Documentary Evidence, Certification, Commissioning, Authentication and the Best Evidence Rule re: Foreign Documentation

HH20-09 : SHERRIE HARRIS vs MARK HARRIS
Ruled By: MUSAKWA J

The applicant is seeking an order declaring the continued retention of their minor child, Brett Morris (born 21 October 2004) by the respondent unlawful; that the minor child be returned to the custody of the applicant within seven days of the granting of the order; plus costs of suit. The parties were married to each other in the ...

The parties were married to each other in the United Kingdom in 2004 and the marriage still subsists although the parties are on separation. In her founding affidavit, the applicant states that on 24 June 2007 she and the respondent entered into an agreement in terms of the Children Act 1989 of the United Kingdom in respect of the minor child. The agreement permitted the respondent to take the minor child to Harare pending the applicant's fulfillment of the conditions attaching to it. A copy of the agreement was annexed to the founding affidavit.

The crucial part of the agreement provides that -

“AND UPON the mother and father agreeing that Brett shall only reside with his mother as set out below; once the mother is able to provide a secure home for Brett which it has been agreed will be once the mother has provided documentary evidence to the father that she has obtained tax credits for Brett, found a nursery place for Brett, found a two bedroom property to live in and found employment in the local area and until this happens, and not before 1 September 2007 in any event, Brett will continue to reside with the father.”

It is worthwhile to highlight other notable features of the agreement.

It states that both parties have parental responsibility for the minor child. There is a provision on the binding nature of the agreement and that it can only be varied by consent, in writing, or by order of court. There is also provision for the respondent's access to the minor child during school holidays.

In her founding affidavit the applicant states that she has met the stipulated conditions. Documentary evidence in support of the claim that the conditions were fulfilled was attached to the application. The documents consist of a letter from a nursery, a copy of a lease agreement, and proof of employment as well as proof of earnings. She further avers that despite having fulfilled the conditions the respondent has refused to return the child to her. She thus contends that the respondent's continued retention of the minor child constitutes an unlawful retention in terms of the Child Abduction Act [Chapter 5:05], and, in particular, Article 3 to the schedule thereof.

In her answering affidavit, the applicant made the additional averment that both she and the respondent had joint custody prior to the child being brought to Zimbabwe.

In his opposing affidavit, the respondent contends that the child has been in his sole custody since January 2007. He also contends that the applicant has not fully complied with the obligations imposed by the agreement. In particular, he points out that the applicant jointly leases residential accommodation with a third party such that if her relationship with the third party was terminated she might not be able to afford the rent for the property. Apart from contending that he is not in breach of the Child Abduction Act the respondent also contends that he did not bring the child to Zimbabwe in terms of the agreement with the applicant but he did so in his capacity as a co-guardian and custodian parent. He is also not satisfied with the contents of the annexures to the supporting affidavit. In addition, the respondent also contends that it is not in the interests of the minor child that it be returned to the applicant. The rest of the opposing affidavit deals with the reasons thereto.

It was submitted, on behalf of the applicant, that the retention of the child is wrongful in terms of Article 3 of the Convention on the Civil Aspects of International Child Abduction as such retention is in breach of the applicant's rights of custody under English law. An uncertified copy of the Children Act 1989 of the United Kingdom was annexed to the applicant's heads of argument….,.

It was also submitted that since the current proceedings were commenced eight months after the wrongful refusal the applicant is entitled to the prompt return of the child in terms of Article 12 of the Convention on the Civil Aspects of International Child Abduction. This is because in terms of Article 12, where proceedings are commenced within one year of the wrongful act the judicial or administrative authority shall order the child's return forthwith.

It was also submitted that the respondent has to show that a high degree of harm will result if the child's return is ordered or that a highly intolerable situation will result.

Finally, it was also submitted that the purpose of the present proceedings is not to consider the best interests of the child as if the court were determining the merits in a custody suit. Reference was made to the case of Secretary for Justice v Parker 1999 (2) ZLR 400 (H).

On the other hand, it was submitted, on behalf of the respondent, that since the child was not brought to Zimbabwe unlawfully, the applicant has to prove that the retention of the child is in violation of Article 3(a) of the Convention on the Civil Aspects of International Child Abduction. Since the purpose of the Convention is to return the child to the country of habitual residence, it was also submitted that the applicant has not proved that the child was habitually resident in the United Kingdom.

It was also submitted that the applicant must be bound by what she stated in her founding affidavit as she only raised the issue of joint custody in her answering affidavit.

As regards custody of the child whilst in the United Kingdom, it was submitted that it is the respondent who had custody during the week, with the applicant only exercising custody during weekends. Reference is made to the agreement which spells out the specific details of the respective custody rights of the parties.

The applicant's reliance on the English Children Act has been attacked on the ground that the statute was not adduced in accordance with Article 12 of the Convention on the Civil Aspects of International Child Abduction. According to this argument, expert evidence is required before any reliance can be placed on the foreign statute. There was also the contention that the applicant failed to prove that the child was habitually resident in the United Kingdom at the time the cause of action arose. As such, the argument was that the Convention does not apply to the facts of this case.

In respect of the terms of the agreement, two arguments were advanced on behalf of the respondent;

(a) The first one was that the applicant did not provide the tax credits in favor of the child.

(b) Secondly, it was contended that the applicant did not provide a secure home for the child. This is because the lease agreement is not in the applicant's sole name.

(c) Thirdly, it was also argued that the applicant did not secure employment 'in the local area' as required by the agreement.

There was also the additional argument that it has to be shown that the agreement has legal effect in the jurisdiction of the child's habitual residence for purposes of compliance with Article 3 of the Convention on the Civil Aspects of International Child Abduction. In this respect, it was submitted that the applicant failed to prove.

After arguments had been presented in this matter I directed the respective counsels to file additional heads of argument on the issue of whether the application is properly before the court.

This has been adequately answered by the respondent's counsel. Although she did not file supplementary heads of arguments, in her note to the Registrar she pointed out that the issue is covered by Article 29 of the Convention on the Civil Aspects of International Child Abduction. I am indebted to counsel for pointing out that provision which states that -

“This convention shall not preclude any person, institution or body who claims that there has been a breach of custody or access rights within the meaning of Article 3 or 21 from applying directly to the judicial or administrative authorities of a Contracting State, whether or not under the provisions of this Convention.”

The Child Abduction Act [Chapter 5:05] gives effect to the Convention on the Civil Aspects of International Child Abduction. The Convention is incorporated as a schedule to the Child Abduction Act. Article 3 of the Convention provides that -

“The removal or the retention of a child is to be considered wrongful where -

(a) It is in breach of the rights of custody attributed to a person, an institution or any other body, either jointly or alone, under the law of the State in which the child was habitually resident immediately before the removal; and

(b) At the time of removal or retention those rights were actually exercised, either jointly or alone, or would have been so exercised but for the removal or retention.

The rights of custody mentioned in subparagraph (a) above, may arise, in particular, by operation of law or by reason of a judicial or administrative decision, or by reason of an agreement having legal effect under the law of that State.”

I am not persuaded by the argument advanced by the respondent's counsel that for purposes of resolving the present dispute it must be accepted that the country of habitual residence of the minor child is Zimbabwe.

The agreement between the parties clearly states that they had joint custody of the minor child. Those rights of custody would have continued to be exercised jointly in the United Kingdom had the child not been brought to Zimbabwe. In this respect see Article 3(b) of the Convention on the Civil Aspects of International Child Abduction.

I agree with counsel for the applicant's submission that the term habitual residence must be accorded its ordinary meaning. I also agree with his submission (in the context of the facts of the present case) that it does not follow that where one leaves one's country of habitual residence then one loses that residence. It cannot follow, therefore, that the habitual residence of the child is Zimbabwe for purposes of determining whether the child has been wrongfully retained in terms of Article 3 of the Convention on the Civil Aspects of International Child Abduction.

