is therefore, in a sense, an impediment to the recovery of a debt by means of legal proceedings, but it is one, because it provides an alternative means of resolving disputes, which carries the approval of the law.

This applies a fortiori where a dispute has actually been subjected to arbitration.

The creditor is protected against the running of prescription because there exists an impediment to his approaching the ordinary courts, and the impediment exists because he is taking appropriate alternative steps to recover his debt. It is against this background that section 13(1)(f) of the Act should, in my view, be interpreted and applied.”

In casu, it would not have been practically possible for the appellant to institute proceedings for delictual damages in the High Court when another competent tribunal was already seized with an unfair labour practice arising out of the same cause of action.

This is so because the respondents would undoubtedly have pleaded lis alibi pendens and succeeded in that plea, thereby preventing the appellant from prosecuting her claim for damages.

Disposition

It follows from all of the foregoing that the appeal must succeed on the basis that the running of prescription against the appellant's claim for damages was interrupted by the submission to arbitration of her claim of sexual harassment by the respondents.

Thus, the prescriptive period would only have expired, in terms of section 17(1)(d) of the Prescription Act [Chapter 8:11], one year after the date of the award rendered in her favour.

Consequently, the appellant's claim for damages for sexual harassment, having been lodged in June 2014, within three months of the award rendered in March 2014, must be regarded as having been timeously lodged in the High Court.

It is accordingly ordered that:

1. The appeal be and is hereby allowed with costs.

2. The judgement of the court a quo be and is hereby set aside and substituted with the following:

“(i) The defendants' special plea of prescription is dismissed with costs.

(ii) The defendants shall plead to the plaintiff's claim within ten days from the date of the judgement handed down by the Supreme Court in Case No. SC80/18 as Judgment No. SC69/2018.”

HH675-21 : RITA MBATHA vs FARAI ZIZHOU and CONFEDERATION OF ZIMBABWE INDUSTRIES
Ruled By: MAFUSIRE J

Prescription for an ordinary debt is three years....,.In terms of section 17 of the Prescription Act [Chapter 8:11], and in paraphrase, the period of prescription, in respect of, among other things, a debt which is the subject matter of proceedings on arbitration, is extended for one year from the end ...

SC14-22 : CRISPEN VUNDLA and DAVID MUCHINGURI vs INNSCOR AFRICA BREAD COMPANY ZIMBABWE (PVT) LTD and MAXWELL SABILIKA N.O.
Ruled By: KUDYA AJA

On 13 April 2021, the applicants filed a chamber application for condonation and extension of time to appeal in terms of Rule 61 as read with Rule 43 of the Supreme Court Rules 2018.

It is opposed by the first respondent.

They seek the following relief:

1. The application for condonation and non-compliance with Rule 60(2) of the Supreme Court Rules 2018 be and is hereby granted.

2. The application for extension of time within which to file and serve a notice of appeal in terms of the Rules be and is hereby granted.

3. The applicants shall file their notice of appeal within five (5) days after the date this order is granted.

4. Each party shall bear its own costs.

THE FACTS

The deponent to the applicants founding affidavit was their legal practitioner of record by reason of his intimate involvement in the matter and the purely procedural nature of the relief sought.

The legal practitioner has acted in that capacity from the time the two challenged the termination of their employment before a labour officer on 20 November 2015, in the confirmation proceedings before the Labour Court on 18 November 2016, and in the three false starts that this matter has had in this Court in SC566/17 (an appeal), SC743/17 (application for striking of the appeal by the first respondent) and SC1089/17 (an application for joinder by the first respondent).

The two applicants were formerly employed by the first respondent as a Procurement Director and General Manager, respectively.

The first respondent (the employer) is a confectionery company incorporated in Zimbabwe, which is no longer trading. It has, however, been succeeded by Innscor Africa Ltd t/a Baker Inn Bakeries.

The second respondent is the labour officer who heard the dispute between the parties and sought confirmation of his ruling in the Labour Court in November 2016.

The first applicant and the employer purportedly concluded a consensual written agreement of termination of employment on 5 June 2014.

The agreement was alleged to have been brokered by Owen Murumbi, the former Finance and Human Resources Director of the employer.

The two parties signed the agreement and Owen Murumbi also appended his signature as a witness to the agreement.

The first applicant regards the termination to be a retrenchment process.

The second applicant was retrenched with the approval of the Retrenchment Board (the Board) on 5 December 2014.

He signed a retrenchment agreement in which, in paragraph 5, he absolved the first respondent from any further claims arising from the retrenchment process.

The two applicants were aggrieved by the entire retrenchment process.

They requested the labour officer to adjudicate a case of unfair dismissal and non-payment of employment benefits. The labour officer dismissed their claim in his draft ruling on 2 September 2016.

He provisionally held, that, the termination in respect of the first applicant was by mutual consent. He found that mutual consent was depicted by, firstly, the signatures of the first applicant and his witness; and, secondly, by the first applicant's unequivocal acceptance and consumption of the terminal package.

Regarding the second applicant, he found that he had been properly retrenched in accordance with the relevant statutory dictates of the Labour Act.

He also found the second applicant's specific disclaimer against the first respondent, in respect of any prospective claims arising from the retrenchment process, and his unequivocal acceptance and utilization of his substantial retrenchment benefits, to be inconsistent with the challenge before him.

He further found that both applicants had, by their acceptance without reservation, and further utilization of the terminal benefits, waived their legal right to challenge their respective termination processes.

Lastly, he declined to assume jurisdiction in respect of the Share Subscription Agreement on two bases:

(i) The first was that the first applicant had failed to establish that the agreement was concluded with his employer.

(ii) The second was that it had a reservation arbitration clause.

Thereafter, the labour officer sought confirmation of his draft ruling at the Labour Court on 16 November 2016.

The Labour Court confirmed the ruling on 19 May 2017.

It specifically found, that, by virtue of their seniority in the first respondent, the applicants must have knowingly waived their rights to challenge their respective terminations by the acceptance without reservation, and by the consumption of their terminal packages.

It also confirmed that the labour officer lacked the jurisdiction to deal with the Share Subscription Agreement as it was a contractual and not a labour issue.

Aggrieved by the confirmation, the applicants appealed to this Court in SC566/17 on 4 August 2017.

The subsequent chamber application instituted by the employer, to strike off the appeal under SC743/17, was dismissed. Resultantly, the employer sought to be joined in the appeal on 18 December 2017, in SC1087/17.

The application for joinder was set down together with the appeal hearing.

At the hearing, on 22 February 2018, this Court mero motu raised the propriety of the confirmation proceedings.

The views of this Court must have prevailed, as an order by consent, in which the employer withdrew the joinder application while the applicants withdrew the appeal ensued.

A further attempt to file another notice of appeal at the Labour Court was declined by the Registrar of the Labour Court on the ground that such a notice was, in terms of section 92F of the Labour Act [Chapter 28:01] (the Act), due at the Supreme Court.

Thereafter, the applicants concerted effort to the Registrars of the Labour Court and Supreme Court, in March 2018, for directions on the appropriate procedure to assail the draft ruling went unanswered.

On 25 September 2018, some seven months after the consensual withdrawals, this Court passed judgment in Drum City (Private) Limited v Brenda Garudzo SC57-18.

In that case, the labour officer entered a draft ruling in favour of the employee and against the employer. The labour officer then sought confirmation of the draft ruling before the Labour Court, in terms of section 93(1) as read with section 93(5a) and (5b) of the Labour Act.

She cited the losing employer as the only respondent, purportedly in terms of section 93(5a) of the Labour Act, which required “the employer or any other person against whom the ruling is made” to be the respondent in the confirmation proceedings.

This Court held, that, the legislature could not have intended to exclude a party with a direct and substantial interest in the confirmation proceedings, such as the employee in whose favour the draft ruling pertained, from participating in such proceedings as a co-respondent.

It accordingly allowed the appeal, set aside the confirmation proceedings, and remitted the matter to the Labour Court for the joinder of the employee and a re-hearing of the confirmation.

However, at paragraphs [12] and [13] this Court, en passant, remarked that:

“[12]…, only if the labour officer rules against the employer or any person will he or she be required to take the steps outlined in ss(5a) and (5b). In other words, the provisions do not confer on the Labour Court the jurisdiction to confirm a draft ruling made against an employee (such employee would, it seems, have to pursue other avenues to appeal against the draft ruling).

That this is the case is left in no doubt by the wording of section 93(5)(c)(ii) which specifically provides for a ruling like the one in casu in circumstances where the labour officer finds that the dispute of right in question 'must be resolved against any employer or other person in a specific manner…,.'

[13] Without a clear pronouncement to that effect, there can, in my view, be no doubt that reference to 'any person' in this provision, is not to be read as including the employee in the same dispute. I am satisfied that the import of the provision is to exclude the confirmation and registration of a draft ruling by the labour officer which is made in favour of an employer and against an aggrieved employee. It follows that the Labour Court has no jurisdiction to entertain such a matter, and should, on that basis, properly decline to hear it.”

These remarks were jettisoned by MALABA CJ in the Constitutional Court in Isoquant Investments (Pvt) Ltd t/a ZIMOCO v Memory Darikwa CC06-20…,. He pertinently observed that:

“One cannot interpret the Drum City (Pvt) Ltd case supra as authority for the proposition that it would only be cases where a draft ruling has been made against the employer that confirmation proceedings would ensue. The remarks were made as obiter dictum. The ratio decidendi of that case is that an employee must be joined in confirmation proceedings.”

The remarks in [12] and [13] were clearly obiter dictum because they did not relate to the issue that was before the court, which was whether or not the Labour Court could properly hear and determine an application for confirmation in which the employee was not cited.

The remarks answered the question, which was not before the Supreme Court, whether confirmation proceedings could be lodged in respect of a draft ruling that was made against an employee.

Before the Constitutional Court was a contention that the citation of the employer or other person against whom the draft ruling related, to the exclusion of the employee, infringed the employer's right to equal protection and benefit of the law enshrined in section 56(1) of the Constitution.

The Constitutional Court, inter alia, relied on the ratio decidendi of Drum City (Private) Limited v Brenda Garudzo SC57-18, and held that despite the “statutory ambiguity or vagueness” in the words “employer or other person” in section 93(5a) and (5)(c) of the Labour Act, the employee was a necessary party to the proceedings. Further, that, the architecture of the entire provisions of section 93 of the Labour Act required that a draft ruling be subjected to confirmation proceedings irrespective of whether it was in favour of the employer and against the employee, or in favour of the employee and against the employer.

It was on the basis of the reasoning of the Constitutional Court that the applicants lodged the present application on 13 April 2021.

It was opposed by the first respondent on 20 April 2021.

The applicants filed an answering affidavit on 22 April 2021. Thereafter, the applicants filed their heads on 28 April 2021 while the first respondent did so on 12 May 2021.

THE PRELIMINARY ISSUE

In her written heads of argument, and at the hearing, counsel for the first respondent raised the issue of prescription as a preliminary point.

The first respondent did not plead prescription in its opposing affidavit but raised it for the first time in its written heads of argument.

Counsel for the first respondent contended, that, prescription, being a question of law could be raised at any time in the proceedings.

She argued, that, the applicants right of appeal, and, by extension, the right to sue out the present application constituted a debt as defined in the Prescription Act [Chapter 8:11], which was susceptible to the vagaries of prescription in terms of section 15(d) of the Prescription Act.

It was common cause that the period between the date on which the applicants withdrew their appeal (22 February 2018) and the date on which they filed the present application (12 April 2021) was in excess of three (3) years.

Counsel for the applicants made the contrary contention, that, as the present application was governed by the provisions of Rule 61 as read with Rule 43 of the Supreme Court Rules, it could not be affected by prescription.

He argued, that, the applicants were not claiming the right to appeal in the same way that a litigant would sue for a debt. The right to appeal was in existence but had not been exercised at the stipulated time. The present application, so his argument went, was therefore governed by the requirements for condonation and extension of time within which to appeal and not by the Prescription Act.

The relevant provisions of the Prescription Act that fall to be considered in this application are section 2, 13(1), 15(a)(ii) and (d) and 20(2). They state the following:

“2 Interpretation

In this Act —

'debt' without limiting the meaning of the term, includes anything which may be sued for or claimed by reason of an obligation arising from statute, contract, delict or otherwise.”

“13 Debts to which Part IV applies

(1) This Part shall, save in so far as it is inconsistent with any enactment which —

(a) Provides for a specified period within which —

(i) A claim is to be made; or

(ii) An action is to be instituted; in respect of a debt; or

(b) Imposes conditions on the institution of an action for the recovery of a debt;
apply to any debt arising on or after the 1st January 1976.”

“15 Periods of prescription of debts

The period of prescription of a debt shall be —

(a) Thirty years, in the case of —

(ii) A judgment debt;

(d) Except where any enactment provides otherwise, three years in the case of any other debt.”

“20 Prescription to be raised in pleadings

(2) A party to litigation who invokes prescription shall do so in the relevant documents filed of record in the proceedings:
Provided that a court may allow prescription to be raised at any stage of the proceedings.”

Rule 61 of the Supreme Court Rules prescribes as follows:

“61. Applications for extension of time to appeal

Save where it is expressly, or by necessary implication, prohibited by the enactment concerned, a judge may, if special circumstances are shown by way of an application in writing, condone the late noting of the appeal and extend the time laid down, whether by Rule 60 or by the enactment concerned, for instituting an appeal.”

Sections 13(1) and 15(d) of the Prescription Act subordinates the provisions and application of the Prescription Act to the provisions of any other enactment that specifically deals with this subject matter.

Section 15(d) of the Prescription Act, however, limits the period of prescription to three (3) years from the period that the debt becomes due.

The definition of debt in the Prescription Act is of wide application. It covers the right to sue for or claim emanating from, inter alia, a statute.

The right that arises in these proceedings is the right to claim condonation and extension of time to note an appeal.

The exercise of that right is set out in Rule 61 of the Supreme Court Rules 2018.

In terms of section 3 of the Interpretation Act [Chapter 1:01], a statutory instrument falls into the definition of an enactment.

The Supreme Court Rules 2018 are therefore an enactment, referenced in section 13(1)(b) of the Prescription Act.

To the extent that the right to claim condonation and extension of time is a debt, the right to claim it falls squarely into the ambit of Rule 61 of the Supreme Court Rules.

This Rule “imposes conditions on the institution of an action for the recovery of (the) debt.”

It is clear from the scheme of section 13(1) that the Prescription Act is subordinated to the requirements of Rule 61 of the Supreme Court Rules 2018.

That Rule specifies the period within which the debt may be claimed by use of the phrase “the late noting of the appeal and extend the time laid down…, for instituting an appeal.”

The conditions imposed by the Rule are demonstrable 'special circumstances' and instituting 'an application in writing.'

It is therefore my view, that, Rule 61 of the Supreme Court Rules 2018, is excluded from the application of section 15(d) of the Prescription Act by the provisions of section 13(1)(b) of the Prescription Act.

The preliminary point would fail on this score.

Again, the prescription argument falters on a proper construction of the provisions of section 20(2) of the Prescription Act.

In order to rely on prescription, the first respondent must successfully meet two procedural requirements: It must have pleaded the point in its opposing affidavit, failing which it must have sought the leave of the court to argue the point.

It did not do any of these two things.

The preliminary point is therefore improperly before me and ought to be struck out.

SC30-22 : RIOZIM LTD and RM ENTERPRISES (PVT) LTD vs MARANATHA FERROCHROME (PVT) LTD and JUSTICE MTSHIYA (RTD)
Ruled By: MAVANGIRA JA, UCHENA JA and MATHONSI JA

In the case of Courtesy Connection (Pvt) Ltd and Another v Mupamhadzi 2006 (1) ZLR 479 (H)…, MAKARAU J, commenting on the international pedigree of the Model Law, said:“I am further persuaded to hold as I do by the fact that the Act is of international pedigree, and, certainty and ...

SC39-23 : LINDA KOPECKY and MARK KOPECKY and TSHOLOFELO TRUST and DIANE THORNTON and SLIPPER SHELL INVESTMENTS (PVT) LTD vs CITY OF HARARE and SPIRIT LIFE CHURCH
Ruled By: BHUNU JA, MAKONI JA and MWAYERA JA

This is an appeal against the whole judgment of the Administrative Court handed down by MANDEYA J on 13 May 2022.After hearing submissions from counsel for the parties, the court dismissed the appeal with costs indicating that reasons for the order would be given in due course.These are the reasons.THE ...

This is an appeal against the whole judgment of the Administrative Court handed down by MANDEYA J on 13 May 2022.

After hearing submissions from counsel for the parties, the court dismissed the appeal with costs indicating that reasons for the order would be given in due course.

These are the reasons.

THE FACTS

The second respondent is the owner of a certain property known as No.1 Petersham Road, Malborough, Harare (the “property”). The appellants are residents of the neighbourhood within which the property is located. The first respondent is a Municipality, Local Planning Authority and an administrative body tasked with the mandate of rendering services to the residents of Harare.

The second respondent, on 9 December 2021, made an application to the first respondent for change of use of its property from residential to use as a church.

The application was opposed by the appellants who feared that the use of the property, as a church, would cause noise pollution thereby disturbing the peace and tranquillity of the neighbourhood. They accordingly filed their objections with the first respondent.

After considering the objections from the appellants, the first respondent granted the application subject to certain conditions. These conditions included, inter alia, a prohibition of the use of certain musical instruments in a way that would disturb the peace of other neighbours. The permit stipulated that the second respondent would construct a sound proof auditorium which was to be inspected by the first respondent's Department of Works.

PROCEEDINGS IN THE COURT A QUO

Dissatisfied by the decision of the first respondent, the appellants lodged an appeal in the Administrative Court (“the court a quo”).

They were challenging the decision of the first respondent on the basis, that, the provisions of the Regional Town and Country Planning Act [Chapter 29:12] (“the Act”) were not complied with before the application was granted. They averred, that, the second respondent neglected to provide all the relevant information required in applications of that nature, in particular, they alleged that it neglected to provide information relating to the external area to be covered by the building, the number of floors of the building, the extent and location of parking facilities for motor vehicles.

Furthermore, they queried the citation of the name of the second respondent in the application. They submitted, that, the Regional, Town and Country Planning Act requires that the owner of the property makes the application or it be done with the consent of the owner.

Their argument was that the owner of the property in question is Spirit Life Church International yet the application before the first respondent was launched by Spirit Life Church. It was their case that Spirit Life Church is a non-existent entity.

The appellants further argued, that, all the interested parties were not notified of the application for the change of use of the property. It was their case that the large number of people who would attend church service would result in noise pollution despite the stipulated precaution.

They contended, that, the permit did not make provision for the costs associated with connection of a sewer system for the church. They also argued, that, the application was granted after the time frame within which to consider it had lapsed.

In response to the appeal, the respondents argued, that, due process of the law was followed before the application was granted.

They disputed the allegation that the notice was not given to all the interested parties and that the application was considered out of time.

With regards to the citation of the second respondent, it submitted that the omission of the word 'International' did not render the second respondent non-existent. They argued that there was no confusion as to the identity of the second respondent.

Further, it was argued that the application form contained all the relevant information to enable the first respondent to consider the application.

The court a quo dismissed the appeal.

It found, that, the argument that the application was considered outside the time frame provided for by the law was unmeritorious as the timeframe was extended by a letter written by the second respondent to the first respondent dated 30 November 2021.

It also dismissed the argument that the respondent did not provide all relevant information. The court held that the application form was to be filled to the extent appropriate.

It found that all the interested parties were notified.

The court a quo dismissed the argument that the first respondent would incur additional costs associated with constructing a sewer line for the church on the basis that the appellants had not motivated that argument.

Aggrieved by the decision of the court a quo, the appellants appealed to this Court on the following grounds:

GROUNDS OF APPEAL

1. The court a quo misdirected itself when it determined the matter on the mistaken basis that the party that had applied for the permit had granted an extension of the period during which the first respondent herein was obliged to determine that application.

2. The court a quo erred when it failed to determine that the second respondent's failure to provide the information that was required under sections 10, 11 and 12 of the application form invalidated the application on the basis that it violated the peremptory provisions of section 26(1) of the Regional Town and Country Planning Act.

3. The court a quo erred when it failed to determine that the application for the development permit was invalid for the reason that the purported applicant therein, Spirit Life Church, does not exist.

4. The court a quo erred when it failed to determine that the permit that was purportedly granted to the second respondent was invalid for failing to make a provision for the cost of connecting the proposed development to the sewer line.

5. The court a quo erred when it failed to nullify the permit on the basis that the same had been granted on the basis of falsehoods which were contained in the application.

RELIEF SOUGHT

The appellants pray that the appeal be allowed with costs and the decision of the court a quo be set aside and substituted with a decision setting aside the decision of the first respondent to grant the permit, and, that the first respondent dismisses the application for the permit. They also prayed for costs of suit.

ISSUES FOR DETERMINATION

(1) Whether or not the court a quo erred in failing to find that due process was not followed before the first respondent granted the permit to the second respondent.

(2) Whether or not the incorrect citation of the name of the second respondent, in the application before the first respondent, was fatal.

PROCEEDINGS BEFORE THIS COURT

APPLICATION OF THE LAW TO THE FACTS

(1) Whether or not the court a quo erred in failing to find that due process was not followed before the first respondent granted the permit to the second respondent

In motivating the appeal, counsel for the appellants argued, that, section 26(1) of the Regional, Town and Country Planning Act was not complied with in that the second respondent omitted to fill in Part 2 and 3 of the application form. His argument was that the permit was granted in the absence of all the relevant information required.

He further argued, that, the application was made by a non-existent entity.

His argument was that the Regional Town and Country Planning Act makes it clear that the application ought to be made by the registered owner of the property or with the consent of the owner.

He based his argument on the authority of John v Delta Beverages Ltd SC40-17 wherein it was held, that, the omission of the word “Pvt” was fatal as there was no party called Delta Beverages Ltd.

Further, he submitted that the permit was a nullity as it did not make provision for the costs associated with construction of a sewer system.

In response, counsel for the first respondent argued, that, section 26(1) of the Regional Town and Country Planning Act does not prescribe the information that ought to be contained in the application form. He submitted, that, the form was filled to the satisfaction of the first respondent, hence, the argument that section 26 of the Regional, Town and Country Planning Act was not complied with lacks merit.

It was his argument, that, the application form was complemented by the justification report which contained the full information required, hence, it cannot be said that insufficient information was supplied when the application for the permit was made.

Counsel for the first respondent further argued, that, the decision by the first respondent involves an exercise of discretion. He submitted that this Court should be slow to interfere with an exercise of discretion. His case was that the appellants do not allege that the discretion was exercised injudiciously warranting interference by this Court.

With regards the citation of the second respondent, he argued that the omission of the word 'International' was not fatal. His case was that unlike the omission of the words '(Pvt) Ltd' the omission of the word International does not have legal connotations. He argued that John v Delta Beverages Ltd SC40-17 was distinguishable from this case.

In addition, he submitted that there was already a sewer line in place which the church could connect to.

NON-COMPLIANCE WITH SECTION 26(7) OF THE REGIONAL TOWN AND COUNTRY PLANNING ACT

The appellants first ground of appeal attacks the decision of the court a quo on the basis that it failed to find that the permit was granted after the time limit within which it ought to have been granted had lapsed.

Section 26(7) of the Regional, Town and Country Planning Act provides that:

“If the local planning authority has not determined, in terms of subsection (6), an application in terms of subsection (1) within three months of the date of acknowledgement in terms of subsection (2) of the receipt of the application or any extension of that period granted by the applicant in writing, the application shall be deemed to have been refused by the local planning authority.”..,.

The above section makes it clear, that, if the application is not determined within three months of the date of the receipt of the application, or any extension of the period granted by the applicant, it will lapse.

In casu, the extension was granted by the second respondent, by making the requisite application for extension, on the basis of the pervasive impact of the Covid 19 pandemic. The extension was granted on 30 November 2021 and the permit was granted on 21 December 2021, within a month from the date of extension.

Consequently, it cannot be said that the permit was granted outside the prescribed time-frame. The court a quo was therefore correct to find that the permit was granted within the prescribed timeframe.

Appealed
SC27-22 : ZIMBABWE CRICKET vs HARARE SPORTS CLUB and ADVOCATE DANIEL TIVADAR (ARBITRATOR)
Ruled By: MALABA CJ, GUVAVA JA and MAVANGIRA JA

Article 16 of the UNCITRAL Model Law, First Schedule to the Arbitration Act [Chapter 7.15] allows a party to challenge the jurisdiction of the arbitrator. The arbitrator can make a determination on the challenge.Article 16 of the Model Law reads as follows:“Competence of arbitral tribunal to rule on its jurisdiction(1) ...

View Appeal
HH398-19 : HARARE SPORTS CLUB CASE NO. HC9909/18 and ZIMBABWE CRICKET CASE NO HC10011/18 vs ZIMBABWE CRICKET and HARARE SPORTS CLUB and ARBITRATOR ADVOCATE DANIEL TIVADAR
Ruled By: MATHONSI J

This judgment is a two-in-one.

It disposes of the application in HC9909/18, an application in which Harare Sports Club (the applicant) seeks a registration of an arbitral award issued by an arbitrator and HC10011/18, one in which Zimbabwe Cricket (the respondent) seeks the setting aside of the same arbitral award on the ground that it is contrary to the public policy of Zimbabwe.

Registration of the award is sought by the applicant in terms of Article 35 while the setting aside of the award is sought by the respondent in terms of Article 34 of the Model Law in the Arbitration Act [Chapter 7:15].

The contentious arbitral award was issued in terms of an agreement entered into between the parties on 16 July 1999 supported by an order of this court, per MANGOTA J, handed down on 21 July 2017.

The award itself was delivered on 28 August 2018.

By order of this court, per CHIKOWERO J, granted on 27 March 2019, the two (2) mutually destructive applications were consolidated for set down and determination at the same time.

At the commencement of the hearing, counsel for the parties agreed that upholding one of the applications necessarily brings the other to its knees. In other words, if the court finds that there is no merit in the application to set aside the arbitral award, it should, without further ado, recognize the award and register it for enforcement.

The background is that the applicant is the registered owner of a sporting complex known as Harare Sports Club which it leased to the respondent, then known as Zimbabwe Cricket Union, by Notarial Agreement of Lease signed on 16 July 1999, at a time when the Zimbabwe dollar ruled the roost.

The rental payable was therefore fixed in that currency, at $40,000 per month, and, in terms of clause 3(c) the rent was to be escalated on an annual basis with effect from the agreement's first anniversary at a rate to be agreed between the parties.

In the event of the parties failing to agree, the rent was “to be determined and set by an independent arbitrator appointed by mutual agreement between the parties, whose decision shall be final and binding as between them, based upon any fluctuation in the prime bank rate of interest and the inflation rate prevailing in Zimbabwe at the relevant juncture.”

When the Zimbabwe dollar became moribund, at the beginning of 2009, the parties could not agree on the rent in foreign currency and a dispute arose, which has escalated over the years, resulting in the need to refer the matter to arbitration in terms of clause 3(c) of the agreement.

The parties still could not agree on an arbitrator to resolve the dispute, and, as they bickered endlessly, the applicant brought an application in this court under case no. HC217/17 in which it cited both the respondent and the Commercial Arbitration Centre.

It sought an order authorizing the Commercial Arbitration Centre to appoint an arbitrator to determine the dispute over rent.

The application was made in terms of Article 11(4) of the Model Law which recognizes the right of the parties to agree on a procedure of appointing an arbitrator but provides, that, should they fail to agree, such arbitrator may be appointed by the High Court on request of a party.

The respondent opposed that application arguing, inter alia, that Article 11(4) of the Model Law empowers the High Court itself to appoint an arbitrator and not to delegate the power to appoint to someone else.

The respondent also argued in opposition, that, the dispute over the appropriate rental for the property was governed by the Commercial Rent Regulations and should thus be determined by the Commercial Rent Board.

The respondent further argued, that, clause 3(c) of the parties agreement, which provides for arbitration of a rent dispute, was void by virtue of section 29 of the Commercial Rent Regulations which provides:

“…, any agreement by which any person purports to limit his right to proceed under these Regulations for the determination of a fair rent or the variation of such a determination, or the limit or affect any other rights to which he would be entitled under these Regulations, shall be void.”

The respondent sought to side-foot the imperatives of the agreement it entered into with the applicant and avoid arbitration by hiding behind the Commercial Rent Regulations which would have meant that the dispute would be referred to the Commercial Rent Board.

MANGOTA J, who heard the application, was not persuaded by that argument. Neither was he persuaded by the argument that the High Court could not delegate the power to appoint an arbitrator to the Commercial Arbitration Centre.

In Harare Sports Club v Zimbabwe Cricket & Anor HH471-17 the learned judge upheld the principle of sanctity of contract holding that having crafted for themselves “a clearly defined manner of resolving their disputes” neither of the parties was entitled to renege from the agreement.

On the issue of the power of the court to delegate the authority to appoint an arbitrator, the learned judge ruled that this court has inherent jurisdiction to do so, and, in the exercise of that inherent jurisdiction, he authorized the Commercial Arbitration Centre to do the honours.

It was by virtue of that judgment that Daniel Tivadar was appointed arbitrator, and, having heard the matter, he issued the arbitral award which is the subject of this application.

The case of Harare Sports Club v Zimbabwe Cricket & Anor HH471-17 is significant in two ways:

(i) Firstly, it determined the issue of the arbitrator's jurisdiction to adjudicate over the dispute and clothed him with authority to do so.

(ii) Secondly, it completely resolved the issue of the validity of the arbitration clause, that is, clause 3(c) of the parties agreement, and ruled that it was valid notwithstanding section 29 of the Commercial Rent Regulations.

As shall be seen later, the respondent has not given up on these arguments, which form the main thrust of its challenge to the arbitral award and why it moves that the award be set aside and why it should not are registered for enforcement purposes.

It is significant that the judgment of MANGOTA J in Harare Sports Club v Zimbabwe Cricket & Anor HH471-17 has not been challenged in any way. It has not been appealed and remains extant to this day.

As I have said, the applicant has made an application for the registration of the arbitral award in terms of Article 35 of the Model Law.

The award directs the respondent to pay rent of US$7,500 per month with effect from 28 August 2018 for the Sports Complex; to pay US$88,119=85 together with interest from 6 December 2016; to pay rent of US$3,000 per month from 1 January 2018 to the date of the award; and costs of suit.

In its application for setting aside the award, the respondent states that the arbitral award is against the public policy of Zimbabwe because the arbitrator enforced clause 3(c) of the agreement, which provides for referral of the dispute to arbitration, when that clause is contrary to statute law, namely, section 29 of the Commercial Rent Regulations, which provides that any provision in a lease agreement which limits the rights of the parties in terms of those Regulations shall be void.

Secondly, the arbitrator did not deal with the issue of rent escalation.

As the parties had agreed on an interim rental of US$170 a month, it is that rent which should have been escalated in terms of clause 3(c) of the agreement.

Thirdly, the award unjustly enriches the applicant at the respondent's expense because it came out during the hearing, that, the applicant is renting out a portion of the complex to the Tobacco Industry Cricket Supporters Association for a rental.

Fourthly, the respondent submitted that the arbitrator pitched camp with the applicant because he allowed for expert evidence on what is a fair rent for the complex to be presented which the applicant had not submitted.

I must put the issue of unjust enrichment out of the way straight away.

Counsel for the respondent conceded, that, it is an issue which was not argued before the arbitrator. Counsel for the applicant submitted, that, unjust enrichment is a cause of action which should have been pleaded before the arbitrator. It was not, and, therefore, cannot be relied upon to challenge the award.

I agree.

Raising a defence which was not relied upon before the arbitrator only means that a party is seeking a fresh hearing of the case and not a challenge of the arbitrator's decision - a decision arrived at without consideration of the new defence.

That cannot be allowed. The issue must end there.

Counsel for the applicant took essentially two (2) points in limine, namely;

(i) That, the application for the setting aside of the arbitral award, issued by the arbitrator on 10 April 2018, was filed out of time and should fail for that reason alone.

(ii) Secondly, he submitted that the respondent cannot challenge the arbitrator's ruling on jurisdiction at this stage because the time during which to do so lapsed in terms of Article 16 of the Model Law.

There is merit in both points in limine.

At the commencement of the arbitration process, the respondent objected to the jurisdiction of the arbitrator to arbitrate the dispute. In fact, the lack of jurisdiction was one of seven (7) preliminary objections made on behalf of the respondent at that stage.

In an award dated 10 April 2018, the arbitrator dismissed that preliminary point holding that he had jurisdiction. He proceeded with the arbitration.

An arbitrator is entitled to rule on his or her own jurisdiction in terms of Article 16(1) of the Model Law. That Article further provides in paragraphs (2) and (3):

“(2) A plea that the arbitral tribunal does not have jurisdiction shall be raised not later than the submission of the statement of defence. A party is not precluded from raising such a plea by the fact that he has appointed, or participated in the appointment, of an arbitrator. A plea that the arbitral tribunal is exceeding the scope of its authority shall be raised as soon as the matter alleged to be beyond the scope of its authority is raised during the arbitral proceedings. The arbitral tribunal may, in either case, admit a later plea if it considers the delay justified.

(3) The arbitral tribunal may rule on a plea referred to in paragraph (2) of this Article either as a preliminary question or in an award on the merits.

If the arbitral tribunal rules on such a plea as a preliminary question, any party may request, within thirty days after having received notice of that ruling, the High Court to decide the matter, which decision shall be subject to no appeal; while such request is pending, the arbitral tribunal may continue the arbitral proceedings and make an award.”

The respondent did not challenge the determination on jurisdiction within the period of 30 days provided for in paragraph (2) of Article 16 of the Model Law. In fact, the respondent only mounted the challenge in the main application filed on 30 October 2018 - almost seven (7) months later.

It could not do that without seeking condonation.

SC141-20 : HARARE WETLANDS TRUST vs MINISTER OF ENVIRONMENT, TOURISM & HOSPITALITY and NEWLIFE COVENANT CHURCH and DIRECTOR GENERAL OF THE ENVIRONMENTAL MANAGEMENT AGENCY
Ruled By: CHITAKUNYE AJA

This is a chamber application for condonation of the late noting of appeal and extension of time within which to appeal, purportedly in terms of Rule 38(1) of the Supreme Court Rules 2018.

The brief facts giving rise to this application may be stated as follows:

On 22 September 2016, the first respondent made a decision allowing the second respondent to effect developments on Stand 18962 Boundary Road, Eastlea, Harare, whose location the applicant contends is a wetland.

The decision was made under section 130(3) of the Environmental Management Act [Chapter 20:27].

Section 130 of the Environmental Management Act prescribes a period of 28 days within which an appeal must be filed in these terms:

“(1) Subject to this section, any person who is aggrieved by any decision of any authority in terms of this Act, may, within twenty-eight days after being notified of the decision or action of the authority concerned, appeal in writing to the Minister, submitting with his appeal such fee as may be prescribed:

Provided that such appeal shall not suspend the operation of any order, decision or action of the authority issued by the Authority.

(2) For the purpose of determining an appeal noted in terms of subsection (1), the Minister (if he is not the authority concerned in the appeal) may require the authority to furnish him with the reasons for the decision or action that is the subject of the appeal and a copy of any evidence upon which the reasons are based.

(3) The Minister, after due and expeditious inquiry, may make such order on any appeal noted in terms of subsection (1) as he considers just.

(4) An appeal shall lie to the Administrative Court against any order of the Minister in terms of subsection (3).

(5) An appeal in terms of subsection (4) shall be made in the form and manner and within the period prescribed in the rules of court.

(6) On appeal, in terms of subsection (4), the Administrative Court may confirm, vary, or set aside the decision or action appealed against and may make such order, whether as to costs or otherwise, as the court thinks just.”

The Minister, having made his decision on 22 September 2016, it was apparent that when the applicant sought to appeal against the Minister's decision, in March 2019, it was out of time.

The applicant therefore approached the Administrative Court with an application for condonation of late filing of appeal on 18 March 2019 under Rule 6 of the Administrative Court Rules, SI 122 of 1980.

On 7 June 2019, the applicant's application for condonation of late noting of appeal was dismissed by the Administrative Court for lack of prospects of success.