I agree with the submission that the issue for determination here is not the custody rights of the parties. That issue is for the jurisdiction of the country of habitual residence of the child. As I understand it, the purpose of the present proceedings is to secure the prompt return of the child to a Contracting State if it is proved that the child has been wrongfully retained. In this respect see Articles 1 and 3 of the Convention on the Civil Aspects of International Child Abduction.

The matter cannot be determined on the basis of the best interests of the child. In this respect I agree with the reasoning of DEVITTEE J in the case of Secretary for Justice v Parker 1999 (2) ZLR 400 (H). Having made reference to Article 1 of the Convention on the Civil Aspects of International Child Abduction, the learned judge had this to say…,;

“The clear purpose of the Convention, as the preamble and Article 1 indicate, is to provide a mechanism to deal with situations where children are wrongfully removed from a jurisdiction in which they are habitually resident. I am bound, therefore, to endeavor to give maximum force to the purposes of the Convention.”

It was also submitted by the respondent's counsel that the foreign law availed by the applicant has not been authenticated in accordance with the provisions of the Child Abduction Act [Chapter 5:05]. She submitted that this was the procedure that was followed in Secretary for Justice v Parker 1999 (2) ZLR 400 (H) where the Lord Chancellor's Department provided an authenticated copy of the relevant statute when an application was made to the Secretary for Justice.

I agree that no reliance can be placed on the uncertified copy of the Children Act 1989 of the United Kingdom. However, to overcome this handicap, counsel for the applicant sought to rely on sections 24 and 25 of the Civil Evidence Act. He submitted that in respect of section 24(3), the court can take judicial notice of any fact that is not the subject of reasonable dispute. In this respect he cited Halbury's Laws of England, third edition as authority for the proposition that both the applicant and the respondent had parental responsibility in respect of the child in accordance with English law.

Counsel for the applicant further submitted that the provisions of the Civil Evidence Act should be read in conjunction with Article 14 of the Convention on the Civil Aspects of International Child Abduction. He further submitted that Article 14 should prevail over the provisions of the Civil Evidence Act. In this respect, he submitted that the Convention on the Civil Aspects of International Child Abduction is concerned with the expeditious resolution of disputes concerning children. Counsel for the applicant also submitted that in terms of section 24 of the Civil Evidence Act, the court may take judicial notice of certain matters that are not the subject of reasonable dispute. Thus, he urged the court to take into account Halsbury's Laws of England, Third Edition in respect of the law in the United Kingdom regarding custody rights.

The first paragraph of the agreement clearly states that both parties have parental responsibility over the child. This is a feature of English law as stated in Halsbury's Laws of England, Third Edition.

In the case of Chief Family Advocate and Another v G 2003 (2) SA 599 (W) the parties were married according to South African law. They had one child. They moved to Britain where they subsequently separated, with the child staying with the father. Without the mother's knowledge the father took the child back to South Africa where he promptly enrolled it at a school. The mother then obtained an order from the Family Law Division of the High Court to the effect that the child remained a ward of the court. SPILG AJ held that, according to the Children's Act 1989 of the United Kingdom, each parent has parental responsibility over a child born of their marriage. The learned judge also noted that, in the United Kingdom, parent-child relations are no longer founded on the basis of control but on the assumption of responsibilities. He further noted that this was well set out in Halsbury's Laws of England Vol. 5 (3), 4^th Ed.

Although the respondent contends that the applicant has not fully complied with the conditions of the agreement, there appears to be no basis for such argument. The agreement in respect of accommodation requires the applicant to secure a two bed roomed property. It is immaterial that the applicant shares the property with her partner. In any event that is an issue for determination by the court that determines who should have sole custody of the child should the dispute between the parties take that route. As regards the condition that the applicant must secure employment in the local area where she lives, the letter from the applicant's employer states that she works from home on a full time basis. In respect of child tax credit, the explanation is that the applicant cannot claim that until she starts living with the child. Apart from a generalized challenge, the respondent has not rebutted that explanation by way of any other contrary proof.

The return of a child may also be refused in terms of Article 13 of the Convention on the Civil Aspects of International Child Abduction which provides that -

“Notwithstanding the provisions of the preceding Article, the judicial or administrative authority of the requested State is not bound to order the return of the child if the person, institution, or other body which opposes its return establishes that -

(a) The person, institution, or other body having the care of the person of the child was not actually exercising the custody rights at the time of removal or retention, or had consented to or subsequently acquiesced in the removal or retention; or

(b) There is a grave risk that his or her return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation.

The judicial or administrative authority may also refuse to order the return of the child if it finds that the child objects to being returned and has attained an age and degree of maturity at which it is appropriate to take account of its views.

In considering the circumstances referred to in this Article, the judicial and administrative authorities shall take into account the information relating to the social background of the child provided by the Central Authority or other competent authority of the child's habitual residence.”

The respondent did not invoke this provision and confined himself to the contention that the applicant did not comply with the terms of the agreement they signed.

In the circumstances, I am satisfied that the requirements of the Convention on the Civil Aspects of International Child Abduction have been met. The application is therefore granted in terms of the draft order.

HH91-09 : SANANGURAI GWARADA vs KEVIN JOHNSON and MR WILLIAMSON and BERNARD CHOTO
Ruled By: GOWORA J

This matter came before me by way of an urgent chamber application.At the initial set down date, the legal practitioners indicated that they wished to file written submissions and the matter was accordingly postponed for that purpose.In view of the legal issues that were apparent from the affidavits, and that ...

HH95-10 : TIISO HOLDINGS (PTY) LIMITED vs ZIMBABWE IRON & STEEL COMPANY LIMITED
Ruled By: PATEL J

The plaintiff in this matter has issued summons for payment of the sum of EUR6,640,295=94 together with interest and costs of suit.

The claim arises pursuant to a default judgment of the Regional Court of Frankfurt entered in favour of Kreditanstalt fur Wiederaufbau (KFW) as against the defendant on 25 July 2006.

On 20 May 2008, KFW assigned its rights in the judgment to the plaintiff.

The latter then obtained judgment on the Frankfurt award for an equivalent sum in the High Court of Botswana on 5 June 2009.

The defendant has not satisfied either the Frankfurt or the Botswana judgment.

The plaintiff's claim in this Court is founded on the Frankfurt judgment.

The defendant has filed a Plea in Abatement challenging the enforceability of that judgment on various grounds.

At the hearing of this matter, counsel for the defendant abandoned several of these grounds relating to, inter alia, the impact of the in duplum rule on the interest claim, the non-payment of security for costs by the plaintiff as a peregrine suitor, and the non-enforceability of the Botswana judgment. The last aspect was not pursued in light of the concession by counsel for the plaintiff that its claim was premised solely on the Frankfurt award and not on the Botswana judgment.

Following these concessions, the issues for determination in casu are as follows:

(a)...,.

(b)...,.

(c) Whether the Frankfurt judgment is contrary to natural justice because of the failure to serve court process properly or at all....,.

Service of Court Process

A foreign judgment will not be recognised or enforced where it is shown, on a balance of probabilities, that it was obtained contrary to the rules of natural justice: see VAN WINSEN, CILLIERS & LOOTS: The Civil Practice of the Supreme Court of South Africa (4th ed. 1997)…,.; Corona v Zimbabwe Iron & Steel Co. Ltd 1985 (2) SA 423 (TkA)…,.

In particular, although a mere procedural irregularity will not debar recognition, there must have been reasonable notice of the proceedings to the persons affected and adherence to the audi alteram partem principle: see JOUBERT (ed.): The Law of South Africa (First Reissue, 1993) Vol. 2 …,.

The defendant herein avers that it was not properly served with legal process instituting KFW's claim in the Frankfurt court.

However, this averment is clearly belied by the certified translation of the Frankfurt court's ruling (at p.5), wherein it is explicitly stated that the defendant was served with the Complaint on 10 April 2005, and, having been required to answer the Complaint within seven (7) weeks, did not give any indication of its willingness to defend within that time limit.

There is nothing in the papers to counter this position.

It follows that the defendant has failed to establish, on a balance of probabilities, any fundamental violation of the rules of natural justice such as to warrant the non-recognition of the Frankfurt judgment.