Aggrieved by that decision, the applicant filed a notice of appeal with this Court on 1 July 2019 and served the same on the other party on 2 July 2019.

The appeal was subsequently set down for hearing on 10 July 2020.

On that date, counsel for the respondent advised counsel for the appellant that the notice of appeal had been filed one day out of time and he was going to raise that as a preliminary point. Counsel for the applicant, without much reflection, conceded and opted to have the matter removed from the roll.

It is in an endeavour to overcome the alleged late filing of the notice of appeal that the applicant has now approached this Court with this application.

In the founding papers, the applicant averred that its notice of appeal was filed one day out of time and proffered reasons for that delay. Those reasons pertained essentially to administrative issues at the law firm of the applicant's legal practitioners.

The applicant asserts, in its founding affidavit, that this is an application for condonation of the applicant's failure to file its notice of appeal against the judgment of the Administrative Court within fifteen days in terms of Rule 38(1)(a) of the Supreme Court Rules 2018 and for an extension of time within which to appeal.

The relief sought was couched as follows:

“It is ordered that:

The failure to file a notice of appeal within fifteen days of the date the judgment appealed against was given, in terms of Rule 38(1)(a) of the Supreme Court Rules 2018, be and is hereby condoned.

The extension of time within which to note an appeal be and is hereby granted. The appeal is to be deemed to have been noted on the date of this order.”

The second respondent opposed the application.

In its opposition, it raised some preliminary points. The preliminary points were that:

(i) The application was not in the form provided for in terms of Practice Direction Number 1 of 2017;

(ii) This is a Rule 43 of the Supreme Court Rules application, yet, the applicant appears to be lodging one in terms of Rule 38 of the Supreme Court Rules; and

(iii) The relief sought is incompetent as Rule 38 of the Supreme Court Rules does not provide for condonation.

The applicant, in its answering affidavit, maintained that the application was compliant with Practice Direction Number 1 of 2017, Form 3. On the appropriate Rule, the applicant agreed that this was an application under Rule 43 of the Supreme Court Rules and that reference to Rule 38 of the Supreme Court Rules was only for the fifteen-day period for lodging an appeal.

On the date of hearing, counsel for the parties maintained their positions on the points in limine.

It was apparent that both counsel were of the view that the appeal in question was under Part VI of the Supreme Court Rules 2018 hence reference to Rule 38 and Rule 43 of the Supreme Court Rules.

It was only after I pointed out that Part VI pertains to civil appeals from the High Court and the appeal in question was from the Administrative Court that counsel for the applicant realized the error and submitted, that, in that case, the application should be under Part VII of the Supreme Court Rules.

She submitted that any reference to Rule 38(1) of the Supreme Court Rules should be substituted with Rule 60(1) of the Supreme Court Rules.

Unfortunately, this belated effort to amend the application, from the bar, could not amend the applicant's founding affidavit in which the applicant was clear on the Rules under which the application was being brought and attempted to provide requirements for condonation under those Rules.

I am of the view, that, where an application is brought under Part VI of the Supreme Court Rules and the founding affidavit is specific in this respect, as in this case, a legal practitioner cannot purport to amend it.

It is also pertinent to note, that, the legal practitioner was not the deponent of the affidavit. She could, therefore, not, in any event, seek to amend an affidavit deposed to by another person and seek to substitute it with provisions under Part VII of the Supreme Court Rules.

It is apparent from a reading of the relevant provisions under those parts that their requirements are not exactly the same.

For instance, Rule 61 of the Supreme Court Rules is to the effect, that, condonation can only be granted if special circumstances are shown by way of application in writing. The applicant must thus address the issue of special circumstances in the application. A Part VI application, on the other hand, does not require the applicant to establish special circumstances (see Rule 43 of the Supreme Court Rules).

The submission by the applicant's counsel, to simply substitute Rule 38(1) with Rule 60(1) of the Supreme Court Rules, is thus untenable.

The application must stand or fall on its founding papers.

Another fatal irregularity with this application is that even if it were to be considered under Part VII, the relief sought is incompetent. Rule 60(1) of the Supreme Court Rules 2018 provides that:

“Subject to the provisions of Rule 61 and the enactment under which the appeal is lodged, a notice of appeal shall be delivered and filed in accordance with provisions of Rule 59 within 15 days of the date of the decision appealed against.”

The aforesaid Rule 61 of the Supreme Court Rules provides that:

“Save where it is expressly, or by necessary implication, prohibited by the enactment concerned, a judge may, if special circumstances are shown by way of application in writing, condone the late noting of the appeal and extend the time laid down, whether by Rule 60 or by the enactment concerned, for instituting an appeal.”

It is apparent that the 15 days period, and extension thereof, is subject to the provisions of the enactment in question. It is only where the enactment permits such extension that this Court may proceed to grant condonation and extension of the period.

In casu, this was an appeal from the Administrative Court and thus the question is: does the relevant enactment provide for extension of time within which to appeal?

Section 20 of the Administrative Court Act, which provides for any aggrieved party to appeal to this Court, states that:

“(1) Subject to subsection (2) and except as otherwise provided in any other enactment, any person who is dissatisfied with any decision of the Court may lodge an appeal with the Supreme Court within the period of twenty-one days immediately following the announcement by the Court of such decision.”

The section, or any part of the Administrative Court Act, does not in any way give leeway for the extension of that period of 21 days. Once an aggrieved party decides to appeal, such appeal must be lodged within 21 days.

In Shumba v Chairman, ZEC and Another HH116-08; 2008 (2) ZLR 370 (H)…, the court aptly noted in paragraph 23 the following on the use of the term 'within' before a period:

“The thirty-day period is peremptory because of the use of the word 'within' before the stipulated period. In Black's Law Dictionary, 5th Edition, the word 'within' when used relative to time has been defined, variously, as meaning 'time before, at or before, at the end of, not later than.' It is clear from the above definitions that the period of thirty days cannot be exceeded.”

Further, in commenting on the application to condone non-compliance with the stated 30-day period, the court aptly opined in paragraph 26, that:

“The applicant is asking me to condone an act provided for in an Act of Parliament. I have no such powers.

It is trite that Rules of this court cannot interfere or derogate from a specific provision of the Act. Rules are subordinate to an enactment.

To ask the court to condone a period provided for in an enactment, as urged by the applicant, would be to usurp the functions of the legislature, by purporting to amend a specific provision, which this or any other court cannot do: see Registrar General of Elections v Combined Harare Residents Association & Anor SC07-02 at p6 of the cyclostyled judgment.”

It is clear, therefore, that this Court has no jurisdiction to entertain an application for condonation for failure to comply with the period provided in section 20 of the Administrative Court Act.

That section has no provision for condonation and for extension of the period provided within which to appeal, and so, by necessary implication, Parliament did not intend that such period be extended.

Accordingly, the relief sought is incompetent.

SC148-21 : NESTLE ZIMBABWE (PVT) LTD vs ZIMBABWE REVENUE AUTHORITY
Ruled By: GUVAVA JA, MAVANGIRA JA and MAKONI JA

This is an appeal against part of the judgment of the Special Court for Income Tax Appeals, handed down on 25 March 2020, which dismissed the appellant's appeal filed in terms of section 65 of the Income Tax Act [Chapter 23:06] (“the Act”) against the decision of the respondent.

The respondent had dismissed certain aspects of an objection filed by the appellant against various amended assessments that the respondent had issued.

FACTUAL BACKGROUND

The respondent, which is the administrative body tasked with assessment, collection, and enforcement of the payment of taxes leviable under the Income Tax Act, carried out an investigation and audit into the appellant's tax compliance for annual income tax assessment returns for the period 2009 to 2013.

The investigation constituted a review into the appellant's submitted tax self-assessment returns.

Several documents were submitted to the respondent, and a number of meetings were held between the parties. During the scope of the review, the respondent noted numerous anomalies within the tax self-assessment returns submitted by the appellant.

Thereafter, on 1 June 2016, the respondent issued five amended tax assessments for the 2009 to 2013 tax years on all the disputed issues claiming an aggregate amount of US$4,905,776=34.

The appellant proceeded to note its objection to the amended income tax assessments in terms of section 62 of the Income Tax Act. The appellant's objections centred on prescription regarding the 2009 income tax year, written-off bad debts, disallowed excess capital, accrued expenses, management fees, and excess royalty payments on brands.

On 26 September 2016, the Commissioner determined the objections lodged by the appellant.

The Commissioner held, that, he was entitled to issue amended tax assessments with regards to the tax year 2009 as a result of the various misrepresentations arising from excess capital allowances, unrealised exchange losses, and bad debts that were deducted from the taxable income and were unsubstantiated.

In respect of the other years, the Commissioner largely disallowed the objections lodged by the appellant except excess royalty on grossed up payments due to adjustments on withholding tax which was paid late.

The respondent ruled, that, the fifty per centum penalty on unpaid principal tax would remain in force to deter non-compliance.

The appellant, dissatisfied with the determination by the Commissioner, appealed to the court a quo.

At the pre-hearing meeting, the parties settled ten issues to be determined by the court a quo. During the hearing, the appellant called evidence of two tax experts and produced two sets of documentary exhibits.

The respondent did not call oral evidence but relied on the pleadings filed of record.

The court a quo made the following findings in respect of the issues appealed against. It found that —

(i) The respondent was entitled to re-open the 2009 tax assessment, after six years, in terms of section 47(1)(ii) of the Income Tax Act in light of the misrepresentation by the appellant of its tax affairs in its tax returns;

(ii) The respondent correctly disallowed capital allowances for mark-ups on capital assets acquired by the appellant's related company exceeding the perimeter of the margins used by the appellant's Group as these were in excess of the unconditional legal obligation to pay the related company;

(iii) The appellant had failed to prove that the basis of the deductions on management fees were equivalent to the cost mark-up formula provided in the appellant's Management Services Agreement and that the respondent had correctly disallowed the deductions in respect of the management fees relating to the appellant's related company;

(iv) The appellant could not claim deductions in respect of brands as this expenditure was indivisible from expenditure in respect of intellectual property.

The appellant, aggrieved by the decision of the court a quo, noted an appeal to this Court against part of the judgment on the following grounds:

GROUNDS OF APPEAL

“1. The learned President erred as a matter of law in determining that the word 'misrepresentation' as used in proviso (ii) of section 47(1) of the Income Tax Act [Chapter 23:06] fell to be interpreted as any error made by the taxpayer in submitting a return, regardless of the state of mind of the taxpayer.

2. The learned President erred on the facts in finding that the appellant had misrepresented any facts to the respondent when it filed its self–assessment for the tax year ending 31 December 2009.

3.The learned President accordingly erred in finding that the respondent was entitled, as a matter of law, to issue an amended assessment in respect of the tax year ending 31 December 2009.

4. The learned President erred as a matter of law and fact in holding, that, the appellant was only entitled to a deduction, in terms of section 15 of the Income Tax Act, in respect of charges raised by and paid to a related party on the acquisition of capital goods on the basis of an unconditional legal obligation to pay rather than on the basis of expenditure actually incurred in the tax year in which the deduction was made, for the purpose of trade and producing income, and erred in imposing a ceiling of Swiss francs 8,000 on such expenditure.

5.The learned President erred in fact by rejecting the evidence of the appellant as to the amount it had actually expended in each of the tax years in question in respect of management fees, which, because of exchange control requirements, had been capped at 2% of its annual turnover, and which amount had actually been paid to its regional management service company in the Republic of Kenya, and was thus expenditure actually incurred for the purposes of its business and in the production of income, and, as such, deductible in terms of the legislation.

6.The learned President erred in fact and as a matter of law in holding, that, the appellant was not entitled to claim a deduction in terms of section 15 of the Income Tax Act in respect of expenses incurred on branding, and disregarded the fact that those expenses were actually incurred for the purposes of its trade or the production of income.

7.The learned President erred both as a matter of law and as a matter of fact in holding that tax was payable on expenditure incurred in respect of branding yet having agreed that the expenditure was deductible for corporate income tax, being indivisible from expenditure incurred in the use and application of other intellectual property rights.”

RELIEF SOUGHT

The appellant prays that the appeal be allowed and that an order for costs be made in its favour in terms of section 15(2)(bb) of the Income Tax Act [Chapter 23:06], and that paragraph 2 of the order of the Special Court for Income Tax Appeal be altered as follows:

(i) By the deletion from sub–paragraph (c) thereof of US$32,094=23 to the 2009 tax year;

(ii) By the deletion from sub–paragraph (d) thereof of US$303,379 to the 2009 tax year;

(iii) By the deletion therefrom of sub–paragraphs (e), (f), and (h);

(iv) By the insertion at the end of sub–paragraph (i) of the words 'other than the 2009 tax year'.

SUBMISSIONS BEFORE THIS COURT

At the hearing of the appeal, counsel for the appellant, took two preliminary points which were not raised in the appellant's Heads of Arguments:

(i) His first point was that a quo the respondent did not lead any evidence.

It was only the appellant that led evidence.

He stated that this has consequences in that in the absence of evidence led by the taxman, the prima facie case led by the appellant coalesces into a conclusive case in its favour. For authority he relied on CIR v Middleman 1991 (1) SA 200 (C) and A & Anor v Commissioner of Taxes 2018 ZATC 10.

He submitted, that, in respect of issues relating to management fees, handling fees, and branding fees, it is only the taxpayer which established a case before the court a quo.

(ii) Counsel for the appellant's second point was that the assessments before the court a quo, for tax years 2010 to 2013, did not comply with the requirements of section 2 of the Income Tax Act.

He submitted, that, in effect, there were no assessments. For authority, he relied on Barclays Bank of Zimbabwe v Zimbabwe Revenue Authority HH162-04; 2004 (2) ZLR 151 (H).

The assessment for the year 2009 would otherwise have been an assessment as contemplated in terms of section 2 of the Income Tax Act but negated its validity upon being made “subject to an audit”.

It was his submission, that, the position of the law is that if a taxman is adjusting an assessment, he cannot make that assessment subject to an audit because it is a correction of an assessment already accepted.

On the merits, counsel for the appellant contended, that, the purported revised assessments did not contain a statement stating the respondent's reasons for undertaking the re-assessment, which is contrary to the law.

He submitted that section 37A(13) of the Income Tax Act provides, that, if the Commissioner intends to re-visit an assessment he is required to include, with the re-assessment, a statement of reasons why he considers it necessary to make such an assessment. There were no such statements in respect of all the assessments in issue that were before the court a quo.

Where the taxman intends to re-visit a prescribed assessment, he must be satisfied that there has been fraud, wilful non-disclosure, or misrepresentation.

The existence of the fraud, wilful non-disclosure, or fraud must be communicated in the statement.

There is no such statement regarding the 2009 assessment. The factors that must be considered before a prescribed assessment can be re-assessed do not exist. For that reason, the 2009 assessment must be withdrawn.

Counsel for the appellant further submitted, that, misrepresentation, in terms of the Income Tax Act, must be construed with regard to the taxpayer's intentions or state of mind. He contended, that, any contrary interpretation voids the statutory immunity provided in section 47 of the Income Tax Act.

Regarding management fees, counsel for the appellant submitted, that, the taxman does not determine the necessity of expenditure or regulate how the taxpayer runs his affairs. He submitted, that, once expenditure has been incurred in the production of income, it is deductible. He also submitted, that, on branding fees, the appellant led evidence on payments made for technical assistance which was not rebutted.

Per contra, counsel for the respondent submitted, that, in terms of section 63 of the Income Tax Act, the onus to prove that one is not liable to tax lies with the taxpayer.

Counsel submitted, that, detailed assessments were provided on p98 of the record which negated the preliminary points raised by the appellant.

On the merits, counsel for the respondent submitted, that, misrepresentation ought to be construed on an objective basis that does not delve into the intentions of the taxpayer. He also submitted, that, the respondent failed to show how the management fees were expended in the production of income. In respect of branding fees, he submitted that intellectual property expenditure could not be separated from branding. Hence, the court a quo was justified in disallowing the deduction.

On the need for a statement in terms of section 37A(13) of the Income Tax Act, counsel for the respondent submitted the statements were provided to the appellant, although they do not appear in the record.

This is explained by the fact, that, the appellant did not raise these issues in its objection and in the court a quo.

There was, however, an extensive exchange of documents between the parties in respect of the tax period between 2009 and 2013. There is a document on p123 of the record that reflects that the appellant was aware that the assessment of 2009 is being re-opened as it is the only year affected by prescription.

ISSUES FOR DETERMINATION

1. Whether the assessments that were before the court a quo complied with the provisions of section 2 of the Income Tax Act?

2. What is the effect of failure by the respondent to lead evidence before the court a quo?

3. Whether or not the court a quo erred in its interpretation of 'misrepresentation' and finding that the respondent had a legal basis to issue an amended assessment in respect of the tax year 2009?

4. Whether or not the appellant was entitled to a capital expenditure allowance in respect of handling fees paid in the acquisition of capital assets?

5. Whether or not the appellant was entitled to a deduction based on management fees?

6.Whether or not the appellant could claim deductions for branding costs as expenditure distinct from that incurred in the use and application of other intellectual property rights in the production of income?

APPLICATION OF THE LAW TO THE FACTS

I will start by dealing with the points in limine raised by counsel for the appellant before delving into the merits of the appeal. In doing so, I will deal with the second point in limine first as it might dispose of the appeal.

Counsel for the appellant's second point in limine was that there were no assessments a quo as is defined in section 2 of the Income Tax Act and as laid down in Barclays Bank of Zimbabwe v Zimbabwe Revenue Authority HH162-04; 2004 (2) ZLR 151 (H).

He submitted, that, the assessment for the year 2009 could have passed as an assessment were it not for the remark that 'the assessment is subject to an audit'. This also applies to the assessments for the year 2010 and 2011. They negate their validity by the endorsement 'subject to an audit.'

In respect of the years 2012 and 2013, the purported assessments do not meet the requirements of section 2 of the Income Tax Act at all. Those kind of documents are not known in law.

He further contended, that, our tax system is based on self-assessment. If the taxman accepts the self-assessment in terms of section 37A of the Income Tax Act, it becomes his assessment. If he raises queries or adjusts that assessment, what he then issues is a final assessment. It cannot be an estimate or subject to an audit. The assessments in issue are therefore invalid on that basis.