HH114-10 : IAN SPENCE GRAY and PRINCIPLE BASED SOLUTIONS P/L vs THE REGISTRAR OF DEEDS
Ruled By: GOWORA J

The authority which counsel for the applicants has placed reliance is in Afrikaans, and, despite request from me, he has refused to furnish the court with a translation of the judgment; his view being that the court can read the minority judgment by TROLLIP A.R. In view of the fact that his whole argument ...

HH192-15 : JAMILA MOKBEL vs HASSAN MOKBEL
Ruled By: UCHENA J

The applicant and the respondent married each other in 1997. They married in Lebanon, according to Islamic Religious Law of the Jaafari Confession. They divorced in terms of a release contract dated 16 August 2012. They are both Lebanese but both stayed in Zimbabwe before divorce and the respondent still does. The applicant and the children born ...

The applicant and the respondent married each other in 1997. They married in Lebanon, according to Islamic Religious Law of the Jaafari Confession.

They divorced in terms of a release contract dated 16 August 2012. They are both Lebanese but both stayed in Zimbabwe before divorce and the respondent still does. The applicant and the children born to the marriage now stay in Lebanon. The applicant is however not staying with her children as they stay with their step mother, the respondent's new wife. The applicant was aggrieved by the respondent's placing of the children under his new wife's custody and her being denied access to them.

The applicant, relying on a document purporting to annul the original release agreement on terms which had not yet been implemented as at 31/3/2014, applied to this court for an order granting her custody of their minor children, namely, N Mokbel born 5 October 1998; O Mokbel born 30 March 2001; P Mokbel born 20 November 2004; and Q Mokbel born 7 September 2007.

Counsel for the respondent submitted that this court has no jurisdiction and cannot hear this application because the document being relied on by the applicant was fraudulently obtained and was appealed against.

Counsel for the applicant submitted that the appeal noted by the respondent is not valid because of the way it was worded.

Counsel for the respondent's response, which was prompted by the court asking the parties to address it on the effect of section 25 of the Civil Evidence Act [Chapter 8.01] on this case, was that this court cannot take judicial notice of foreign law, and cannot therefore, without hearing evidence to prove that foreign law, determine whether or not the appeal referred to is valid or not.

Section 25 of the Civil Evidence Act [Chapter 8:01] provides as follows;

“(1) A court shall not take judicial notice of the law of any foreign country or territory, nor shall it presume that the law of any such country or territory is the same as the law of Zimbabwe.

(2) Any person who, in the opinion of the court, is suitably qualified to do so on account of his knowledge or experience shall be competent to give expert evidence as to the law of any foreign country or territory, whether or not he has acted or is entitled to act as a legal practitioner in that country or territory.

(3) In considering any issue as to the law of any foreign country or territory, a court may have regard to —

(a) Any finding or decision purportedly made or given in any court of record in that country or territory, where the finding or decision is reported or recorded in citable form; and

(b) Any written law of that country or territory; and

(4) The law of any foreign country or territory shall be taken to be in accordance with a finding or decision mentioned in paragraph (a) of subsection (3), unless the finding or decision conflicts with another such finding or decision on the same question.

(5) For the purposes of paragraph (a) of subsection (3), a finding or decision shall be taken to be reported or recorded in citable form only if it is reported or recorded in writing in a report, transcript or other document which, if the report, transcript or document had been prepared in connection with legal proceedings in Zimbabwe, could be cited as an authority in legal proceedings in Zimbabwe.”

Section 25(1) of the Civil Evidence clearly bars this court from taking judicial notice of foreign law or presuming that the law of another country is the same as the law of Zimbabwe.

Counsel for the respondent is therefore correct when he says we cannot presume that Lebanese notices of appeal should be done in the way they are done in Zimbabwe. It cannot therefore be said, without proving Lebanese Law, that the notice of appeal is invalid.

Section 25(3) of the Civil Evidence Act prescribes the procedure a party should follow in proving foreign law. In spite of that clear procedure, counsel for the applicant did not take her allegations any further besides insisting on the applicant's application being heard and granted as custody issues are the same irrespective of the foreign law aspects raised by counsel for the respondent.

The need to prove Lebanese law was very important in this case because of the type of marriage the parties entered into and the law applicable to both divorce and custody in Lebanon which is faith-based and has specific provisions on who between the spouses should have custody.

This court cannot hear and determine a case based on foreign law before that foreign law which it must use to determine the case has been proven. We are in this case dealing with existing Lebanese court orders based on Islamic Law which this court can only deal with after the applicant leads evidence on it. Proceeding without such evidence, as suggested by counsel for the applicant is unlawful and leads to the danger of contradicting existing orders of foreign courts granted by judicial officers who are fully aware of the import of their country's laws.

The pitfalls are demonstrated by the following;

1. The marriage is in terms of Islamic Religious Law in Lebanon-Jaafari Confession which the applicant did not prove to this court.

2. The invalidity of the respondent's appeal has not been proven before this court. It is insufficient to rely on the respondent's wording to attack the validity of process based on foreign law.

3. Even if the appeal had been proved to be invalid, the issue of custody had to be proved to not have been implemented at the time the annulment of the release agreement is alleged to have taken place. The fact that the respondent is already exercising custody through his new wife seems to indicate that custody is not an outstanding issue.

4. Part of the contract, on page 15 of the record, states that “this contract, with all what relates or derives therefrom, as issues in Lebanon or the State of Zimbabwe, shall be subject to the Lebanese Law, and more particularly the Islamic legal rules-the Jaafari Confession, regarding divorce and its effects,” which this court cannot take judicial notice of.

5. The Release agreement, on page 12 of the record, provides for the “divorce execution, according to the texts of the Islamic Law in Lebanon-Jaafari Confession only, while excluding any other rules and laws, including the State of Zimbabwe.”

This means the application of Zimbabwean laws is specifically excluded by the Release Agreement.

The applicant's counsel should therefore have seriously considered our own section 25 of the Civil Evidence Act referred to above and this clause before recklessly bringing this application and pursuing it to a hearing before this court without complying with section 25 of the Civil Evidence Act.

6. On the issue of custody, the Release Agreement specifically states, on page 12 that; “the first party (respondent) is the compulsory tutor of the children,” and Annexure B, on page 37, describes the respondent as the children's 'mandatory custodian', suggesting that custody under Islamic Law is prescribed by the law. This means evidence had to be led on the applicable foreign law.

7. The alleged annulment agreement, document on page 18, specifically states that “each of the two parties has the right to resort to the competent court in Lebanon or abroad, to preserve their rights and consider the terms of the agreement that have not been implemented as if they didn't exist.”…,.

The respondent has been exercising custody rights as demonstrated by the children being in his new wife's custody. It therefore seems this part of the agreement has already been implemented and can therefore not be covered by the alleged Annulment Agreement.

I am therefore satisfied that the applicant's application cannot succeed....,.

It is therefore ordered as follows;

1. That the applicant's application be and is hereby dismissed.

HH213-18 : BULCHIMEX GmbH IMPORT-EXPORT CHEMIKALIEN und PRODUKTE and TECHNOIMPEX SOFIA BULGARIA JSC vs BULCHIMEX GMBH IMPORT EXPORT CHEMIKALIEN und PRODUKTE PL and SARAH HWINGWIRI and R. JOGI
Ruled By: MANGOTA J

The applicants are foreign legal entities. The first is a German company. It is owned by a Bulgarian Corporation. The second is a Bulgarian entity. It is a subsidiary of the first.

Until 22 November 2017 the first applicant was the owner of a certain piece of land which is situated in the district of Salisbury. The piece of land is called Stand Number 295, Northwood Township 2 of Sumbeni. It was held under Deed of Transfer number 5022/2008. It is commonly known as Number 116 Twickenham Road, Mount Pleasant, Harare [“the Mount Pleasant property”].

On 9 December 2013 one Rajendrakumah Jogi [Jogi] purchased the property. He took title in the property on 22 November 2017 following its sale to him. It is now registered under Deed of Transfer number 4766/17 which Deed records the name of the purchaser as the new owner of the same.

The second applicant was, and still is, the owner of a certain piece of land which is situated in the district of Salisbury. It is called Lot 12 of Lot 15 Block C of Avondale. It is held under Deed of Transfer number 1657/89. It is commonly known as Bath Mansions Flats. It is at Number 32, Bath Road, Avondale, Harare [“The Avondale property”].

The abovementioned two properties lie at the centre of the main application, HC12074/16 and the urgent chamber application, HC2012/18.

The applicants filed the main application on 28 November 2016. They successfully moved the court to interdict the first and second respondents from dealing in any way with the two properties and/or from coming within 100 metres of the same. The interim order which the applicants obtained in the mentioned regard is dated 2 December 2016.

On 22 February 2018 l heard the matter which related to the confirmation or discharge of the provisional order of 2 December 2016. Having heard submissions from both parties, I reserved judgment.

Before the ink which related to my hearing of the main application had dried up, the applicants filed the urgent chamber application, HC2012/18. They did so on 5 March 2018. They moved the court to restore to them possession of the Mount Pleasant property and to interdict:

(a) The first (Bulchimex GMBH Import Export Chemikalien und Produkte (Pvt) Ltd), second (Sarah Hwingwiri) and third (Rajendrakumar Jogi) respondents from selling, or, in any way, alienating or encumbering the Mount Pleasant property.

(b) The fourth respondent (Registrar of Deeds) from facilitating or making further transfer of the Mount Pleasant property which is held under Deed of Transfer number 4766/17 in favour of Rajendrakumah Jogi to anyone.

(c) All the respondents from facilitating or transferring title in the Avondale property which is registered under Deed of Transfer number 1637/89 to anyone.

(d) The fifth respondent (the Sheriff of Zimbabwe) from evicting occupants of the Avondale property.

Because title in the Mount Pleasant property had already changed hands from the first applicant to Mr Jogi when the application was filed, I disallowed paragraphs 1, 2 and 3 of the applicants draft order.

I allowed paragraphs 6 and 9 of the draft order with some amendments. I directed that the word Lease which appeared in paragraph 6 should be deleted. I further directed that the phrase or 116 Twickenham Drive, Mount Pleasant, Harare which appeared in paragraph 9 should also be deleted.

I, accordingly, allowed paragraphs 4, 5 and 6 as amended, 7, 8, 9 as amended and paragraph 11 to remain as the interim relief for the applicants.

The interim order was issued with the consent of all the parties.

My reading of the record satisfied me that HC2012/18 was urgent.

The applicants stated that they were not aware that their Mount Pleasant property had been sold and transferred to someone. They said they became aware of that fact on 1 March 2018 when the deponent to their founding affidavit received a call from one Kudzai Kupambana, the caretaker of the property. He submitted that Mr Kupambana informed him that the Messenger of Court was carrying out eviction at the premises. He said he immediately notified the applicants' legal practitioners of the development. These and him, he said, visited the Mount Pleasant property. He averred that the legal practitioners and him later established that it was not the Messenger of Court but the Deputy Sheriff who had carried out the eviction.

The supporting affidavit of Mr Kubambana was on all fours with that of the deponent of the founding affidavit especially on the portion which related to the latter's eviction.

The applicants filed the urgent chamber application a day after their discovery of what had occurred. They most certainly treated the matter with the urgency which it deserved.

The first, second and third respondents opposed the urgent chamber application. They, however, and to their credit, consented to the interim relief which I granted to the applicants in its amended form. They did so in the interests of progress. They agreed with me that the situation had to be arrested. All the parties shared the view which the court had. The view was that the situation of the parties' case did not have to get out of hand whilst judgment in the main application, HC12074/16, was being awaited.

Two characters stand out clearly in both applications. These are;

(1) One Borislav Boynov (“Borislav”); and

(2) One Sarah Hwingwiri (“Sarah”).

Borislav Boynov is the deponent to the founding and the answering affidavits of the applicants. He is so for the main application as well as the urgent chamber application.

Sarah Hwingwiri is the second respondent in both applications. She is the deponent to the affidavits of the first and the second respondents in both applications.

Sarah Hwingwiri and one Ivan Pantchev (“Ivan”), a Bulgarian who is domiciled in Bulgaria, registered the first respondent in terms of the laws of Zimbabwe. They are both its Directors.

Borislav Boynov's averments, in the main application, were that the applicants own the Mount Pleasant and the Avondale properties. He said they also used to own a certain piece of land which is situated in the district of Salisbury called Lot 9 of Lot 9 of Glen Lorne measuring 4,047 square metres [“the Glen Lorne property”]. This, he alleged, was sold by Sarah Hwingwiri and Ivan Pantchev for $150,000 and transferred into the name of the purchaser.

The sale, he stated, was with the authority of the applicants.

He submitted that Sarah Hwingwiri and Ivan Pantchev did not transmit the proceeds of the sale to the applicants. He successfully moved the court to grant to the applicants the provisional order which prohibited the first and the second respondents from dealing, in any way, with the remaining two properties as well as from coming within 100 metres of the same. He, in the final order, prayed that:

(i) The first applicant be declared the owner of the Mount Pleasant property;

(ii) The second applicant be declared the owner of the Avondale property; and

(iii) The first and second respondents be declared to have no ownership rights or interests in either property....,.

They submitted that the first applicant and the first respondent were two separate legal entities.

They stated that the annexures which the respondents used to support their case were forged documents. They insisted that the annexures which were purportedly deposed to outside Zimbabwe violated section 3 of the High Court [Authentication of Documents] Rules, 1971. They contended that the documents/annexures were not notarised.

They moved the court not to allow the respondents to use them as evidence which supports the latter's case....,.

My first observation relates to the resolution which the respondents passed.

The resolution confers authority on Sarah Hwingwiri to depose to their opposing affidavits. It raises more questions than it provides answers to them. It appears at page 114 of the record. The respondents called it Annexure A.

A reading of the annexure with what Sarah Hwingwiri stated in the first paragraph of the opposing affidavit shows the effort and the extent to which the respondents went to mislead the court. She stated:

“I, the undersigned, SARAH HWINGWIRI, do hereby make oath and state as follows:

1. I am the second Respondent in this matter and I have been authorised to depose to this affidavit on behalf of the 1st Respondent by virtue of a company resolution attached hereto as Annexure A….,.”…,.

The annexure, it is evident, is not that of the first respondent who allegedly authorised Sarah Hwingwiri to depose to the opposing affidavit. It is that of the first applicant.

The question which arises is; who, between the first applicant and the first respondent, authorised Sarah Hwingwiri to depose to the opposing affidavit?

The respondents left that critical issue not only unanswered but also unresolved.

I mention, in passing, that the first applicant could not have authorised Sarah Hwingwiri to depose to the opposing affidavit. It could not do so when it sued the first respondent and her. It could not, in other words, approbate and reprobate, and, at the same time, remain relevant to this application.

The first applicant and the first respondent have similar names. There is, however, a marked difference between the two legal entities. The difference lies in that the first respondent's name ends with the phrase (Private) Limited.

The second question which arises is whether it was by design or by accident for the respondents to have cited the name of the first applicant in their resolution.

The probabilities are that it was more by design than it was by accident. The citation was deliberate. It aimed at confusing issues especially in the mind of unsuspecting readers of the resolution.

It is my considered view that Sarah Hwingwiri must have realised the folly of the resolution of 29 November 2016 (i.e. Annexure A). It was for the mentioned reason, if for no other, that she refrained from repeating the same in all subsequent affidavits which she filed in opposition to any application which related to the two properties.

She, for instance, stated, in the opposing affidavit which she filed on 3 January 2017, as follows:

“I, SARAH HWINGWIRI, duly sworn do hereby take oath and state as follows:

1. I am the second respondent and a director of the first respondent. I am therefore authorised to depose to this affidavit on my behalf and on behalf of the 1st Respondent.”