Counsel for the respondent started by pointing out that the issues being raised by counsel for the appellant were being raised for the first time in this court. They were not raised in the objection to the Commissioner neither were they raised in the court a quo.

He however submitted, that, for a taxpayer to object in terms of section 62 of the Income Tax Act and to appeal in terms of section 65 of the Income Tax Act, there would have to be an assessment. Where there is no assessment, there can be no valid objection or appeal.

If the appellant felt that there were no valid assessments, it should have approached the High Court seeking a declaratur to that effect.

On being engaged by the court in respect of the purported assessments for 2012 and 2013, he conceded that the documents do not meet the requirements of section 2 of the Income Tax Act.

He, however, sought to explain that there is an endorsement that “a detailed assessment can be made available on request'. He then directed the court to p98 for the detailed statement of the taxable income, deductions, and the tax payable.

On being further engaged on what the import of the term “this assessment is subject to audit” was, he submitted that it meant that the assessment was as a result of an audit that was done and not that it is going to be the subject of a further audit.

I must observe that the points raised by counsel for the appellant were points of law which can be raised at any time. It is trite and requires no authority that a point of law can be raised at any time provided that there is no prejudice to the other party. Counsel for the respondent did not seriously contest the point. He also did not argue that the respondent would be prejudiced in any way.

As was stated in Barclays Bank of Zimbabwe v Zimbabwe Revenue Authority HH162-04; 2004 (2) ZLR 151 (H), an assessment must contain the taxable income and the credits to which a person is entitled or the determination of an assessed loss ranking for deduction.

Going by the above definition, the purported assessments for the years 2012 and 2013 fall far short of being assessments as defined in section 2 of the Income Tax Act. The document on p98 titled 'Income Tax Computation' did not, and could not, save the respondent. It is a detailed assessment covering the period 2009 to 2013.

There is no provision in the Income Tax Act for such an omnibus assessment.

Counsel for the respondent conceded the point in respect of the assessments for the years 2012 and 2013.

The concession is properly made.

The assessments for the years 2009, 2010 and 2011 would have met the requirements of the Income Tax Act were it not for the endorsement that they were subject to an audit.

Counsel for the respondent struggled when asked to explain the import of the endorsement “subject to audit.”

Counsel for the appellant's point, which I agree with, is that when the respondent issues an assessment, after having considered a taxman's self-assessment, that resultant assessment is final. It cannot be subject to an audit.

There is no provision for such an assessment in terms of section 2 of the Income Tax Act.

The only endorsements permitted on an assessment are found in section 51 of the Income Tax Act, such as notice of the period within which to file an objection.

The rationale for the Commissioner to comply with the Income Tax Act, regarding assessments, was given in Barclays Bank of Zimbabwe v Zimbabwe Revenue Authority HH162-04; 2004 (2) ZLR 151 (H)…, as follows:

“It is imperative that an assessment contains the requirements of the Act, as the administrative functions bestowed by the Act on the Commissioner amount to a determination which is executable through a garnishee. He is also bestowed with the power to hear any objections, in terms of the assessment made, after which he can insist on payment of the tax pending the determination of any dispute arising from an assessment. The legislature could only have envisaged granting the Commissioner power to execute pending determination in circumstances where the taxpayer has been clearly advised of the basis for the assessment.

In addition, section 51 requires the taxpayer to be given due notice of the assessment and the tax payable in the manner stipulated in that section. There should be no doubt as to whether the document sent by the Commissioner to a tax payer is an assessment in view of the taxpayer's right to object within 30 days.

Annexure A is not headed 'Notice of Assessment' nor 'Assessment' and does not give 30 days notice for objection as is required by the Act. Further, the document cannot be said to constitute an assessment as it falls short of the definition of assessment in terms of section 2 of the Act.

In the process of serving the taxpayer with an assessment and hearing objection, the Commissioner should comply with the provisions of the Act as his administrative acts have far reaching consequences of a garnishee on the taxpayer.”

Although the above remarks were made in a case where the Commissioner had issued a garnishee order to a disputed assessment, they apply with equal force in casu.

There should never be any doubt as to whether what the Commissioner would have issued is an assessment or not, as any default by the taxpayer can be met with the administrative powers bestowed on the Commissioner in the Income Tax Act.

In view of the above, the assessments are null and void as they were issued contrary to the requirements of the Income Tax Act. They were a nullity and cannot create any obligation to pay tax.

What this means is that there were no proper assessments for the court a quo to relate to. Consequently, there is no proper appeal before this court.

Counsel for the appellant's second point in limine has merit and is upheld.

Having made the above findings, it will not be necessary for me to deal with the first point in limine raised by counsel for the appellant and the merits of the matter.

This is an appropriate case to invoke the provisions of section 25(2) of the Supreme Court Act [Chapter 7:13] to set aside the proceedings of the court a quo as they are irregular. Costs will follow the cause.

Accordingly, I will make the following order:

1. In terms of the powers set out in section 25(2) of the Supreme Court Act, the proceedings of the court a quo, in ITC 9/2016, be and are hereby set aside.

2. The respondent is to pay the appellant's costs in terms of section 15(2)(bb) of the Income Tax Act [Chapter 23:06].

SC32-15 : BINDURA MUNICIPALITY vs PAISON MUGOGO
Ruled By: GUVAVA JA

BACKGROUND

The appeal relating to this matter was set down before the Supreme Court on 5 September 2014. It was struck off the roll because it did not comply with Rule 4(2) and Rule 7(b) of the Supreme Court (Miscellaneous Appeals and References) Rules 1975.

Firstly, the notice of appeal reflected the wrong date on which judgment was delivered by the Labour Court. It was quite clear ex facie the judgment that it had been hand down on 29 June 2012. However, the Notice of Appeal stated that it was handed down on 29 May 2012.

Secondly, a copy of the Notice of Appeal was served on the Registrar of the Labour Court contrary to the order by GOWORA JA.

The order granted by GOWORA JA stated as follows:

“1. Leave be and is hereby granted to the applicant to note an appeal against the judgment of the Labour Court No. LC/H/196/2012 handed down on 29 June 2012.

2. The Notice of Appeal shall be noted within fourteen (14) days of the date of this order.

3. There be no order as to costs.”

It was thus incumbent upon the applicant to serve the notice of appeal with the Registrar of the Labour Court within fourteen days of the grant of the order.

The order was granted on 28 January 2014. It was only filed with the Registrar of the Labour Court on 28 February 2014 - a month later.

WHETHER THE APPLICATION IS PROPER

Following the decision to strike off the appeal, the applicant filed this chamber application seeking to reinstate the appeal.

The applicant stated, in his founding affidavit, that, the application was being made in terms of the Supreme Court (Miscellaneous Appeals and References) Rules 1975 as read with Practice Directive 3/13.

In support of the application, the applicant's legal practitioner conceded, that, there was an error on the Notice of Appeal since the date the judgment had been delivered was 29 June 2012 and not 29 May 2012. He however sought to explain the error by stating, that, it was a genuine mistake on the part of the legal practitioner dealing with the matter.

He further explained, that, the failure to serve the Registrar of the Labour Court with the notice of appeal within the time specified in the order was due to the fact, that, the Labour Court registrar had refused to issue out any court process in the absence of the record of proceedings.

The notice of appeal was only accepted on 28 February 2014 - after the record had been located.

He therefore submitted, that, the delay in the service of the notice of appeal to the Labour Court was occasioned by circumstances beyond the control of the applicant.

It was his submission, that, since no prejudice had been occasioned to the respondent by his failure to comply with the rules of the court, the application should be granted.

It however seems to me, that, the applicant has filed a wrong application.

Where a matter has been struck off the roll because it has failed to comply with the rules of court, one cannot simply apply for reinstatement of the appeal as such an appeal is a nullity.

This position has been stated in a number of decisions of this Court.

The leading case in this regard is the case of Jensen v Acavalos 1993 (1) ZLR 216 (S) where KORSAH JA stated as follows…,.:

“…, a Notice of Appeal which does not comply with the rules is fatally defective and invalid. That is to say, it is a nullity. It is not only bad but incurably bad, and, unless the court is prepared to grant an application for condonation of the defect and to allow a proper notice of appeal to be filed, it must be struck off the roll…,.”

INTERPRETATION OF PRACTICE DIRECTION 3/13

It was the applicant's contention, that, the application was being brought in terms of paragraph 5 of Practice Direction 3 of 2013.

In my view, it is necessary, for the sake of completeness, that I cite the relevant portion of the Practice Direction which relates to matters which have been struck off the roll:

“Struck off the Roll

3. The term shall be used to effectively dispose of matters which are fatally defective and should not have been enrolled in that form in the first place.

4. In accordance with the decision in Matanhire v BP & Shell Marketing Services (Pvt) Ltd 2004 (2) ZLA 147 (S) and S v Ncube 1990 (2) ZLR 303 (SC), if a Court issues an order that a matter is struck off the roll, the effect is that such a matter is no longer before the Court.

5. Where a matter has been struck off the roll for failure by a party to abide by the Rules of the Court, the party will have thirty (30) days within which to rectify the defect, failing which the matter will be deemed to have been abandoned.

Provided that a judge may, on application, and for good cause shown, reinstate the matter on such terms as he deems fit.”…,.

It seems to me, that, a proper interpretation of paragraph 5 of Practice Direction 3/13 is that the applicant must, within thirty days, rectify the defect by applying for condonation for the late noting of appeal and an extension of time within which he should comply with the rules.

He may not do so after the window period which he has been given to rectify the defect as the matter will be deemed to have been abandoned.

It seems to me, that, the restriction on the period within which to rectify the defect was included in the Practice Directive in order to manage cases which would have been struck off the roll so that the registry would not be cluttered with “dead” files.

Thus, a litigant who wished to pursue his matter was granted a limited time within which to apply to cure the defect failing which the matter would be deemed abandoned.

In this case, the applicant correctly filed an application within the prescribed period of thirty days.

HH497-17 : RICHARD MATTHEWS vs CASTER INTERNATIONAL (PVT) LTD
Ruled By: CHATUKUTA J

The applicant is an ex-employee of the respondent.

A dispute between the applicant and the respondent was referred for arbitration. On 28 June 2012, Justice Smith issued an arbitral award in favour of the applicant. The award set the amounts due to the applicant as salary for August 2007 and severance package in the sum of US$7,000 and US$42,000 respectively.

The applicant was also awarded cash-in-lieu of leave. However, the amount due was not quantified in the award.

The applicant filed an application, in 2012, under case number HC11614/12 seeking the registration of the arbitral award.

The application was dismissed with costs, on 19 August 2015, on the basis that the arbitral award, in so far as it related to payment of cash-in-lieu of leave, was not sounding in money.

The award was not severable, and, therefore, not capable of registration.

The applicant referred the matter to Justice Smith for quantification of the award. On 13 October 2015, the arbitrator amended the award with the addition of the amount due as cash-in-lieu of leave in the sum of US$26,329=55.

This is an application for the registration of the amended award. The draft order reads:

“1. The arbitral award issued on 28 June 2012 by Arbitrator L G Smith, and as amended by his award of 13 October 2015, be and is hereby registered.

2. The Respondent shall pay net of PAYE the following amounts:

(a) US$7,000 being Applicant's salary for August 2007.

(b) US$42,000

(c) US$26,329=55 being cash in lieu of leave.

3. The Respondent shall pay interest on the above amounts from the date of registration of the award to the date of full payment.

4. The Respondent shall pay the costs of this application.”

The applicant contended that P.A.Y.E was required to be deducted from the award as the award arose from his employment with the respondent. The amounts awarded were therefore deemed to exclude P.A.Y.E.

The applicant abandoned this argument and sought an amendment to the draft order with the deletion of any reference to P.A.Y.E in paragraph 2 of the draft.

The abandonment was, in my view, proper as the award issued by the arbitrator did not include any reference to P.A.Y.E. Consequently, it serves no purpose to consider the arguments by both parties on the issue.

After the abandonment of the question of P.A.Y.E, the application was opposed on the ground that it was contrary to public policy as envisaged in Article 36 of the Model Law in the Arbitration Act [Chapter 7:15].

The respondent submitted, firstly, that, the arbitrator did not have the jurisdiction to render the arbitral award.

In terms of Article 33 of the Model Law, he could only interfere with his award upon request by either party, within 30 days of the issuance of the order, failing which he could only do so with the consent of both parties.

The award was handed down on 28 June 2012. The amendment was effected on 15 October 2015 - over three years later. The respondent did not give its consent to the amendment.

The arbitrator was functus officio.

The award was therefore a nullity and not registrable.

Secondly, it was not clear which order the applicant sought to be registered, the award issued on 28 June 2012 or the amendment of 15 October 2015.

Thirdly, the claim for cash in lieu of leave had prescribed, and that the award, not being an order of court, and having been issued on 28 June 2012, had superannuated.

In response, the applicant submitted that he had met the requirements for registration of the award. The application before the arbitrator was not for the amendment or correction of the award issued on 28 June 2012.

The arbitrator therefore had jurisdiction to proceed with the quantification. It was for quantification following the decision by MAFUSIRE J in case number HC11614/12 that the award was incomplete.

The amount due as cash-in-lieu of leave was common cause as it would be derived from a pay slip issued to the applicant by the respondent.

The award that was sought to be registered is apparent. It was the award issued on 28 June 2012 as quantified on 13 October 2015 following the decision by MAFUSIRE J in HC11614/12.

The claim had not prescribed as a determination had been made by the arbitrator and the applicant had been awarded cash in lieu of leave. The entitlement of the applicant to cash-in-lieu of leave had been asserted and determined. Only the quantification thereof remained, which quantification was supposed to be common cause.

There is a prethora of decisions of this court that deal with the requirements for registration of an arbitral award as set out in section 98(4) of the Labour Court Act [Chapter 28:01]: see Greenland v Zimchre HH93-13; Tapera v Fieldspark (Pvt) Ltd HH102-13; NSSA v Mandiringa HH98-05; Mvududu v Agricultural and Development Authority (ARDA) 2011 (2) ZLR 449; Samudzimu v Dairibord Holdings Ltd 2010 (2) ZLR 357.

In Mvududu v Agricultural and Development Authority (ARDA) 2011 (2) ZLR 449 BHUNU J..., remarked at 451F–452B that:

“The respondent is resisting the registration on the basis, that, the applicant cannot seek to enforce a judgment he has appealed against. There are two cardinal issues for determination in this application. The first issue is whether the applicant is automatically, as a matter of right, entitled to register an award upon satisfying the conditions specified in section 98(14) of the Act. In order to qualify for registration, all what an applicant has to do is to satisfy the court that:

(a) He is a party to the arbitral proceedings.

(b) The award relates to him.

(c) The copy he is presenting for registration has been duly certified by the arbitrator in terms of subsection (13).

Once the applicant has satisfied the above three requirements, he is entitled, as of right, to register the arbitral award in terms of section 98(14) as read with subsection (13).

Any opposition to registration is therefore limited to showing, that, the applicant has not satisfied any one or more of the three prescribed requirements for registration.”

In fact, the respondent referred with approval, in paragraph 22 of its supplementary heads of argument, to the following remarks of CHIWESHE JP in Samudzimu v Dairibord Holdings Ltd 2010 (2) ZLR 357, at 360D-E, that:

“Accordingly, for as long as the arbitral award has not been suspended or set aside, on review or appeal, in terms of the Labour Act, there is no basis upon which this court may decline registration of the same.”

It is my view, that, the three requirements for registration, with an additional requirement that the award must be extant, have been met in the present application.

It is not in issue that all the issues raised by the respondent in the present application are issues that it raised before the arbitrator.

The arbitrator deliberated on the issues and made a finding that they all lacked merit.

The course of action available to the respondent ought to have been to challenge the decision of the arbitrator on appeal.

It failed to do so, and, it is an abuse of court process for the applicant to circumvent that process by raising the same issues through the back door.

Both parties rightly submitted, that, in the event that this court was to decline to register the award, the same would remain extant.

The respondent would still be required to comply with the award....,.

The question of cash-in lieu of leave has been resolved by the quantification by the arbitrator.

The respondent has not appealed against the award or sought its setting aside.

HH707-15 : RICHARD MATTHEWS vs CRASTER INTERNATIONAL (PRIVATE) LIMITED
Ruled By: MAFUSIRE J

Article 33 of the Arbitration Act provides for the correction and interpretation of an award within thirty days of the receipt of the award, or within a longer period as may be agreed upon by the parties.

SC12-18 : UNIVERSITY OF ZIMBABWE vs KWANELE JIRIRA and LOUIS MASUKO
Ruled By: BHUNU JA

This is a chamber application for leave to appeal against the judgment of the Labour Court in terms of Rule 5(2) of the Supreme Court (Miscellaneous Appeals and References) Rules 1975.

The applicant is a tertiary educational institution incorporated as such under the University of Zimbabwe Act [Chapter 25:16].

Both respondents are its former workers who were employed as research fellows at its Institute of Development Studies. They were dismissed from employment by the Disciplinary Tribunal on allegations of misconduct. They are alleged to have wilfully refused to obey a lawful order to be re-deployed from the Institute of Development Studies offices to the University campus.

Aggrieved by their dismissal from employment, they approached the Labour Officer complaining of unfair dismissal. The Labour Officer, in turn, referred their grievance for arbitration. The arbitrator ruled in their favour and made an award of reinstatement, and, in the alternative, damages in lieu of reinstatement.

Dissatisfied with the arbitration award, the applicant appealed to the Labour Court without success. Unhappy with the decision of the Labour Court, the applicant sought leave to appeal to this court. On 5 April 2013, the Labour Court granted the applicant leave to appeal to this Court.

The applicant did not, however, reinstate the respondent as ordered by both the arbitrator and the Labour Court. As the result, the respondents approached the arbitrator for quantification of damages in lieu of reinstatement. The arbitrator assessed damages in the amounts of US$156,852=13 and US$134,362 respectively.

Aggrieved by the quantification award, the applicant, once again, appealed against that award to the Labour Court.

Despite the appeal, the respondents proceeded to register the award with the High Court for enforcement. A writ of execution and attachment of the applicant's property was subsequently issued.