She stated, in her opposing affidavit to the urgent chamber application, as follows:

“I, the undersigned, SARAH HWINGWIRI, duly sworn do hereby take oath and state as follows:

1. I am the second respondent in this matter. I also have authority to depose this affidavit on behalf of the 1st Respondent by virtue of being its director.”…,.

Sarah Hwingwiri did not mention the person who authorized her to depose to the first of the above mentioned two affidavits. She produced no resolution which conferred authority upon her to act for the first respondent. All she said was that she was authorised to depose to the affidavit on behalf of the first respondent.

Sarah Hwingwiri stated, in so far as HC2012/18 was concerned, that she had the authority to depose to the affidavit on behalf of the first respondent by virtue of being its Director.

The correct position of the matter is that she could not confer any authority upon herself. She could not even do so in her capacity of Director of the first respondent.

It is a trite position of Company Law that a Director cannot confer authority upon himself or herself to act for, and on behalf of, the company on the basis that he/she is a Director of the same. If that was the case, then each Director would, at his/her whim, drag his/her company to court as he/she pleases. Such an undesirable development would run against the concept of good corporate governance which lies at the centre of any business enterprise as well as Company Law.

The respondents did not mince their words in their criticism of the applicants' case.

They indicated that the application was fatally defective for want of a resolution which authorised Borislav Boynov to depose to the founding affidavit. They drew the court's attention to the importance of the resolution which they said was/is a sine qua non aspect of motion proceedings.

They spoke eloquently on the matter. They referred me to a number of case authorities which stressed the importance of the resolution in an application.

Among the cases which they cited in their heads, and in support of the necessity for a resolution, was that of Madzivire & Ors v Zvaridza & Ors 2005 (2) 514 (S)…, which stated as follows:

“…,. A company, being a separate legal persona from its Directors cannot be represented in a legal suit by a person who has not been authorised to do so. This is a well-established legal principle which the courts cannot ignore….,.

The fact that the first appellant is the Managing Director of the fourth appellant does not clothe him with the authority to sue on behalf of the company in the absence of any resolution authorising him to do so.

In Burstein v Yale 1958 (1) SA 768, it was held that the general rule is that Directors of a company can only act validly when assembled at a Board meeting.”…,.

The respondents also referred me to the case of Dendeuka v Paper Place (Pvt) Ltd HH195-11 in which BHUNU J …, made some incisive remarks on the need for a company resolution. The learned judge said:

“The position in our law is…, that a company, being a fictitious legal persona, cannot act on its own. There is therefore need for a company resolution to legalize and validate any company acts…,.”

The last case which the respondents were pleased to draw my attention to on the matter was that of Tapson Madzivire and 3 Ors v Misheck Brian Zvarivadza and 2 Ors HH 2005 wherein MAKARAU J…., stated:

“The fictional legal persona (i.e. a company) still enjoys full recognition by the courts. Thus, for any acts done in the name of a company, a resolution duly passed by the Board of Directors of a company has to be produced to show that the fictional persona has authorised the act.”…,.

The applicants complied with the principles which were enunciated in each of the above cited three cases. They produced two resolutions which conferred authority on Borislav Boynov to depose to their affidavits.

The respondents, on the other hand, produced no resolution.

They, for a start, produced what purported to be the first respondent's resolution. This was, however, not such. They produced no resolution at all for the subsequent affidavits which they filed in opposition to the main and the urgent chamber applications.

It is accepted that Sarah Hwingwiri is a Director of the first respondent. She could not, however, confer authority upon herself to speak for, and on behalf of, the first respondent. She required a resolution for the purpose. She required the input of Ivan Pantchev for any resolution which she would have produced to remain valid. Ivan Pantchev's views were left out of the equation on the issue of the respondents' resolution.

The third question which arises from the above analysed matter is whether or not the respondents are properly before the court.

They passed no resolution authorizing Sarah Hwingwiri to speak for them. The first respondent is, by virtue of the stated fact, out of court.

I am pleased to refer the respondents to Macfoy v United Africa Co Ltd (1961) 5 ALL ER 1169 (PC) 1172 in the mentioned regard. The remarks of LORD DENNING, which he made in the case, are relevant to their situation. The learned LORD JUSTICE said:

“If an act is void, then it is a nullity. It is not only bad but incurably bad….,. It is automatically null and void without more ado….,. You cannot put something on nothing and expect it to stay there. It will collapse.”

Apart from the invalidity of the respondents' resolution, no evidence was produced to show that the first respondent's two Directors – Ivan Pantchev and Sarah Hwingwiri – sat down in some room to pass any resolution. Ivan Pantchev is a Bulgarian who is domiciled in Bulgaria. Sarah Hwingwiri, as a Zimbabwean, stays in this country.

The applicants' unchallenged statement was that Ivan Pantchev came to Zimbabwe at their instance. They said he left for Bulgaria and returned to Zimbabwe at the end of November 2013 to sell the Glen Lorne property. He, according to them, returned to Bulgaria after the sale. They submitted that he has not returned to Zimbabwe again.

The respondents did not challenge the above-mentioned averments of the applicants. They remained mute on the same.

By not challenging the applicants' assertions, the respondents admitted that Ivan Pantchev did not come to Zimbabwe. He, in other words, did not return to Zimbabwe after he had sold the Glen Lorne property. He, in short, did not sit down with Sarah Hwingwiri to pass a resolution authorising her to depose to the opposing affidavits.

The long and short of the above described matters is that the first respondent is not before the court. It is out of court. The opposing papers are, therefore, those of Sarah Hwingwiri alone.

The matter remains between the applicants and Sarah Hwingwiri. It excludes the first respondent in toto.

Annexure C, which the applicants attached to the application, shows that the first applicant was, until 22 November 2017, the owner of the Mount Pleasant property. It purchased it in 2008. It had it registered in its name.

Annexure D shows that the second applicant was, and still is, the owner of the Avondale property. It purchased it in 1989. It retained title in the same from the mentioned period of time to date.

Annexure E shows that the first applicant was the owner of the Glen Lorne property. It purchased it in 2008. Sarah Hwingwiri and Ivan Pantchev sold it to someone at the instance of the applicants. They sold it for $150,000.

Sarah Hwingwiri's averments were that the first respondent was the owner of the Mount Pleasant property. She attached Annexure A to her opposing papers. The annexure, she said, constitutes proof of the fact that the applicants conferred upon her the authority to run the affairs of the two properties on their behalf.

The applicants denied having ever conferred any authority on Sarah Hwingwiri to manage their two properties. They submitted that Borislav Boynov was, and remained, their point-man in Zimbabwe. They said he had their authority to look after their two properties.

Sarah Hwingwiri's claims were that the applicants authorized her to manage the affairs of their two properties which are in Zimbabwe. She produced four documents which she said conferred the requisite authority upon her. The documents comprise:

(a) Annexure A which is a letter which Ivan Pantchev and one Ivo Kamenov Georgiev signed. The capacity in which they signed it was not stated. It is dated 6 September 2016. Its heading reads:

RE: CONFIRMATION AS MANAGER OF THE BULCHIMEX GMBH IMPORT CHAMUKALIEN UND PRODUKTE'S PROPERTIES IN ZIMBABWE…,.

(b) Annexure A1 is a resolution of three legal entities.

These are the first applicant, the first respondent, and the second applicant. It is dated 12 December 2016. It was passed by Ivo Kamenov Georgiev and Ivan Kostadinov Pantchev. Its paragraph 3 stated that the first applicant and the first respondent were one and the same entity. It authorised Sarah Hwingwiri to give effect to any of the companies' resolutions pertaining to the properties as the only Director representing the interests of the organisation in Zimbabwe.

(c) Annexure A2 is a resolution which Ivan Pantchev signed. It is dated 12 December 2016. It was passed by the first applicant and the first respondent. It authorised Sarah Hwingwiri to “represent the company in the court cases including hiring legal practitioners in cases pertaining to the company's properties in Zimbabwe.”

(d) Annexure A3 is an affidavit which Ivo Kamenov Georgiev deposed to on 12 December 2016. He did so as Director of the first applicant. He confirmed Sarah Hwingwiri as their “lawful representative including management of all our properties in Zimbabwe.”

The applicants dis-associated themselves from the above-mentioned four annexures. They said the annexures were a result of Sarah Hwingwiri's resourcefulness. They described them as a fraud and a forgery by her. They submitted that she crafted them with a view to stealing from them their properties through the first respondent in which she is a Director.

The applicants' Annexure M3 is a declaration by one Maria Ilieva Vladimirova who said she was the first applicant's manager and legal representative.

She stated that she was appointed to her position on 28 August 2015. She averred that she had exercised her full rights to represent the first applicant before any third parties, to manage its day-to-day business affairs and to supervise its documentation as well as documentation and record keeping. She stated, in an emphatic manner, that the first applicant's Board of Directors had not adopted any resolution and had not taken any action for incorporation and registration of any daughter company into the first applicant or related parties to it in Zimbabwe. She denied that the first applicant gave any power of attorney or any letter of authorization to Sarah Hwingwiri or to Ivan Pantchev. She stated that the first respondent had no relationship at all with the first applicant. The first respondent, she said, was not even a subsidiary of the first applicant.

She denied that the first applicant ever gave any authority to Ivan Pantchev or Sarah Hwingwiri to manage or sell any of its two properties.

Annexure O, which the applicants attached to the application, is a declaration by one Ivo Kamenov Georgiev. He said he was, until 27 August 2015, manager and legal representative of the first applicant. He stated that he was in that position from 2006 – 27 August 2015. He declared that Sarah Hwingwiri's Annexures A, A1, A2 and A3 were untrue and un-authentic. He said the signature which appeared as his in any of the annexures was not his own. He said:

“1.1 I am referred to as the authoriser who has allegedly confirmed the powers of Sarah Hwingwiri as a manager of the company's property in Zimbabwe. As indicated therein, the letter was produced on 6 September 2016. It is inconsistent with the fact (obviously due to the ignorance and a lack of information of its author) that on 28 August 2015 I was released as a manager and a legal representative of the company…,.

1.2 The second document is a translation of minutes (a Board resolution) into English language dated 12 December 2016 bearing the letterhead of Timeset Ltd a Bulgarian translation agency, which purportedly made that translation into English language.

The original minutes, subject to the translation, again, is missing and not appended thereto…,.

Furthermore, a joint meeting of three legal entities of different nationalities resolving together on matters concerning their private business affairs and properties, in one and the same document, is an absolute distortion of their actual corporate rules as well as legally unacceptable from the stand point of the corporate laws governing the Germany company said above, the Bulgarian Company, Technoimpex JSC (wrongly stated to be incorporated in Germany, and a Zimbabwean Company Bulchimex GMBH Import-Export Chemikalien and Produkte (Pvt) Ltd.

It is important to be noted that the name of the said Zimbabwean company closely resembles the name of the German Company, but, as a matter in fact, it has nothing to do with the German Company (as well as the Bulgarian Company) it has no place in such a joint meeting with them because it is neither a subsidiary of nor a related party to the German Company (or the Bulgarian Company Technoimpex).

It is also important to be mentioned that in this translation of the minutes I am referred to as a Director of the said three companies, but, in fact, I have never been a Director/Manager of the Bulgarian and the Zimbabwean companies. Ivan Kostadinov Pantchev has never been a Director /Manager of the German company. In addition, as indicated therein, the minutes were produced on 12 December 2016. It is inconsistent with the fact that on 28 August 2015, I was released as a manager and a legal representative of the company…,.

In conclusion, the document is false.”…,.

Mr Georgiev discounted annexures A2 and A3 which Sarah Hwingwiri purported to rely upon with clear and uncontroverted evidence.

The applicants' Annexure S was a declaration by one Dimitar Ivannov Tourlakov. He is the owner, manager, and legal representative of TIMSET Ltd.

He denied having ever received, let alone translated, Sarah Hwingwiri's annexures from any language into the English language. He said the four annexures did not exist in his company's records. He stated that he did not sign or issue those. His conclusion was that the four annexures were untrue and unauthentic. He pointed out seven inconsistencies which he said they contained.

I cited in extensor the declaration of Ivo Kamenov Georgiev. I did so as he was alleged to have authorised Sarah Hwingwiri to handle the affairs of the applicants' two properties. He and Ivan Pantchev had their names repeatedly mentioned in the annexures.

His conclusion, with which the court agrees, was that the annexures upon which Sarah Hwingwiri relied were not authentic at all.

Sarah Hwingwiri did not challenge, or even comment upon the declarations of Maria Ilieva Vladimirova, Ivo Kamenov Georgiev and/or Dimitar Ivannov Tourlakov.

The declarations contained information which seriously damaged her case. They called for a response which Sarah Hwingwiri did not ever make.

The law is very clear on such a matter as has been stated in the foregoing paragraph. It states, as trite, that what has not been denied in affidavits is taken as having been admitted. See Fawcett Security Operations v Director of Customs & Excise 1993 (2) ZLR 121 (SC); DD Transport v Abbot 1988 (2) ZLR 92; Remo Investment Brokers (Pvt) Ltd v Securities Commission of Zimbabwe SC85-14.

Mr Georgiev stated that he was no longer working for the applicants when the annexures of Sarah Hwingwiri came into existence. He denied that he authored Annexures A, A1 and/or A3. He stated, and I agree, that the annexures were a forgery. He could not have produced any of the annexures when he had ceased to work for the applicants.

That the annexures were a forgery is evident from their contents.

Annexure 1, for instance, does not mention the name of the place where it was passed - if it was. It does not mention the names of the Directors who attended the meeting on behalf of the first applicant, the first respondent and/or the second applicant.

A meeting of such serious magnitude, with such far reaching consequences, requires real, as opposed to fictitious, evidence that it was held and that the participants took a clear and unequivocal decision to merge the first applicant with the first respondent. It could not be plucked from thin air as Sarah Hwingwiri would have the court believe.

Sarah Hwingwiri did not explain the position of Mr Georgiev in the alleged meeting where the resolution was purportedly passed. He was not a Director of the first or the second applicant. He was a manager and legal representative of one of the applicants. He had ceased to be such when the resolution was allegedly passed. How he was able to communicate to her the contents of the resolution, in December 2016, when he had vacated his office on 27 August 2015, stretches the mind of anyone - that of the court included.

Sarah Hwingwiri stated, in her opposing papers, that she was in constant communication with Ivan Pantchev. She said she communicates with him through emails. She did not explain why she did not call upon him to substantiate the contents of her Annexure 2.

Sarah Hwingwiri's Annexure 2 describes Ivan Pantchev as a Director of the first applicant. It reads, in part, as follows:

“Today, 12 December 2016, the undersigned, Ivan Kostadinov Pantchev…, in his capacity as Director of BULCHIMEX GMBH IMPORT CHEMIKALIEN UND PRODUKTE, a company duly established…,.”…,.

Paragraph 2 of Sarah Hwingwiri's Annexure 3 changes the position of Ivan Pantchev from that of a Director to that of a manager. The annexure which was allegedly deposed to by Mr Georgiev reads, in the relevant part, as follows:

“2. I confirm that through our manager Ivan Kostadinov Pantchev…, Sarah Hwingwiri…, to be our lawful representative including management of all our properties in Zimbabwe.”…,.

It requires little, if any, effort to realise that the papers which Sarah Hwingwiri purports to rely upon are not authentic. They are, if anything, a product of her own fertile mind. She authored them herself. Her aim and object were, as the applicants stated, to reach out to their properties in an unlawful manner, take charge of the same, and deal with them as she pleased.

The documents which she referred to as annexures appeared to have been prepared in a hurried manner. They, in the process, failed to capture some salient features of, for instance, the correct name of the first applicant. Its name, in its correct form, reads: BULCHIMEX GmbH IMPORT-EXPORT CHEMIKALEN und PRODUKTE. The same name as Sarah Hwingwiri wrote in her annexures reads as follows:

(i) Annexure A1: BULCHIMEX GMBH IMPORT CHEMIKALIEN UND PRODUCKTE. The following variations are noted;

(a) GmbH is written as GMBH.