The applicant made an urgent application for stay of execution without success. It then successfully appealed to this court for stay of execution pending appeal under judgment number SC06-13.

The applicant's appeal against the quantification award was subsequently dismissed by the Labour Court.

Its complaint is that CHIVIZHE J granted the application for dismissal of the appeal without a formal hearing of the appeal.

They allege, that, despite numerous requests, the honourable judge failed to provide the applicant with reasons for judgment, resulting in the lapse of time stipulated of the intended appeal.

It therefore became necessary to apply for condonation and extension of time to file an application for leave to apply to this Court.

Both parties filed heads of argument.

The applicant now alleges, that, while they were waiting for the set down date of hearing they were surprised to receive a written judgment by HOVE J dismissing the application for leave to appeal to this Court.

It is not clear to me, but, it appears that the matter was subsequently placed before the same judge who then properly heard the application and dismissed the applicant's claim under judgment LCH/H/472/2011 at page 56 of the record of proceedings.

It is this judgment which prompted this application.

In terms section 92F(3) of the Labour Act [Chapter 28:01], where a judge of the Labour Court refuses to grant leave to appeal, the applicant may seek leave from a judge of this Court.

When a judge of the Supreme Court sits in chambers to decide the application for leave to appeal, he does not treat the application as an appeal against the refusal to grant leave by the court a quo. He simply decides the matter on the merits as if it was a fresh application before him/her.

For that reason, while he may consider the criticisms levelled against the judge in the court a quo, these are not overriding considerations, because, he makes his own independent, fresh determination on the basis of the papers and arguments placed before him/her.

I now turn to consider the application for leave to appeal to this Court on the merits.

An application for leave to appeal to this Court is firmly grounded on the applicant's prospects of success on appeal.

In terms of section 92F of the Labour Act, appeals from the Labour Court only lie to this Court on a point of law.

In that regard, the first question for consideration is whether the applicant's grounds of appeal raise a point of law.

The grounds of appeal essentially raises the question whether the applicant was subjected to a fair trial when CHIVIZHE J issued an order, under case number LC/H/145/11, without giving reasons for the order which it has branded a judgment.

The order is dated 31 October 2012 and it reads:

“IN THE LABOUR COURT OF ZIMBABWE

LC/H/145/11

In the matter between:

KWANELE JIRIRA & ANOTHER: Applicants

UNIVERSITY OF ZIMBABWE: Respondents

Before the Honourable B T Chivizhe, President

(IN CHAMBERS)

Whereupon, after reading documents filed of record:

IT IS ORDERED THAT -

The application for dismissal of appeal in terms of Rule 19(3)(a) of the Labour Court Rules be and is hereby granted.”

The above order is clearly not a judgment but an order given by the learned judge a quo sitting in chambers.

This is so because it does not bear a judgment number or reasons for judgment. It cites no legal representatives, signifying that none were heard - although both parties had legal representation.

This is clearly a default judgment.

It is not correct for the applicant to say, in its founding affidavit, that, the learned judge did not give reasons for its judgment. This is because, in the same breath, it confesses that the judgment was given pursuant to an application for dismissal of its appeal because of its failure to file heads of argument timeously.

It is therefore plain, that, the applicant's appeal was dismissed for want of compliance with the Rules.

Nowhere in its grounds of appeal does the applicant allege that it filed its heads of argument timeously.

In my view, the applicant having failed to file its heads of argument within the prescribed time limit, it ought to have applied for rescission of judgment in terms of section 92C of the Labour Act.

The section confers a wide discretion on a judge of the Labour Court to rescind his own decisions, including those given in the absence of a party or in error. The section provides as follows:

“(1) Subject to this section, the Labour Court may, on application, rescind or vary any determination or order —

(a) Which it made in the absence of the party against whom it was made; or

(b) Which the Labour Court is satisfied is void or was obtained by fraud or a mistake common to the parties; or

(c) In order to correct any patent error.

(2) The Labour Court shall not exercise the powers conferred by subsection (1) –

(a) Except upon notice to all the parties affected by the determination or order concerned; or

(b) In respect of any determination or order which is the subject of a pending appeal or review.

(3) Where an application has been made to the Labour Court to rescind or vary any determination or order in terms of subsection (1), the Labour Court may direct that —

(a) The determination or order shall be carried into execution; or

(b) Execution of the determination or order shall be suspended pending the decision upon the application; upon such terms as the Labour Court may fix as to security for the due performance of the determination or order or any variation thereof.”

That application ought to have been made simultaneously with an application for condonation and extension of time within which to file its heads of argument in terms of Rule 26 of the Labour Court Rules which provides that:

“At any time before, or during the hearing of a matter, a President or the Court may —

(a) Direct, authorise or condone a departure from any of these rules, including an extension of any period specified therein, where the President or Court is satisfied that the departure is required in the interests of justice, fairness, and equity;

(b) Give such directions as to procedure in respect of any matter not expressly provided for in these rules as appear to the President of the Court to be just, expedient, and equitable.”

In terms of Rule 33 of the Labour Court Rules, the applicant had 30 days within which to make the above applications for relief in the court a quo - from the date it became aware of the so-called judgment.

This it did not do.

The so called judgment it seeks to impugn is dated 31 October 2012. It only approached this court for relief about two and a half years later on 15 March 2015.

That delay in approaching this Court is lengthy and inordinate. It cannot be the kind of delay occasioned by a party who has the serious intention to prosecute its appeal.

It appears to me, that, this application was lodged as an afterthought, simply to circumvent the court a quo and throw spanners into the pending execution.

The applicant could no longer approach the court a quo for relief as it was now woefully out of time.

Approaching this Court was an ingenuous way of evading the natural consequences of its inordinate delay in approaching the court a quo for relief timeously.

SC18-23 : UNKI MINES (PRIVATE) LIMITED vs DOHNE CONSTRUCTION (PRIVATE) LIMITED
Ruled By: MUSAKWA JA

This is an opposed chamber application for condonation for non-compliance with the Supreme Court Rules 2018 and for extension of time in which to appeal made in terms of Rule 43.

The intended appeal is against a judgment of the High Court, handed down on 17 February 2021, upholding the respondent's application for a compelling order. The applicant seeks an order in the following terms:

1. The application for condonation for non-compliance with rules and extension of time within which to appeal be and is hereby granted.

2. The Notice of Appeal filed of record be and is hereby deemed to have been filed as of the date of this order.

FACTUAL BACKGROUND

On 6 and 7 March 2013, the applicant and the respondent entered into an agreement whereby the respondent was contracted to construct housing units for the applicant. It was a term of the contract, that, in the event of a dispute arising between the parties, an adjudicator would be appointed to resolve the dispute, and, the adjudicator's decision would be final.

Two disputes arose between the parties.

The first dispute was referred for adjudication and a determination was made. The applicant did not give notice of dissatisfaction with the adjudicator's decision, thus, rendering the decision final and binding.

Another dispute between the parties arose and this related to a termination certificate that was issued by the applicant, and the matter was also referred for adjudication.

The adjudicator ruled, that, the termination of the contract was improper as it arose out of the applicant's own wrongdoing. The adjudicator further ruled, that, the termination certificate was not issued promptly and in accordance with the terms of the contract.

It is in respect of the adjudicator's second decision that the respondent sought a compelling order against the applicant in the court a quo.

Before the court a quo, the respondent contended, that, the decision by the adjudicator was binding on the parties unless and until it was revised by the tribunal, and was enforceable as a matter of contractual obligation between the parties and not as an arbitral award. It thus argued, that, the respondent was entitled to the relief sought.

The applicant opposed the application arguing, that, there was no legal basis for the relief sought as the respondent was attempting to enforce the adjudicator's determination as if it was an arbitral award.

It further argued, that, the matter was already before the courts, thus, the application was an abuse of court process.

In addition, the applicant contended that the respondent's claim had prescribed.

It was the court a quo's finding, that, the parties relationship, rights, duties, and obligations were governed by the contract which the parties had entered into.

The court a quo ruled, that, since the adjudicator's decision was final and binding, until it was set aside by the tribunal, the argument by the applicant, that, the matter was improperly before the court fell away.

It ruled, that, a notice of dissatisfaction or referral to arbitration did not, within the context of the contractual terms, serve to suspend or stay the adjudicator's decision.

On the issue of prescription, it was the court's finding, that, prescription only begins to run when a cause of action is complete, and, in this case, it was not complete since the entire decision of the adjudicator had been referred to arbitration by the applicant.

SC23-24 : EDWARD MUDYAVANHU vs CAIRNS FOODS LIMITED
Ruled By: MAKONI JA, MATHONSI JA and CHATUKUTA JA

This is an appeal against the whole judgment of the Labour Court of Zimbabwe (the court a quo) sitting at Harare, dated 27 July 2022. After hearing submissions from the appellant and counsel for the respondent, the court dismissed the appeal with costs indicating that reasons for the order would ...

FACTS

The appellant was employed by the respondent as a Management Accountant. In 2001, his employment was terminated after a restructuring exercise. The appellant challenged the termination. The challenge resulted in a judgment handed down by MAKAMURE J on 13 April 2004, under LC/H/35/2004, who ruled, that, the appellant had been wrongfully dismissed from employment and ordered that he be paid damages as compensation for the wrongful dismissal.

In 2009, the appellant filed an application for quantification of damages in the Labour Court. In a judgment handed down on 27 May 2009, MHURI J quantified the damages payable in the total amount of Zimbabwean dollars $26,076,252.

In 2020, the appellant approached the High Court seeking registration of the judgment by MHURI J. DUBE J…, struck the matter off the roll. She found that the matter was improperly before the court as the award was denominated in Zimbabwean dollars which was no longer a usable currency during the period in question.

Following the striking off of the matter from the roll by the High Court, the appellant approached the Labour Court, again, under case number LC/H/APP/43/20 seeking an order for the evaluation of his salaries and benefits owed to him by the respondent. In that application, the appellant sought a variation of his damages which had been quantified in 2009 in Zimbabwean dollars to be varied to reflect a quantum of 'Zimbabwean dollars as they are currently valued'.

MANYANGADZE J, in dealing with the application, struck the matter off the roll on 3 July 2020, for the reason, that, it was improperly before the court as the appellant sought relief which had already been rendered by the court.

In September 2021, the appellant sought to contest the judgment by MANYANGADZE J, by way of appeal. He sought condonation for late filing of an application for leave to appeal as he was out of time. The application was made under case number LC/H/462/21. The application was struck off the roll by CHIVIZHE J for failure to meet the requirements of an application for condonation.

PROCEEDINGS IN THE COURT A QUO

The appellant then proceeded to make an application, in terms of paragraph 5 of Practice Direction 3 of 2013 (Practice Direction), under case number LC/H/206/22, for reinstatement of LC/H/APP/43/20 which had been struck off the roll by MANYANGADZE J on 3 July 2023.

The application for reinstatement was opposed by the respondent who averred, that, in terms of Rule 36 of the Labour Court Rules, the appellant had thirty days within which to apply for the reinstatement of LC/H/APP/43/20. In this regard, the respondent argued, that, the appellant was out of time to seek the reinstatement he sought.

The respondent also opposed the application on the basis, that, the application before MANYANGADZE J had been struck off the roll because it had been made on the basis of a subject matter which had already been disposed of by the same court. The respondent thus argued, that, reinstating the application would not result in any tangible result.

On 27 July 2022, CHIVIZHE J dealt with the application for reinstatement and found, that, the Practice Direction was introduced with a view to ensuring the uniform use of legal terms and the application of those terms in the Superior Courts.

The court noted, that, the Practice Direction was not created to replace court rules, and, as such paragraph 5 of the Practice Direction had to be read together with Rule 36 of the Labour Court Rules, 2017.

In this regard, the court found, that, as the appellant's matter had been struck off the roll because of a jurisdictional basis, and not on the basis of failure to comply with rules, the court was functus officio. The matter could not therefore be reinstated in terms of paragraph 5 of the Practice Direction.

The court further found, that, the appellant's recourse was in Rule 36 of the Labour Court Rules. The court, however, noted, that, the appellant could only resort to that Rule within 30 days of becoming aware of the abandonment of his matter, and that, in the circumstances of the case, the appellant had brought his matter two years after the last order was issued.

The application was thus struck off the roll.

SC36-23 : GLOBAL HORIZON (PVT) LTD and GODFREY CHINDOMU and NOMUSA CHINDOMU vs FMC FINANCE (PVT) LTD and SHERIFF OF THE HIGH COURT N.O. and REGISTRAR OF DEEDS
Ruled By: MAVANGIRA JA

This is a chamber application in which the applicant seeks condonation for failure to comply with Rule 38(1)(a) of the Supreme Court Rules 2018 and for extension of time within which to file and serve a notice of appeal.The application is opposed.FACTUAL BACKGROUNDThe background to the matter is that on ...

FACTUAL BACKGROUND

The background to the matter is that on 11 November 2021, the first respondent, a financial institution, issued provisional sentence summons against the first applicant, a legal entity, and the second and third respondents, who are the legal entity's directors, claiming payment of USD142,392=54.

The provisional sentence summons having been served and the applicants not having acted upon it, a default judgment was entered against them.

The default judgement ordered the applicants, jointly and severally, the one paying, the others being absolved, to pay the first respondent USD142,392=54 payable in Zimbabwe Dollars at the Reserve Bank of Zimbabwe auction rate as at the date of payment together with interest on that amount at the rate of 18 per centum per month plus penalty at the rate of 25 per centum per month from 1 October 2021 to the date of payment in full.

The applicants filed, before the court a quo, an application for rescission of the said default judgment under HC7268/21. They sought an order in the following terms:

“1. The application for rescission of the Provisional Judgment in case number HC6333/21 be and is hereby granted.

2. The Provisional Judgment granted by this court in the matter HC6333/21 be and is hereby discharged.

3. The Applicant be and is hereby granted leave to defend the main action instituted by the 1st respondent under case number HC6333/21.

4. The 2nd Respondent be and is hereby barred from executing the default order pending the finalization of the matter in case number HC6333/21.

5. 1st Respondent be and is hereby ordered to pay costs of suit on a legal practitioner-client scale.”

The application was dismissed on 13 December 2022.

THIS APPLICATION

Irked by the dismissal, the applicants have now filed this application.

The applicants papers aver, that, a notice of appeal was, after the dismissal of the application for rescission, a notice of appeal was timeously filed, but, there was no communication from the Registrar.

The date of the alleged filing is not disclosed in the papers.

The legal practitioner seized with the matter alleges, that, when she checked on the Intergrated Electronic Case Management System (the IECMS), on 10 March 2023, she then realized that no case number had been allocated to the appeal and that no payment request had been made by the Registrar.

By implication, the stance of the applicants is that it was only thereafter that they realized that their notice of appeal, despite their timeous attempt to file it, was now out of time, and they, therefore, had to make this instant application.

PRELIMINARY POINTS

Submissions on behalf of the first respondent

At the onset of these proceedings, counsel for the first respondent raised preliminary issues on the basis of which he prayed for the application to be struck off the roll.

Counsel submitted, that, the applicants are guilty of abuse of the processes of the court by filing myriad applications, including the current application, without disclosing to the court that they are making payments in terms of the judgment that they seek to challenge.

He referred the court to a receipt dated 8 February 2023 reflecting payment of ZW$45 million by the first applicant to the first respondent.

The payment, counsel submitted, means that the applicants were acquiescing in the judgment and the filing of this, and other applications, is made merely to delay execution by the second respondent while they make payments at their leisure.

Furthermore, he argued, they have not disclosed to the court the basis for making the payment while at the same time proceeding to allege that the judgment obtained against them ought not to stand.

By their actions, and this payment having been made prior to the filing of this application, the applicants were approbating and reprobating at the same time, a position impermissible at law.

Counsel further submitted, that, the application is founded on a lie in respect of a material term.

The falsehood, he submitted, was in respect of the averment made in the applicants and their legal practitioner's affidavits, that, an appeal had been timeously uploaded on the Intergrated Electronic Case Management System (IECMS) within the stipulated time limits but the Registrar did not respond to them until, on their own initiative, they followed up on the matter and discovered alleged technical issues.

Counsel submitted, that, the falsehood is exposed by the Registrar's record, as reflected in Annexure GH3, which clearly shows that the said notice of appeal was submitted on 17 January 2023.

He contended, that, when regard is had to the date of the judgment sought to be appealed against, being 13 December 2022, it is clear that the last date on which the notice of appeal could be filed was 6 January 2023. Thus, by 17 January, the applicants were already 12 days out of time for purposes of filing a notice of appeal. It was therefore entirely false to claim, that, the appeal was properly filed but was not, or could not, be accepted due to technical reasons.

Counsel submitted, that, this was an attempt to mislead the court because the Integrated Electronic Case Management System (IECMS) does not accept documents out of time.

He argued, that, the applicants ought to have disclosed that the dies induciae had expired on them and ought to have explained why there was no action on their part and also explained the period from 6 January 2023 to the date of the filing of this application.

Counsel for the first respondent contended, that, there was, therefore, no explanation before the court because a false explanation is no explanation at all. Without an explanation, the application is fatally defective.

Counsel referred to the case of Matsika & Anor v Chingwena & 38 Ors SC144/2001 and submitted, that, an application based on lies relating to fundamental issues can be dismissed on that basis alone.

He also submitted, that, a litigant who gives an explanation that is an insult or an affront to the intelligence of the court cannot convince the court on the validity of his alleged explanation for non-compliance. In this regard, he cited Songore v Olivine Industries 1988 (2) ZLR 210 (S)…,. He also referred the court to Diocesan Trustees for Diocese of Harare v CPCA 2010 (1) ZLR 267…, where MALABA DCJ…, stated at 277C-D:

“…,. How could a judicial discretion be exercised in favour of a party when that party had not placed before the judicial officer an explanation for non-compliance with a mandatory rule of court and asked for indulgence? Indulgence cannot be extended to a party that has not asked for it.”

Counsel prayed that the court strikes the application off the roll on the basis of these preliminary points.

Submissions on behalf of the applicants

Per contra, counsel for the applicants submitted, that, the payments that the applicants are making are not in respect of the judgment that they seek to appeal against, but, against the judgment that dismissed their common law application for the rescission of the default judgment in terms of which they were ordered to pay the first respondent!