(b) Import-Export is written as Import only. The word Export is left out.

(c) und is written as UND; and

(d) Chemikalen is written as Chemikalien.

(i) In Annexure A1 – Sarah Hwingwiri repeated the same errors.

(ii) In Annexure A2 – Sarah Hwingwiri repeated the same errors.

(iii) In Annexure A3 she repeated the same errors.

A reading of the above shows that her intention was to show that her Zimbabwean company, along which she fashioned the name of the first applicant, was the same as the latter. She failed dismally to achieve her intended end-in-view in the mentioned regard. The two entities, it has already been observed, are separate and distinct from each other. They are not, and can never be, the same.

The word Chemikalien which appears in the abovementioned annexures of Sarah Hwingwiri also appears in the memorandum of agreement of sale which is at p156 of the urgent chamber application....,.

The applicants were, therefore, not far off the mark when they stated that the documents/annexures were a fraud which emanated from Sarah Hwingwiri's forgery. The annexures are nothing but that. The fact that Timeset, which is a Bulgarian translation agency, did not translate those confirms the view which I hold of the matter.

HH95-10 : TIISO HOLDINGS (PTY) LIMITED vs ZIMBABWE IRON & STEEL COMPANY LIMITED
Ruled By: PATEL J

Finality and Conclusiveness of Frankfurt Judgment

The defendant avers that the judgment that the plaintiff seeks to enforce is ex facie not one that is final and conclusive, and, as such, it cannot be enforced in casu.

In this respect, it is specifically pleaded by the plaintiff, in paragraph 4 of its Declaration, that the Frankfurt judgment “is final in its terms and remains valid and effective.” Consequently, it is submitted, by counsel for the plaintiff, that the defendant cannot challenge the validity and finality of the judgment by way of special plea and can only raise that issue on the merits.

It is further argued, by counsel for the plaintiff, that the finality or otherwise of the judgment under German law is a matter for the defendant to establish. This contention is disputed by counsel for the defendant who submits that the burden in this regard falls squarely on the plaintiff.

The requirement of finality and the burden of proof in that regard are lucidly adumbrated by JOUBERT (ed.): The Law of South Africa (First Reissue, 1993) Vol. 2…,:

“A foreign judgment will not be enforced unless it is a final judgment and has the effect of res judicata according to the law of the forum that pronounced the judgment. The fact that it is subject to appeal does not affect its finality for the purposes of recognition, but, if an appeal is actually pending, the South African court will probably exercise its discretion not to recognise the judgment. Finality must be alleged and proved by the party seeking to enforce the judgment.”

According to FORSYTH: Private International Law (4th ed.)…,:

“A provisional judgment of an internationally competent foreign court will not be enforced or recognised.

After all, it would be undesirable if the foreign court's judgment were enforced, and, thereafter, the foreign judgment was set aside or altered by the court which made it in the first place. Consequently, any foreign judgment must be final and conclusive before it will be recognised or enforced.

Our courts have largely accepted the English principles in this regard; thus, what is required is that the judgment was un-alterable by the court which pronounced it. But it need not be absolutely unalterable. Indeed, the fact that a particular judgment is appealable or has been appealed against in the legal system from which it comes does not affect the finality of the judgment. Although the original judgment may be upset on appeal it is not then altered by the court which made it. It appears, further, however, that where the rendering court has suspended its judgment pending an appeal, such a judgment will not be enforced locally, and, moreover, where an appeal is pending although the effect of the judgment has not been suspended the court has a discretion not to enforce the judgment…,.

The onus of establishing that a foreign judgment is final rests, naturally, on the party seeking to enforce it; but, once this is shown the 'defendant must place before the Court the facts relating to the impending appeal, and such other relevant facts as may persuade the Court to exercise its discretion in granting a stay of proceedings.' [per Jones v Krog 1995 (1) SA 677 (A) at 692].”

With reference to default judgments, the learned author opines as follows…,:

“The position in regard to default judgments, which may or may not be rescinded by the court which rendered them, is less clear.

Under German law, for example, a defendant against whom a default judgment has been given has the privilege of Einspruch available (if exercised within two weeks of the judgment being served on him) in terms of which the case against him is automatically re-opened without the defendant needing to excuse the default. Such a judgment is certainly not final while the defendant can exercise this privilege; but, thereafter, it must be considered final.

Other legal systems, however, do not build time limits into their rules.

In our own law, for example, it appears that, notwithstanding certain cases to the contrary, a High Court judgment can be rescinded at any time on grounds that would normally entitle defendant to restitutio in integrum or 'some other just cause'. Such judgments are, in theory, not final for they may still be altered by the court which made them.

…, there is a strong case for creating an exception to the 'final and conclusive' rule in the case of default judgments. If this is not done, default judgments, even when granted by an internationally competent court, will often be worthless outside the territory of that court. Moreover, in the absence of a time limit after which the default judgment cannot be set aside by the court which pronounced it, only an application by the defendant to have the judgment set aside can, when dismissed, transmute the judgment into an internationally enforceable one…,.

The courts, in several jurisdictions, have been creating such an exception (subject to safeguards) and the local courts should do so too.”

As regards proof of the finality of a foreign judgment, VAN WINSEN, CILLIERS & LOOTS: The Civil Practice of the Supreme Court of South Africa (4th ed. 1997)…, enunciate the position concisely:

“The foreign judgment must, however, be a final and conclusive one, and the finality and conclusiveness of the judgment should appear ex facie the record. It should be alleged, in the summons, that the judgment is a final one, and the law and facts which make it final should be stated if, on the face of it, the judgment appears to be provisional.”

With reference to the requisite formalities, the learned authors continue, at pp.1000-1001:

“It is essential that all the papers should be in order before a foreign judgment will be enforced. The plaintiff must therefore have, before the court, a properly authenticated copy of the judgment upon which provisional sentence is sought, and, if it does not appear from that, that the judgment is a final one, the plaintiff should annex a certificate from the competent authority in the foreign tribunal to show that the judgment is or has become final. If the judgment is in a foreign language, a due and proper translation of it must be annexed to the summons. The documents must show that the translation was made either by a sworn translator of the court or by a person otherwise qualified to translate the judgment.”

In the instant matter, the plaintiff has annexed to its Declaration certified copies of the original judgment and what purports to be a certified translation of that judgment. However, it is not clear that the copy of the original judgment has been properly authenticated. Moreover, there is no indication on the papers that that the translation was made by a sworn translator of the Frankfurt court or by a person otherwise qualified to translate the judgment.

Be that as it may, these are technical issues that may well be addressed and rectified should the matter proceed to trial.

What is more significant, at the present stage of the proceedings, is the content of the record as it stands and what appears on the face of the Frankfurt judgment itself.

It is not in dispute that the judgment was granted by default and that the defendant has neither applied for its rescission nor appealed against it. In that regard, nothing has been placed before this Court as to whether or not the period for appealing against the judgment or for seeking its rescission has expired: FORSYTH: Private International Law (4th ed.)…, and, without such clarification, I am not at liberty to assume the correct position under German law at the present time.

In any event, quite apart from the possibility that the judgment may be susceptible to appeal or rescission (which seems unlikely given the passage of time, since it was delivered in July 2006) what is more crucial, for present purposes, are the actual words employed in the judgment itself.

At page 2 of the certified translation, it is decreed that: “The judgment is provisionally enforceable,” and, at page 6 of the judgment, it is declared that: “The decision about preliminary enforceability is based on ss 708 No.2 ZPO.”

What then emerges ex facie the Frankfurt judgment is that it is provisional or preliminary and only provisionally enforceable.

The word “preliminary” normally denotes something that is initial, first, opening or introductory; the term “provisional”, in ordinary parlance, means temporary, interim, conditional or impermanent. In legal jargon “provisional” is similarly defined in Black's Law Dictionary (6th ed.) as:

“Temporary, preliminary, acceptable in the existing situation but subject to change or nullification.”