He submitted, that, the two judgments must be differentiated as one is a judgment ad pecuniam solvendam and the other is not.

Counsel for the applicants further argued, that, the applicants do not deny owing the principal amount; it is the interest that has become contentious. The payment being made is thus in respect of the capital amount.

Counsel further submitted, that, by his argument, that, the applicants were acquiescing in the judgment by making payments, counsel for the first respondent was thereby raising the issue of peremption.

He submitted, that, the principle of peremption can only be invoked in circumstances where the applicants seek to impugn the judgment ad pecuniam solvendam and not in the present circumstances. The principle of peremption has thus been prematurely raised in this application.

On the contention, that, the effect of the application being premised on a falsity was that there was in fact no explanation placed before the court, counsel argued, that, the issue cannot properly be treated as a preliminary point because it should be related to and ventilated in the context of being one of the requirements in an application for condonation. It is only then that the court can determine the adequacy or falsity of the explanation.

Counsel also submitted, that, in Matsika & Anor v Chingwena & 38 Ors SC144-01, the court was dealing with the merits of the matter that was before it and not with a preliminary point and that the case, therefore, did not advance the first respondent's contention. It was his contention that this specific issue does not qualify to be treated as a preliminary point as it is not one.

Counsel prayed for the dismissal of the points that have been raised as preliminary points on the basis of them being meritless.

After hearing the parties, I reserved my ruling on the understanding that the merits of the application would be related to depending on the determination made on the preliminary issues.

It is my view, that, if this application is, as alleged, premised on a falsity, then, it certainly must be struck off the roll, as prayed for by the first respondent.

In order to ascertain the validity of this accusation, I will proceed to examine the veracity of the allegations laid at the applicants door.

The second applicant deposed to the founding affidavit for this application. He stated at paragraphs 7.1 and 7.2:

“7.1 This is an application for condonation and extension of time within which to note an appeal with the Supreme Court made in terms of Rule 43 of the Supreme Court Rules 2018. The Applicant noted attempted to note (sic) an appeal with this court sometime in January 2023 on the intergrated electronic management platform timeously but the same process was not successful and a case number was not generated.

7.2 I attach hereto as Annexure GH2 the notice of appeal that was uploaded by the Applicants. I further attach proof from the page of electronic management system that attests that indeed an appeal was filed and the same was not issued because of operating and network issues on the system as I am advised by my practitioners. The same is attached as Annexure GH3.”…,.

The applicants legal practitioner deposed to a supporting affidavit stating at paragraphs 3 to 9:

“3. I aver, that, on the 13th of December 2022, an adverse judgment was rendered against the Applicant. I received instructions from the Applicant to appeal against the same.

4. I timeously uploaded the appeal on the IECMS platform. I, however, did not receive any communication from the Registrar. I thought all was well until the 10th of March 2023 when I just investigated in order to see progress.

5. I noted that no case number was allocated to the appeal and no payment request was made to me.

6. I thus acted erroneously. I carry the responsibility and pray that this court indulges the Applicant for my error. It is one which is not out of this world.

7. I have always made efforts to prosecute the appeal.

8. I have been candid with this court as its officer.

9. I pray that I be forgiven and the Applicant be granted the relief it craves for.”…,.

A perusal of Annexure GH3, at p20 of the application, reveals and confirms, that, an appeal against the dismissal of an appeal (sic) (application) for default judgment was submitted by the first applicant on the Integrated Electronic Case Management platform (IECMS) on 17 January 2023.

The date, 17 January 2023, must now be juxtaposed with the date of the judgment sought to be appealed against. It is common cause, that, that judgment was rendered on 13 December 2022.

Rule 38(1)(a) of the court rules requires a notice of appeal to be filed within 15 days of the date of the judgment appealed against.

It appears to me, if my calculation is correct, that, the deadline for the filing of an appeal would have been 3 January 2023. However, the first respondent's counsel submitted, that, the last day for filing any appeal against the judgment was 6 January 2023. For the purposes of this judgment, I will relate to counsel's calculation giving the 6 January date.

The undeniable fact, though, is that both dates are outside the 15 days prescribed period.

The appeal that the applicants describe as having been timeously noted, having been submitted on the Integrated Electronic Case Management platform (IECMS) on 17 January 2023, it follows, that, that was certainly outside the prescribed time limit.

If the applicant's legal practitioner believed that she had submitted or uploaded the notice of appeal timeously, as she claims, one would have expected her to have timeously raised a complaint or a query with the Registrar and not to wait until almost two (2) months later, on 10 March, 2023, to investigate “in order to see progress.”

Notably, counsel for the applicants did not dispute counsel for the first respondent's submission, that, the IECMS platform does not accept documents that are filed outside the prescribed time limits. Neither did he dispute the allegation that the applicants and their legal practitioner had not hold the truth. More importantly, though, he made no submission in response to the allegation, that, the applicants legal practitioner, who is an officer of the court, and who deposed to the supporting affidavit, had told a “positive falsehood.”

No submission was made regarding the fact, that, the date of submission reflected on the Registrar's Intergrated Electronic Case Management excerpt was 17 January 2023 and that the said date is way outside the prescribed 15 day period.

The challenges that legal practitioners and/or litigants might have been faced with in filing documents and pleadings on the Intergrated Electronic Case Management platform (IECMS) during the period from soon after its inception, must not be viewed as a convenient scapegoat to fall back on and ascribe unrelated personal incompetencies and inefficiencies to.

The “operating and network issues on the system” that the deponent to the founding affidavit claims to have been advised of by the legal practitioner, are not referred to or substantiated by the said legal practitioner in the supporting affidavit that she deposed to.

The notice of appeal was patently filed out of time and was consequently not accepted by the system.

One ought not to be faulted in assuming, that, that would explain why the legal practitioner, in her affidavit, refrained from making any reference to any operating and network issues. That might also explain why counsel, during the hearing of this application, avoided making any submissions on this aspect. Such operating and network issues would, if genuinely raised, have been raised with and confirmed by the Registrar.

This has not happened in this case.

If anything, the Registrar's data from the system exposes the fact, that, the attempt to file a notice of appeal was made out of time.

It is also significant to note at this juncture, that, in any event, in terms of Rule 37 as read with Rule 38, an appeal is properly instituted by filing and serving “on a registrar, a registrar of the High Court and the respondent.”

The applicants do not state that they complied with the said requirements.

SC48-23 : WONDER DUBE vs KEITH MATSEKA
Ruled By: BHUNU JA

This is an opposed chamber application for reinstatement of an appeal under case number SC166/22. The application is brought consequent to the applicant's failure to file his heads of argument within the prescribed time limits....,.The Registrar's letter calling for the appellant's heads of argument was served on the applicant on ...

SC50-23 : JANE HOVE vs BEREA MINING SYNDICATE and MO3 MINING SYNDICATE and OFFICER IN CHARGE, MINERALS FLORA AND FAUNA UNIT, ZVISHAVANE and PROVINCIAL MINING DIRECTOR, MIDLANDS and M J MUNODAWAFA
Ruled By: CHITAKUNYE JA

This is an opposed chamber application for condonation of non-compliance with Rule 38(1)(a) and extension of time within which to note an appeal made in terms of Rule 43(3) of the Supreme Court Rules 2018.FACTUAL BACKGROUNDIn August 2022, the applicant filed an urgent chamber application for an interdict against the ...

FACTUAL BACKGROUND

In August 2022, the applicant filed an urgent chamber application for an interdict against the respondents in the High Court, Bulawayo. In the application, the applicant sought to interdict the first and second respondents from carrying out any mining activities on the applicant's mining claims; namely, Berea 17, Berea 18, and Site 232 within certain co-ordinates.

The applicant, on the one hand, and the first and second respondents, on the other, have been involved in a dispute over mining claims boundaries for some time. The dispute has been before the High Court from as far back as March 2014 when the applicant approached the High Court in an urgent chamber application in HC386/14 seeking a provisional order against the respondents.

On 3 March 2014, the High Court granted an order in these terms:

1. The court orders and directs the fourth respondent to engage the Regional Mining Surveyor to conduct and prepare a comprehensive report pertaining to the dispute under Case No.HC386/14.

2. The matter be and is hereby postponed pending production of the report in para 1 above.

The fourth respondent was the Mining Commissioner N.O. (Masvingo Mining District).

On 14 August 2014, the Principal Mining Surveyor, in the Regional Mining Engineer's office, submitted his report to the Chief Government Mining Engineer in compliance with the above court order.

That report noted a number of irregularities in the disputed claims. These included, that, whilst the claim numbers remained the same, the sizes of the claims had been adjusted by enlarging some of them leading to claims encroaching into each other. The report therefore recommended, that, the claims should be adjusted down to the original sizes as at the time of initial registration, and that, in the process, the principle of priority rights should be applied.

A final order was granted in that case, almost 6 years later, on 24 February 2020, in the following terms:

1. The fourth respondent be and is hereby directed to implement the findings and remove encroachments on the disputed claims in terms of the survey report dated 14 August 2014 within 14 days of this order.

On 4 June 2021, the Chief Government Mining Engineer (CGME), M.J. Munodawafa, prepared his report on how the findings of 14 August 2014, as mandated by the court order of 24 February 2020, were to be implemented by reverting to the original claim boundaries as at the time of original registration of the parties respective claims. That report included a map and an explanation of how each claim was to be affected.

The parties were duly advised of the Chief Government Mining Engineer's report on the implementation of the resolution to the dispute by letter dated 31 January 2022.

On 28 August 2022 (or 22 August 2022 as contended by the respondents) the applicant filed another urgent chamber application in the court a quo seeking to interdict the first and second respondents from conducting mining activities on the disputed claims.

The application was opposed by the first and second respondents and judgment thereof was rendered on 20 October 2022 in the presence of counsel for the contesting parties. The applicant was also present when judgment was handed down.

The judgment having been handed down on 20 October 2022, any aggrieved party had 15 days from that date within which to note an appeal in terms of Rule 38(1)(a) of the Supreme Court Rules 2018.

That period lapsed on 10 November 2022, and, by that time, no party had filed or noted an appeal.

When the applicant sought to appeal against that judgment, she was out of time; hence, this application for condonation and extension of time within which to appeal which was issued on 5 December 2022.

In making this application, the applicant alleged, that, judgment in the matter was handed down on 21 October 2022.

SC59-24 : CHANDRA GOYEL vs MYRAMMAR FARMING (PRIVATE) LIMITED t/a COTTONZIM and OTHERS
Ruled By: MWAYERA JA

This is a chamber application for condonation for the late noting of an appeal and extension of time within which to note an appeal made in terms of Rule 43(1) as read with Rule 43(2) of the Supreme Court Rules 2018 (“the Rules”).The application is opposed.The order sought by the ...

This is a chamber application for condonation for the late noting of an appeal and extension of time within which to note an appeal made in terms of Rule 43(1) as read with Rule 43(2) of the Supreme Court Rules 2018 (“the Rules”).

The application is opposed.

The order sought by the applicant in this application is as follows:

“RELIEF SOUGHT

WHEREUPON after reading documents filed of record and hearing counsel;

IT IS ORDERED THAT:

1. The applicant's non-compliance with Rule 38(1)(a), Rule 37(1)(e), Rule 37(2), Rule 55(5) of the Supreme Court Rules be and is hereby condoned.

2. The application for extension of time within which to note an appeal be and is hereby granted.

3. Within 5 days of this order, the applicant shall file and serve its notice of appeal.

4. There shall be no order as to costs.”

On 5 December 2023, in an ex tempore judgment, I struck the matter off the roll with costs. The applicant has requested for the written reasons for judgment.

These are they.

FACTUAL BACKGROUND

The background to this application can be summarised as follows:

In December 2011, the applicant lent and advanced an amount of One Million United States Dollars (USD$1,000,000) (hereinafter referred to as the loan) to the first respondent to fund its cotton seed purchase for the 2012 buying season.

The second to the sixth respondents (Virendra Ranchod, Manojkumar Jivan, Jayprakash Patel, Vinodkumar Rama and Serish Ranchod) executed personal guarantees in respect of the transaction that bound them as guarantors of the loan.

They jointly and severally bound themselves in varying amounts in respect of the loan.

In addition, the respondents also bound themselves as sureties and co-principal debtors for a punctual re-payment of the loan.

The seventh respondent (Gloworm Investments (Pvt) Ltd) tendered Stand number 7489 of Salisbury Township held under Title Deed number 8677/97 as security for the loan.

The first respondent (Myrammar Farming (Pvt) Ltd) t/a Cottonzim), duly represented by the second and sixth respondents, undertook to pay this amount in full on or before December 2012.

Despite various letters demanding payment by the applicant, the respondents failed to pay the applicant back the full amount as had been agreed.

In November 2013, the first respondent signed an acknowledgment of debt in respect of the loan in the sum of one million United States dollars plus interest.

On 30 July 2014, the first respondent was placed under provisional judicial management.

On 8 June 2016, the applicant instituted proceedings against all the respondents in the High Court, under case number HC5762/16, wherein he sought, inter alia, the payment of the USD$1 million, which amount had been advanced to the first respondent.

PROCEEDINGS BEFORE THE COURT A QUO

On 10 May 2022, at the commencement of the trial, the third to the fifth respondents raised three points in limine:

(i) Firstly, that the matter had prescribed;

(ii) Secondly, that there was a violation of the provisions of the Exchange Control Regulations; and

(iii) Lastly, that leave of the court was required before suing the first respondent which was under provisional judicial management.

In arguing the third preliminary point, counsel for the applicant submitted, that, leave was only required in respect of already existing proceedings at the time the provisional order is granted and that no leave was required for new suits. In support of this argument, counsel cited the case of Zambezi Gas Zimbabwe (Pvt) Ltd & Anor v N.R. Barber (Pvt) Ltd & Anor SC03-20.

Per contra, counsel for the first respondent argued, that, leave to sue a company under judicial management was necessary, and, failure to do so was fatal. He further submitted, that, the rationale for judicial management is an endeavour to resuscitate a company and avoid liquidation hence the need for leave.

The court a quo dealt with the issue regarding leave to sue; it upheld, that, the first respondent, being a company under provisional judicial management, could not be sued without leave of the court.

Aggrieved by this decision, the applicant noted an appeal in the Supreme Court under case number SC146/23 wherein he sought the setting aside of the decision of the court a quo upholding the preliminary point.

The appeal was noted on the grounds, that, the court a quo erred in finding that the applicant was required to seek leave to sue the first respondent notwithstanding that the applicant instituted proceedings against the respondents after the provisional order placing the first respondent in judicial management was handed down.

Further, the applicant averred, that, the court a quo erred in overriding the position that leave to sue companies placed under provisional judicial management only applies to proceedings already in existence at the time the provisional judicial management order is granted.

Lastly, the applicant averred, that, the court erred in failing to find that the respondents were estopped from raising the point relating to leave to sue in light of the fact, that, the issue had already been dealt with by the High Court.

It is important to note, that, the appeal was timeously lodged on 15 March 2023. The applicant offered to pay security for the respondents costs, but, however, while such tender was made, the security for costs was not paid within one month from the date of filing the notice of appeal.

The appeal was then deemed to have been abandoned and dismissed by operation of the law....,.

It is apparent, that, the appeal in case number SC146/23 which was deemed abandoned and dismissed by operation of law has a life line for reinstatement as provided for in Rule 70 of the Supreme Court Rules 2018.

It is an established principle, that, when a matter is deemed abandoned and dismissed because of operation of the law, it is removed from the roll....,.

The proper way to revive an appeal deemed abandoned and dismissed is by seeking reinstatement....,.

The rules provide for reinstatement of such an appeal that has been deemed abandoned and dismissed. Rule 70 of the Supreme Court Rules is apposite. It provides that:

“(1) Where an appeal is —

(a) Deemed to have lapsed; or

(b) Regarded as abandoned; or

(c) Deemed to have been dismissed in terms of any provision of these rules;
the Registrar shall notify the parties accordingly.

(2) The appellant may, within 15 days of receiving any notification by the Registrar in terms of subrule (1), apply for the reinstatement of the appeal on good cause shown.”…,.

SC64-23 : DOVES FUNERAL ASSURANCE (PVT) LTD vs HARARE MOTORWAY (PVT) LTD and AFRICAN BANKING CORPORATION LTD and BLUE STAR LOGISTICS PL and SHERIFF OF ZIMBABWE and REGISTRAR OF DEEDS
Ruled By: MAKONI JA

Rule 70 of the Supreme Court Rules provides as follows:“(1) Where an appeal is -(a) Deemed to have lapsed; or(b) Regarded as abandoned; or(c) Deemed to have been dismissed in terms of any provision of these rules; the registrar shall notify the parties accordingly.(2) The appellant may, within 15 days ...

SC69-23 : ZESA HOLDINGS (PRIVATE) LIMITED vs CLOVEGATE ELEVATOR COMPANY (PRIVATE) LIMITED and JUSTICE L.G. SMITH N.O.
Ruled By: MATHONSI JA, KUDYA JA and MWAYERA JA

Article 33 of the Model Law prescribes the arbitral tribunal's power to correct its award mero motu or on request on 30 days notice or any agreed period of extension after the delivery or publication of the award, but, within the prescribed period of 60 days or any extended period ...

SC116-23 : EASTLEA HOSPITAL (PRIVATE) LIMITED vs MARTHA NDORO and OTHERS
Ruled By: BHUNU JA, KUDYA JA and MWAYERA JA

This is an appeal against the whole judgment of the High Court (“the court a quo”) handed down on 6 October 2022. The court a quo dismissed the appellant's appeal against refusal of summary judgment by the Magistrates Court.FACTUAL BACKGROUNDThe appellant is a company duly registered in terms of the ...

FACTUAL BACKGROUND

The appellant is a company duly registered in terms of the laws of Zimbabwe and it operates various medical facilities in Harare. The appellant is the owner of Stand No. 3057 Salisbury Township, known as Killarney Court Eastlea, Harare (“the property”).

The property was sold to the appellant by the Executor of Estate Late Farida Hettena.

Prior to the sale of the property, the respondents were tenants residing at the property. The respondents were thus, upon purchase of the property, inherited as statutory tenants.

Pursuant to the purchase of the property, the appellant intended to convert it into a private hospital. The conversion required extensive renovations for the flats to undergo a rebuilding scheme. This would, in turn, make the property unsuitable for residential use during the renovations.

The appellant gave the respondents three months notice to vacate the premises. The notice expired on 12 April 2022 after which date the respondents failed and/or neglected to vacate the premises.

Consequently, the appellant instituted eviction proceedings in the Magistrates Court. The appellant sought an order for the cancellation of the lease agreements as well as eviction of the respondents.

The respondents respectively entered appearance to defend the summons.

Their defence was premised on the fact, that, there was a pending matter under HC2317/22, involving same parties, and that the resolution of that matter would determine who had title over the property.

The appellant then made an application for summary judgement before the Magistrates Court, averring that the respondents had no legal basis to stay at the property and that they did not have a bona fide defence.

It contended, that, the defence was filed solely as a delaying tactic to the imminent eviction.

Further, the appellant contended that the matters pending in the High Court had no bearing on the eviction matter as ownership of the property was clear.

In the pending case, the respondents had made an application to reopen the Late Farida Hettana's deceased Estate.

In deciding the matter, the Magistrates Court held, that, there were material disputes of facts that needed to be resolved by way of trial. The Magistrates Court found that it was difficult to ascertain and resolve the dispute before it without a full trial. It consequently dismissed the application for summary judgment.

Dissatisfied with the refusal to grant summary judgement, the appellant noted an appeal to the court a quo on the following grounds:

1. The court a quo erred at law, and thus misdirected itself, by dismissing the application for summary judgment when the respondent had not managed to prove an arguable defence.

2. The court further erred in fact and law by making a finding, that, there were material disputes of fact when none existed and had been pleaded by the parties.

3. The court erred at law in dismissing the application, having found that there were material disputes of facts when none existed.

4. The court erred at law in dismissing the application for summary judgment on the basis of a pending High Court matter….,.

The issue that was placed before the court a quo for determination was whether or not the Magistrates Court erred in dismissing the application for summary judgment.

The court a quo, upon assessing the matter before it, agreed with the Magistrates Court and thus found against the appellant.

It found, that, the appellant's first ground of appeal lacked merit because the respondents defence, that there was a pending case which could affect ownership, constituted a prima facie defence sufficient to vitiate the application for summary judgment.

The third ground of appeal was struck out by consent on the basis, that, it was repetitive of the second ground of appeal.

As regards, the second ground of appeal, the court a quo held that the material disputes of facts which required to be ventilated would emerge more fully in the trial of eviction proceedings. Consequently, it held that the second ground of appeal had merit.

The court a quo further upheld the fourth ground of appeal when it found that the matter pending before the High Court had not yet been disposed of.

The court a quo thus upheld the decision of the Magistrates Court and dismissed the appeal.

Irked, by the determination of the court a quo, the appellant noted the present appeal on the following grounds:

“GROUNDS OF APPEAL

1. The court a quo erred in failing to hold that the appellant was entitled to summary judgment as his right to vindicate cannot be defeated at law by a pending application challenging his acquisition of the property.

2. The court a quo further erred at law by upholding the decision of the Magistrates Court in instances where no material disputes of fact existed so as to constitute a bona fide defence to summary judgment.”

SUBMISSIONS BEFORE THIS COURT

Counsel for the appellant submitted, that, the court a quo erred at law by upholding the decision of the Magistrates Court when the appellant had satisfied the requirements for granting of a summary judgement. He submitted that the defence raised by the respondents, that there was a pending High Court matter and that there existed supposed material disputes of fact which would only emerge upon ventilation at a trial, was not a sufficient and valid defence to the application for summary judgment.

Counsel contended, that, the case pending in the High Court had no bearing on the application for eviction based on rei vindicatio.

He contended, that, the appellant was the registered owner of the property, and that, after giving due notice, it sought to evict the respondents.

It was counsel's further submission, that, the existence of a separate pending matter in which the respondents sought the re-opening of a deceased estate did not constitute a material dispute of fact. Moreso, considering that the pending matter had no bearing on ownership.

He averred that the respondents had no bona fide defence to the claim, and, as such, summary judgment ought to have been granted.

Per contra, counsel for the respondents submitted, that, there were issues which required to be ventilated through viva voce evidence. She submitted that the respondents had locus standi to challenge the administration of the estate of the seller since they were tenants on the property in question. She contended, that, the fact that the respondents were tenants, and that there was a pending case, was sufficient defence to the rei vindicatio as their tenancy had a bearing on ownership.

ISSUE FOR DETERMINATION

The sole issue that falls for determination in this case is whether or not the court a quo erred in upholding the Magistrates Court's decision dismissing of the appellant's application for summary judgment.

THE LAW

The law on summary judgement is settled. This Court has clearly set out the requirements that have to be justified for summary judgment to be granted.

In Tavenhave & Machingauta Legal Practitioners v The Messenger of Court SC53-14 this Court elucidated the requirements when it made the following pronouncement…,.:

“Summary judgement is a drastic remedy which will only be granted where it is clear that the defendant has no bona fide defence and has entered appearance to defend solely for purposes of delay. Because of the drastic nature of the remedy, a court will not grant it if there is any possibility that the defence raised on papers might succeed. Thus, it has been held that a mere possibility of success will suffice to avoid an order for summary judgment and that 'all that a defendant has to establish in order to succeed in having an application for summary judgment dismissed is that; 'there is a mere possibility of his success' 'he has a plausible case' 'there is a triable issue' or 'there is a reasonable possibility that an injustice may be done if summary judgment is granted.'”

See also Kingstons Limited v L D Ineson (Pvt) Ltd 2006 (1) ZLR 451 (S)…, and Bastin v Madzima SC37-20 in which this Court made the following remarks…,.:

“There can be no doubt that the appellant did not point to any bona fide defence to the respondent's claim or to any triable issue as would dissuade the court a quo to grant summary judgement.

While summary judgement is an extraordinary remedy, given that it deprives a litigant, desirous of defending an action, the opportunity to do so without regard to the audi alteram partem rule, it has always been granted by the courts to an applicant possessing an unassailable case. It is trite that such an applicant should not be delayed by resort to a trial whose outcome is a forgone conclusion.

It is also trite, that, in order to defeat an application for summary judgment, a respondent must set out a bona fide defence with sufficient clarity and completeness to enable the court to decide whether the opposing affidavit discloses facts which, if proved at the trial, would entitle the respondent to succeed.”…,.

It is apparent from the cited cases, that, in an application for summary judgment, the applicant must show that the respondent does not have a bona fide defence and that the defence is ill founded. In other words, for the applicant in a summary judgement to succeed, his claim must be un-assailable.

The appellant's claim is anchored on rei vindicatio.

What constitutes rei vindicatio has been ably set out in a number of cases in this Court. The case of Indium Investments (Pvt) Ltd v Kingshaven (Pvt) Ltd & Ors SC40-15…, is apposite. This Court illustrated what constitutes the principle of rei vindicatio as follows:

“The nub of the actio rei vindicatio is that an owner is entitled to reclaim possession of his property from whosoever is in possession thereof. As was stated in Chetty v Naidoo 1974 (3) SA 3 at p13:

'It may be difficult to define dominium comprehensively (cf. Johannesburg Municipal Council v Raid Townships Registrar & Ors 1910 TS 1314 at 1319), but, there can be little doubt that one of its incidents is the right to exclusive possession of the res, with the necessary corollary that the owner may claim his property, whenever found, from whomsoever holding it. It is inherent in the nature of ownership that possession of the res should normally be with the owner, and it follows that no other person may withhold it from the owner unless he is vested with some enforceable rights against the owner (e.g. a right of retention or a contractual right).'”

This Court set forth the remedy of rei vindicatio in Chenga v Chikadaya & Ors SC07-13…, when it stated the following:

“The rei vindicatio is a common law remedy that is available to the owner of property for its recovery from the possession of any other person. In such an action, there are two essential elements of the remedy that require to be proved. These are, firstly, proof of ownership, and, secondly, possession of property by another person. Once the two requirements are met, the onus shifts to the respondent to justify his occupation.”…,.

See also Stanbic Finance Zimbabwe Ltd v Chivhungwa 1999 (1) ZLR 262 (H) in which the principle of rei vindicatio was clearly propagated as a principle based on the fact, that, an owner cannot be deprived of his property against his will and that he is entitled to recover it from any person who retains possession of it without his consent.

The common thread running through the cases cited above is that title holders are protected by the law. Once ownership is proven, the vindication and protection of the right to ownership should prevail.

In rei vindiatio matters, once ownership has been proved, its continuation is presumed.

The owner simply has to prove ownership of an identified movable or immovable asset which the respondent is in possession of without his or her or its consent.

See also Alspite Investments (Pvt) Ltd v Westerhoff 2009 (2) ZLR 236 (H) and Nzara & Ors v Kashumba & Ors SC18-18.

APPLICATION OF THE LAW TO THE FACTS

What is to be determined in this case is whether or not the court a quo erred in upholding the dismissal of the application for summary judgment.

The appellant's main contention is that, having established the requirements of summary judgement, the court a quo ought not to have dismissed its appeal against the Magistrates Court judgment.

The appellant further sought to vindicate its right to the property for which it had title. The property was transferred to the appellant after it purchased the same.

After acquiring the property, the appellant gave the requisite three months notice to the respondents. This was on the basis that it required the property for its own use.

It is trite, both at common law and statute, that, a property owner has the right of use of that property and that the courts have a duty to restore that right when it is unjustifiably denied.

The appellant, having shown that it is the owner, per title, and that the respondents were refusing to vacate and thus holding onto possession of the property without its consent, satisfied the requirements of vindicatory relief.

The principle that an owner cannot be deprived of his property without his consent is settled.

Once established that the appellant is the owner, and that the respondent is holding on without the consent of the appellant, the onus shifts to the respondent to allege, and establish, that he or she has a legal right of retention of the property in question, or that he or she has an enforceable right against the owner.

The respondents in this case had no legal basis to justify their continued occupation of the property.

The respondents in this case have not alleged facts which would entitle them to succeed. A vague and generalised assertion, that, there are unspecified material disputes of facts to emerge at the trial, as alleged by the respondents, does not go close to demonstrating a bona fide defence.

The respondents did not spell out, with clarity, any triable issues.

That there is a pending case at the High Court in which the respondents, who are not beneficiaries, are challenging the appointment of an executor in the Estate Late Farida Hettena, is not a bona fide defence. It does not warrant the deprivation of the appellant, as the property owner, of its right to successfully vindicate its property.

Further, that there was a pending case was not a sufficient defence considering that correspondence contained in the record, that was addressed to the respondents, shows the executor's intention to sell the property.

SC126-23 : GODFREY MUGARI vs CHINHOYI UNIVERSITY OF TECHNOLOGY
Ruled By: CHITAKUNYE JA

This is an opposed chamber application for condonation for late filing of an application for leave to appeal and leave to appeal in terms of Rule 60 and 61 of the Supreme Court Rules 2018.At the conclusion of hearing on 31 August 2023, I gave an ex-tempore judgment dismissing the ...

This is an opposed chamber application for condonation for late filing of an application for leave to appeal and leave to appeal in terms of Rule 60 and 61 of the Supreme Court Rules 2018.

At the conclusion of hearing on 31 August 2023, I gave an ex-tempore judgment dismissing the application with costs. The applicant has requested for the written reasons for the decision. These are they.

THE FACTS

The applicant was formerly employed by the respondent as a lecturer. In 2018, he was charged with four counts of misconduct. The disciplinary proceedings were conducted in terms of the Labour (National Employment Code of Conduct) Regulations 2006, Statutory Instrument 15 of 2006.

He was duly convicted of two of the counts and acquitted of the other two counts by an internal Disciplinary Authority.

Dissatisfied with the internal Disciplinary Authority's determination on the two counts upon which he was convicted and dismissed from employment, he appealed to an internal Appeals Committee which upheld the Disciplinary Authority's decision.

Further dissatisfied by the decision of the Appeals Committee, he referred the matter to a Labour Officer and eventually to the Labour Court.

The Labour Court's decision was not to his satisfaction, hence, he appealed to this Court in SC236/20.

On 13 November 2020, this Court issued an order, by consent, setting aside the proceedings that had been undertaken before the Labour Officer and the Labour Court as such proceedings were held to have been nullities.

The applicant thereafter filed a new appeal to the Labour Court against the determination of the internal Disciplinary Authority and the upholding of that decision by the internal Appeals Committee.

On 8 February 2022, the Labour Court dismissed the applicant's appeal in an ex tempore judgement. Upon his request, written reasons for judgment were provided on 11 March 2022.

The applicant belatedly sought leave to appeal, but, that initial application was struck off the roll as he was out of time and had not sought condonation for the late filing of such an application.

The applicant subsequently filed an application for condonation for failure to seek leave within the period prescribed by the Rules and for leave to appeal in the Labour Court on 23 June 2022.

That application was dismissed by the Labour Court on 6 June 2023.

In terms of the proviso to Rule 60(2) of the Supreme Court Rules 2018, the applicant had ten (10) days within which to approach this Court for leave to appeal against the Labour Court's judgment from the date of the dismissal of his application by the Labour Court.

The applicant's initial application, in SC378/23, was fatally defective and was struck off the roll on 27 June 2023. The current application was filed on 8 August 2023 which was way outside the period by which such an application ought to have been filed.

It is in view of this that the applicant seeks condonation for failure to file the application for leave to appeal within the prescribed period and for leave to appeal.

The application is opposed.

Back Main menu

Law Portal
Zimbabwe

Prescription re: Administrative or Quasi Judicial Proceedings and Judicial Procedural Rights and Obligations

HH18-12 : PIONEER TRANSPORT (PVT) LTD vs DELTA CORPORATION LTD and DAVID LESLIE CRUTTEDEN
Ruled By: GOWORA J

HH55-09 : EBI ZIMBABWE (PVT) LTD vs OLD MUTUAL UNIT TRUSTS (PVT) LTD and ADVOCATE J.C.J. LEWIS
Ruled By: PATEL J

HH18-12 : PIONEER TRANSPORT (PVT) LTD vs DELTA CORPORATION LTD and DAVID LESLIE CRUTTEDEN
Ruled By: GOWORA J

HH336-13 : WEI WEI PROPERTIES (PVT) LIMITED vs S &T EXPORT AND IMPORT (PVT) LIMITED
Ruled By: MATHONSI J

Appealed
SC11-15 : PERUKE INVESTMENTS (PRIVATE) LIMITED vs WILLOUGHBY'S INVESTMENTS (PRIVATE) LIMITED and THE HONOURABLE MR. JUSTICE (RETIRED) A.R. GUBBAY SC
Ruled By: GOWORA JA, HLATSHWAYO JA and PATEL JA

View Appeal
SC13-18 : TBIC INVESTMENTS (PVT) LTD and PAUL CHIDAWANYIKA vs KENNEDY MANGENJE and MINISTER OF LANDS & RURAL DEVELOPMENT and REGISTRAR OF DEEDS and ATTORNEY GENERAL and COMMISSIONER OF POLICE
Ruled By: GWAUNZA JA, GOWORA JA and BHUNU JA

HH477-13 : BARCLAYS BANK OF ZIMBABWE LIMITED vs RESERVE BANK OF ZIMBABWE and UNIVERSITY OF ZIMBABWE
Ruled By: ZHOU J

HH249-13 : MARIAN KATSANDE (NEE MANDIZVIDZA) vs FADZAI KATSANDE (as Executrix Dative to Estate late Tongai Katsande) and FUNGAI KATSANDE and MASTER OF THE HIGH COURT N.O.
Ruled By: CHITAKUNYE J

SC32-15 : BINDURA MUNICIPALITY vs PAISON MUGOGO
Ruled By: GUVAVA JA

Appealed
HH93-16 : RITA MBATHA vs FARAI ZIZHOU and CONFEDERATION OF ZIMBABWE INDUSTRIES
Ruled By: DUBE J

View Appeal
SC69-18 : RITA MBATHA vs FARAI ZIZHOU and CONFEDERATION OF ZIMBABWE INDUSTRIES
Ruled By: MAKARAU JA, HLATSHWAYO JA and PATEL JA

HH675-21 : RITA MBATHA vs FARAI ZIZHOU and CONFEDERATION OF ZIMBABWE INDUSTRIES
Ruled By: MAFUSIRE J

SC14-22 : CRISPEN VUNDLA and DAVID MUCHINGURI vs INNSCOR AFRICA BREAD COMPANY ZIMBABWE (PVT) LTD and MAXWELL SABILIKA N.O.
Ruled By: KUDYA AJA

SC30-22 : RIOZIM LTD and RM ENTERPRISES (PVT) LTD vs MARANATHA FERROCHROME (PVT) LTD and JUSTICE MTSHIYA (RTD)
Ruled By: MAVANGIRA JA, UCHENA JA and MATHONSI JA

SC39-23 : LINDA KOPECKY and MARK KOPECKY and TSHOLOFELO TRUST and DIANE THORNTON and SLIPPER SHELL INVESTMENTS (PVT) LTD vs CITY OF HARARE and SPIRIT LIFE CHURCH
Ruled By: BHUNU JA, MAKONI JA and MWAYERA JA

Appealed
SC27-22 : ZIMBABWE CRICKET vs HARARE SPORTS CLUB and ADVOCATE DANIEL TIVADAR (ARBITRATOR)
Ruled By: MALABA CJ, GUVAVA JA and MAVANGIRA JA

View Appeal
HH398-19 : HARARE SPORTS CLUB CASE NO. HC9909/18 and ZIMBABWE CRICKET CASE NO HC10011/18 vs ZIMBABWE CRICKET and HARARE SPORTS CLUB and ARBITRATOR ADVOCATE DANIEL TIVADAR
Ruled By: MATHONSI J

SC141-20 : HARARE WETLANDS TRUST vs MINISTER OF ENVIRONMENT, TOURISM & HOSPITALITY and NEWLIFE COVENANT CHURCH and DIRECTOR GENERAL OF THE ENVIRONMENTAL MANAGEMENT AGENCY
Ruled By: CHITAKUNYE AJA

SC148-21 : NESTLE ZIMBABWE (PVT) LTD vs ZIMBABWE REVENUE AUTHORITY
Ruled By: GUVAVA JA, MAVANGIRA JA and MAKONI JA

SC32-15 : BINDURA MUNICIPALITY vs PAISON MUGOGO
Ruled By: GUVAVA JA

HH497-17 : RICHARD MATTHEWS vs CASTER INTERNATIONAL (PVT) LTD
Ruled By: CHATUKUTA J

HH707-15 : RICHARD MATTHEWS vs CRASTER INTERNATIONAL (PRIVATE) LIMITED
Ruled By: MAFUSIRE J

SC12-18 : UNIVERSITY OF ZIMBABWE vs KWANELE JIRIRA and LOUIS MASUKO
Ruled By: BHUNU JA

SC18-23 : UNKI MINES (PRIVATE) LIMITED vs DOHNE CONSTRUCTION (PRIVATE) LIMITED
Ruled By: MUSAKWA JA

SC23-24 : EDWARD MUDYAVANHU vs CAIRNS FOODS LIMITED
Ruled By: MAKONI JA, MATHONSI JA and CHATUKUTA JA

SC36-23 : GLOBAL HORIZON (PVT) LTD and GODFREY CHINDOMU and NOMUSA CHINDOMU vs FMC FINANCE (PVT) LTD and SHERIFF OF THE HIGH COURT N.O. and REGISTRAR OF DEEDS
Ruled By: MAVANGIRA JA

SC48-23 : WONDER DUBE vs KEITH MATSEKA
Ruled By: BHUNU JA

SC50-23 : JANE HOVE vs BEREA MINING SYNDICATE and MO3 MINING SYNDICATE and OFFICER IN CHARGE, MINERALS FLORA AND FAUNA UNIT, ZVISHAVANE and PROVINCIAL MINING DIRECTOR, MIDLANDS and M J MUNODAWAFA
Ruled By: CHITAKUNYE JA

SC59-24 : CHANDRA GOYEL vs MYRAMMAR FARMING (PRIVATE) LIMITED t/a COTTONZIM and OTHERS
Ruled By: MWAYERA JA

SC64-23 : DOVES FUNERAL ASSURANCE (PVT) LTD vs HARARE MOTORWAY (PVT) LTD and AFRICAN BANKING CORPORATION LTD and BLUE STAR LOGISTICS PL and SHERIFF OF ZIMBABWE and REGISTRAR OF DEEDS
Ruled By: MAKONI JA

SC69-23 : ZESA HOLDINGS (PRIVATE) LIMITED vs CLOVEGATE ELEVATOR COMPANY (PRIVATE) LIMITED and JUSTICE L.G. SMITH N.O.
Ruled By: MATHONSI JA, KUDYA JA and MWAYERA JA

SC116-23 : EASTLEA HOSPITAL (PRIVATE) LIMITED vs MARTHA NDORO and OTHERS
Ruled By: BHUNU JA, KUDYA JA and MWAYERA JA

SC126-23 : GODFREY MUGARI vs CHINHOYI UNIVERSITY OF TECHNOLOGY
Ruled By: CHITAKUNYE JA

Categories

Law Portal Zimbabwe

Prescription re: Administrative or Quasi Judicial Proceedings and Judicial Procedural Rights and Obligations

HH18-12 : PIONEER TRANSPORT (PVT) LTD vs DELTA CORPORATION LTD and DAVID LESLIE CRUTTEDEN Ruled By: GOWORA J

HH55-09 : EBI ZIMBABWE (PVT) LTD vs OLD MUTUAL UNIT TRUSTS (PVT) LTD and ADVOCATE J.C.J. LEWIS Ruled By: PATEL J

HH18-12 : PIONEER TRANSPORT (PVT) LTD vs DELTA CORPORATION LTD and DAVID LESLIE CRUTTEDEN Ruled By: GOWORA J

HH336-13 : WEI WEI PROPERTIES (PVT) LIMITED vs S &T EXPORT AND IMPORT (PVT) LIMITED Ruled By: MATHONSI J

Appealed SC11-15 : PERUKE INVESTMENTS (PRIVATE) LIMITED vs WILLOUGHBY'S INVESTMENTS (PRIVATE) LIMITED and THE HONOURABLE MR. JUSTICE (RETIRED) A.R. GUBBAY SC Ruled By: GOWORA JA, HLATSHWAYO JA and PATEL JA

View Appeal SC13-18 : TBIC INVESTMENTS (PVT) LTD and PAUL CHIDAWANYIKA vs KENNEDY MANGENJE and MINISTER OF LANDS & RURAL DEVELOPMENT and REGISTRAR OF DEEDS and ATTORNEY GENERAL and COMMISSIONER OF POLICE Ruled By: GWAUNZA JA, GOWORA JA and BHUNU JA

HH477-13 : BARCLAYS BANK OF ZIMBABWE LIMITED vs RESERVE BANK OF ZIMBABWE and UNIVERSITY OF ZIMBABWE Ruled By: ZHOU J

HH249-13 : MARIAN KATSANDE (NEE MANDIZVIDZA) vs FADZAI KATSANDE (as Executrix Dative to Estate late Tongai Katsande) and FUNGAI KATSANDE and MASTER OF THE HIGH COURT N.O. Ruled By: CHITAKUNYE J

SC32-15 : BINDURA MUNICIPALITY vs PAISON MUGOGO Ruled By: GUVAVA JA

Appealed HH93-16 : RITA MBATHA vs FARAI ZIZHOU and CONFEDERATION OF ZIMBABWE INDUSTRIES Ruled By: DUBE J

View Appeal SC69-18 : RITA MBATHA vs FARAI ZIZHOU and CONFEDERATION OF ZIMBABWE INDUSTRIES Ruled By: MAKARAU JA, HLATSHWAYO JA and PATEL JA

HH675-21 : RITA MBATHA vs FARAI ZIZHOU and CONFEDERATION OF ZIMBABWE INDUSTRIES Ruled By: MAFUSIRE J

SC14-22 : CRISPEN VUNDLA and DAVID MUCHINGURI vs INNSCOR AFRICA BREAD COMPANY ZIMBABWE (PVT) LTD and MAXWELL SABILIKA N.O. Ruled By: KUDYA AJA

SC30-22 : RIOZIM LTD and RM ENTERPRISES (PVT) LTD vs MARANATHA FERROCHROME (PVT) LTD and JUSTICE MTSHIYA (RTD) Ruled By: MAVANGIRA JA, UCHENA JA and MATHONSI JA

SC39-23 : LINDA KOPECKY and MARK KOPECKY and TSHOLOFELO TRUST and DIANE THORNTON and SLIPPER SHELL INVESTMENTS (PVT) LTD vs CITY OF HARARE and SPIRIT LIFE CHURCH Ruled By: BHUNU JA, MAKONI JA and MWAYERA JA

Appealed SC27-22 : ZIMBABWE CRICKET vs HARARE SPORTS CLUB and ADVOCATE DANIEL TIVADAR (ARBITRATOR) Ruled By: MALABA CJ, GUVAVA JA and MAVANGIRA JA

View Appeal HH398-19 : HARARE SPORTS CLUB CASE NO. HC9909/18 and ZIMBABWE CRICKET CASE NO HC10011/18 vs ZIMBABWE CRICKET and HARARE SPORTS CLUB and ARBITRATOR ADVOCATE DANIEL TIVADAR Ruled By: MATHONSI J

SC141-20 : HARARE WETLANDS TRUST vs MINISTER OF ENVIRONMENT, TOURISM & HOSPITALITY and NEWLIFE COVENANT CHURCH and DIRECTOR GENERAL OF THE ENVIRONMENTAL MANAGEMENT AGENCY Ruled By: CHITAKUNYE AJA

SC148-21 : NESTLE ZIMBABWE (PVT) LTD vs ZIMBABWE REVENUE AUTHORITY Ruled By: GUVAVA JA, MAVANGIRA JA and MAKONI JA

SC32-15 : BINDURA MUNICIPALITY vs PAISON MUGOGO Ruled By: GUVAVA JA

HH497-17 : RICHARD MATTHEWS vs CASTER INTERNATIONAL (PVT) LTD Ruled By: CHATUKUTA J

HH707-15 : RICHARD MATTHEWS vs CRASTER INTERNATIONAL (PRIVATE) LIMITED Ruled By: MAFUSIRE J

SC12-18 : UNIVERSITY OF ZIMBABWE vs KWANELE JIRIRA and LOUIS MASUKO Ruled By: BHUNU JA

SC18-23 : UNKI MINES (PRIVATE) LIMITED vs DOHNE CONSTRUCTION (PRIVATE) LIMITED Ruled By: MUSAKWA JA

SC23-24 : EDWARD MUDYAVANHU vs CAIRNS FOODS LIMITED Ruled By: MAKONI JA, MATHONSI JA and CHATUKUTA JA

SC36-23 : GLOBAL HORIZON (PVT) LTD and GODFREY CHINDOMU and NOMUSA CHINDOMU vs FMC FINANCE (PVT) LTD and SHERIFF OF THE HIGH COURT N.O. and REGISTRAR OF DEEDS Ruled By: MAVANGIRA JA

SC48-23 : WONDER DUBE vs KEITH MATSEKA Ruled By: BHUNU JA

SC50-23 : JANE HOVE vs BEREA MINING SYNDICATE and MO3 MINING SYNDICATE and OFFICER IN CHARGE, MINERALS FLORA AND FAUNA UNIT, ZVISHAVANE and PROVINCIAL MINING DIRECTOR, MIDLANDS and M J MUNODAWAFA Ruled By: CHITAKUNYE JA

SC59-24 : CHANDRA GOYEL vs MYRAMMAR FARMING (PRIVATE) LIMITED t/a COTTONZIM and OTHERS Ruled By: MWAYERA JA

SC64-23 : DOVES FUNERAL ASSURANCE (PVT) LTD vs HARARE MOTORWAY (PVT) LTD and AFRICAN BANKING CORPORATION LTD and BLUE STAR LOGISTICS PL and SHERIFF OF ZIMBABWE and REGISTRAR OF DEEDS Ruled By: MAKONI JA

SC69-23 : ZESA HOLDINGS (PRIVATE) LIMITED vs CLOVEGATE ELEVATOR COMPANY (PRIVATE) LIMITED and JUSTICE L.G. SMITH N.O. Ruled By: MATHONSI JA, KUDYA JA and MWAYERA JA

SC116-23 : EASTLEA HOSPITAL (PRIVATE) LIMITED vs MARTHA NDORO and OTHERS Ruled By: BHUNU JA, KUDYA JA and MWAYERA JA

SC126-23 : GODFREY MUGARI vs CHINHOYI UNIVERSITY OF TECHNOLOGY Ruled By: CHITAKUNYE JA

Categories

Your Donation.

Law Portal
Zimbabwe

HH18-12 : PIONEER TRANSPORT (PVT) LTD vs DELTA CORPORATION LTD and DAVID LESLIE CRUTTEDEN
Ruled By: GOWORA J

HH55-09 : EBI ZIMBABWE (PVT) LTD vs OLD MUTUAL UNIT TRUSTS (PVT) LTD and ADVOCATE J.C.J. LEWIS
Ruled By: PATEL J

HH18-12 : PIONEER TRANSPORT (PVT) LTD vs DELTA CORPORATION LTD and DAVID LESLIE CRUTTEDEN
Ruled By: GOWORA J

HH336-13 : WEI WEI PROPERTIES (PVT) LIMITED vs S &T EXPORT AND IMPORT (PVT) LIMITED
Ruled By: MATHONSI J

Appealed
SC11-15 : PERUKE INVESTMENTS (PRIVATE) LIMITED vs WILLOUGHBY'S INVESTMENTS (PRIVATE) LIMITED and THE HONOURABLE MR. JUSTICE (RETIRED) A.R. GUBBAY SC
Ruled By: GOWORA JA, HLATSHWAYO JA and PATEL JA

View Appeal
SC13-18 : TBIC INVESTMENTS (PVT) LTD and PAUL CHIDAWANYIKA vs KENNEDY MANGENJE and MINISTER OF LANDS & RURAL DEVELOPMENT and REGISTRAR OF DEEDS and ATTORNEY GENERAL and COMMISSIONER OF POLICE
Ruled By: GWAUNZA JA, GOWORA JA and BHUNU JA

HH477-13 : BARCLAYS BANK OF ZIMBABWE LIMITED vs RESERVE BANK OF ZIMBABWE and UNIVERSITY OF ZIMBABWE
Ruled By: ZHOU J

HH249-13 : MARIAN KATSANDE (NEE MANDIZVIDZA) vs FADZAI KATSANDE (as Executrix Dative to Estate late Tongai Katsande) and FUNGAI KATSANDE and MASTER OF THE HIGH COURT N.O.
Ruled By: CHITAKUNYE J

SC32-15 : BINDURA MUNICIPALITY vs PAISON MUGOGO
Ruled By: GUVAVA JA

Appealed
HH93-16 : RITA MBATHA vs FARAI ZIZHOU and CONFEDERATION OF ZIMBABWE INDUSTRIES
Ruled By: DUBE J

View Appeal
SC69-18 : RITA MBATHA vs FARAI ZIZHOU and CONFEDERATION OF ZIMBABWE INDUSTRIES
Ruled By: MAKARAU JA, HLATSHWAYO JA and PATEL JA

HH675-21 : RITA MBATHA vs FARAI ZIZHOU and CONFEDERATION OF ZIMBABWE INDUSTRIES
Ruled By: MAFUSIRE J

SC14-22 : CRISPEN VUNDLA and DAVID MUCHINGURI vs INNSCOR AFRICA BREAD COMPANY ZIMBABWE (PVT) LTD and MAXWELL SABILIKA N.O.
Ruled By: KUDYA AJA

SC30-22 : RIOZIM LTD and RM ENTERPRISES (PVT) LTD vs MARANATHA FERROCHROME (PVT) LTD and JUSTICE MTSHIYA (RTD)
Ruled By: MAVANGIRA JA, UCHENA JA and MATHONSI JA

SC39-23 : LINDA KOPECKY and MARK KOPECKY and TSHOLOFELO TRUST and DIANE THORNTON and SLIPPER SHELL INVESTMENTS (PVT) LTD vs CITY OF HARARE and SPIRIT LIFE CHURCH
Ruled By: BHUNU JA, MAKONI JA and MWAYERA JA

Appealed
SC27-22 : ZIMBABWE CRICKET vs HARARE SPORTS CLUB and ADVOCATE DANIEL TIVADAR (ARBITRATOR)
Ruled By: MALABA CJ, GUVAVA JA and MAVANGIRA JA

View Appeal
HH398-19 : HARARE SPORTS CLUB CASE NO. HC9909/18 and ZIMBABWE CRICKET CASE NO HC10011/18 vs ZIMBABWE CRICKET and HARARE SPORTS CLUB and ARBITRATOR ADVOCATE DANIEL TIVADAR
Ruled By: MATHONSI J

SC141-20 : HARARE WETLANDS TRUST vs MINISTER OF ENVIRONMENT, TOURISM & HOSPITALITY and NEWLIFE COVENANT CHURCH and DIRECTOR GENERAL OF THE ENVIRONMENTAL MANAGEMENT AGENCY
Ruled By: CHITAKUNYE AJA

SC148-21 : NESTLE ZIMBABWE (PVT) LTD vs ZIMBABWE REVENUE AUTHORITY
Ruled By: GUVAVA JA, MAVANGIRA JA and MAKONI JA

SC32-15 : BINDURA MUNICIPALITY vs PAISON MUGOGO
Ruled By: GUVAVA JA

HH497-17 : RICHARD MATTHEWS vs CASTER INTERNATIONAL (PVT) LTD
Ruled By: CHATUKUTA J

HH707-15 : RICHARD MATTHEWS vs CRASTER INTERNATIONAL (PRIVATE) LIMITED
Ruled By: MAFUSIRE J

SC12-18 : UNIVERSITY OF ZIMBABWE vs KWANELE JIRIRA and LOUIS MASUKO
Ruled By: BHUNU JA

SC18-23 : UNKI MINES (PRIVATE) LIMITED vs DOHNE CONSTRUCTION (PRIVATE) LIMITED
Ruled By: MUSAKWA JA

SC23-24 : EDWARD MUDYAVANHU vs CAIRNS FOODS LIMITED
Ruled By: MAKONI JA, MATHONSI JA and CHATUKUTA JA

SC36-23 : GLOBAL HORIZON (PVT) LTD and GODFREY CHINDOMU and NOMUSA CHINDOMU vs FMC FINANCE (PVT) LTD and SHERIFF OF THE HIGH COURT N.O. and REGISTRAR OF DEEDS
Ruled By: MAVANGIRA JA

SC48-23 : WONDER DUBE vs KEITH MATSEKA
Ruled By: BHUNU JA

SC50-23 : JANE HOVE vs BEREA MINING SYNDICATE and MO3 MINING SYNDICATE and OFFICER IN CHARGE, MINERALS FLORA AND FAUNA UNIT, ZVISHAVANE and PROVINCIAL MINING DIRECTOR, MIDLANDS and M J MUNODAWAFA
Ruled By: CHITAKUNYE JA

SC59-24 : CHANDRA GOYEL vs MYRAMMAR FARMING (PRIVATE) LIMITED t/a COTTONZIM and OTHERS
Ruled By: MWAYERA JA

SC64-23 : DOVES FUNERAL ASSURANCE (PVT) LTD vs HARARE MOTORWAY (PVT) LTD and AFRICAN BANKING CORPORATION LTD and BLUE STAR LOGISTICS PL and SHERIFF OF ZIMBABWE and REGISTRAR OF DEEDS
Ruled By: MAKONI JA

SC69-23 : ZESA HOLDINGS (PRIVATE) LIMITED vs CLOVEGATE ELEVATOR COMPANY (PRIVATE) LIMITED and JUSTICE L.G. SMITH N.O.
Ruled By: MATHONSI JA, KUDYA JA and MWAYERA JA

SC116-23 : EASTLEA HOSPITAL (PRIVATE) LIMITED vs MARTHA NDORO and OTHERS
Ruled By: BHUNU JA, KUDYA JA and MWAYERA JA

SC126-23 : GODFREY MUGARI vs CHINHOYI UNIVERSITY OF TECHNOLOGY
Ruled By: CHITAKUNYE JA