Having regard to all of these connotations, it seems unequivocally clear, from the record, that the Frankfurt judgment is purely provisional in nature, and, therefore, subject to change or nullification.

In this regard, the plaintiff has failed to discharge the onus upon it to demonstrate that the ruling is final and conclusive or to explain the esoteric reference to “ss 708 No.2 ZPO” upon which it appears to have been based.

The plaintiff has merely proffered the bald assertion in its Declaration to the effect that the judgment is final.

It has not furnished any certificate from a competent authority in the Frankfurt court to show that the judgment is or has become final. Nor has it adduced anything to counter the defendant's special plea, explaining the relevant law of Germany, by way of written law or judicial decisions, as would conform with the requirements of section 25 of the Civil Evidence Act [Chapter 8:01].

In the premises, it must be held that the judgment in casu is not final and conclusive for the purposes of its recognition and enforcement in this jurisdiction, and that, for that reason, this Court must decline to recognise and enforce the judgment.

SC40-15 : INDIUM INVESTMENTS (PVT) LTD vs KINGSHAVEN (PVT) LTD and DANIEL SHUMBA and LINDA SHUMBA
Ruled By: CHIDYAUSIKU CJ, GWAUNZA JA, GOWORA JA, HLATSHWAYO JA and MAVANGIRA AJA

On 28 February 2008, under case no. HC1239/08, the appellant caused summons to be issued against the respondents seeking an order for the cancellation of a lease, and, consequent thereto, the eviction of the respondents from the leased premises.

On 10 December 2008, a second summons was issued by the appellant under case no.6969/08 wherein it sought the eviction of the respondents due to the expiry of the lease.

The High Court dismissed the claims with costs.

The appellant was aggrieved by the dismissal and has noted this appeal....,.

The basic facts surrounding the dispute are the following:

The appellant (hereinafter referred to as “Indium”) is the registered owner of certain immovable property, being Stand 450 Avondale West Township of Stand 390 Avondale West, also known as 108 West Road, Strathaven, Harare, (hereinafter referred to as “the premises”). The first respondent (hereinafter referred to as “Kingshaven”) is a private company registered as such under the laws of Zimbabwe. The second respondent (hereinafter referred to as “Shumba” and the third respondent, his wife, are the only shareholders of and directors in Kingshaven.

Kingshaven carries on business in the hospitality sector and is in occupation of the premises by virtue of a lease concluded on 14 December 2007 with Indium. Notwithstanding the date of signing, the agreement was to come into force on 10 December 2007 and was to endure for a period of 365 days, terminating automatically on 9 December 2008.

Shumba and his wife are shareholders in a Close Corporation, ERF Bryanstan Cc, which is duly registered as such under the laws of South Africa.

ERF Bryanstan is the registered owner of an immovable property, being Portion 2 of ERF 825 Bryanstan Township also known as 17 Portman Road, Bryanstan Sandton, Johannesburg.

In 2007, ABSA Bank, in whose favour ERF Bryanstan had registered a mortgage against the property, called up the mortgage and executed against the same.

In an effort to save the property, Shumba approached Jayesh Shah (hereinafter referred to as “Shah”) for financial assistance, and this culminated in a number of agreements.

The first agreement consists of a loan between Shah, on the one part, as lender, and Shumba and ERF Bryanstan Cc, on the other, as borrowers. The loan amount is UD$500,000.

The second agreement is for the sale of the entire shareholding in Indium concluded by Shumba and his wife, on the one part, as sellers, and Jayesh Shah and Shaleetha Mahabeer, on the other, as purchasers.

The last agreement is the lease agreement concluded between Indium, as lessor, and Kingshaven, as lessee on 14 December 2007.

The two matters instituted by Indium were, by consent of the parties, consolidated for trial before the High Court.

In dismissing the claims, the court a quo stated:

“He intended to secure a windfall by all means legally possible. His legal practitioner advised a web of agreements to ensure he remained within the realms of the law. A loan here, a purchase of shares there and a lease with a buy-back option to crown it all, was all it took to secure apparent control of the debtor's immovable property in Zimbabwe without any reference to its true value.

Clearly, whatever the parties decided to call it, the agreement to take over control of the plaintiff company from Shumba, without paying for it, amounted, in my view, to a pactum commissorium.

It is the substance, not the form, to which the court looks when deciding the true nature of an agreement.

Consequently, therefore, the second issue, whether annexure “C” amounts to a pactum commissorium is determined in defendants' favour.

I have already found that the payment, in South Africa, by Shah, was intended as a loan, as pleaded by plaintiff; therefore, there is no evidence to suggest that the same payment doubled as payment for shares in Indium Investments (Private) Limited.

That issue is resolved in favour of the defendants as well.

The transactions were clearly in fraudum legis. The law in this jurisdiction is clear. Where the contract which is in fraudum legis is performed, the court cannot come to either party's assistance.”

The appeal is premised on the following grounds:

1. That, the court a quo erred in not finding, that, in the absence of a plea for rectification of a contract, the parole evidence rule operates to exclude extrinsic evidence to disprove the contents of a written contract. (sic)

2. The court a quo erred in not finding, that, returns lodged with the Registrar of Companies are prima facie proof of the correctness thereof, and the same cannot be impugned without the joinder of the Registrar of Companies.

3. Consequently, and for the stronger reason in view of grounds of appeal 1 and 2 above, the court a quo erred in holding that the respondents had discharged the onus of justifying possession of the appellant's property within the context of the actio rei vindicatio.

4. The court a quo erred in fact and in law in holding that the agreements in question were simulated agreements which “mimicked” the South African agreements.

5. The court a quo erred in any event in holding, that, the agreements the subject of the litigation were in fraudem legis in that they sought to evade the exchange control legislation, in view of the fact that free funds were paid to the credit of a South African resident, and in not finding, that, the fact that such South African resident was a citizen of Zimbabwe and did not give rise to the need for exchange control approval.(sic)

6. The court a quo erred in fact and in law in holding, that, the agreements the subject of the litigation a quo were a pactum commissorium.

Counsel for the appellant urged us to find, that, the learned judge in the court a quo had not dealt with the case that was placed before him.

It was his contention, that, the matter before the court was principally for the cancellation of the lease agreement between Indium and Kingshaven and consequential relief. He argued that it was essentially a rei vindicatio.

What the court a quo did, however, it is argued, was to turn its focus on a completely different issue which it could not competently determine and made findings which cannot be supported.

It is contended, that, the court thereby misdirected itself.

In my view, the dispute can be resolved by this court having regard to the manner in which the court a quo dealt with what it referred to as the simulated agreements, and, secondly, dealing with the actio rei vindicatio in accordance with the claims in the summons....,.

In answer to the claim for the eviction of Kingshaven from the premises, the respondents raised various defences, namely, that Shumba and his wife had borrowed a specified sum of money from Shah, and that, as security for their due performance thereon, the latter had demanded security in Zimbabwe in the form of shares in Indium. They pleaded, further, that the parties entered into a simulated agreement for the sale of shares in Indium which ultimately resulted in the lease agreement providing for a buy-back option in favour of Shumba and his wife.

There is no suggestion on the papers that Indium participated in any of the agreements except the lease.

It then begs the question which parties the court a quo referred to when it concluded that the agreements were fraudum legis.

It is common cause, that, the loan agreement was between ERF 825 Bryanston Cc, in which Shumba and his wife owned shares, and Shah.

ERF Byanston Cc was not cited as a party to the proceedings before the court a quo.

Shah only appeared in the proceedings in the court a quo as a witness on behalf of Indium.

In the circumstances, the court could not have properly considered the loan agreement, or its legality, in the absence of the parties thereto.

I turn next to the “share sale” agreement in relation to the shares in Indium.

The parties to the sale of the shares were, on the one part, Shumba and his wife, as sellers, and, on the other part, Jayesh Shah and Shaleetha Mahabeer.

The last two were never before the court as parties and the agreement for the sale of shares could therefore not be scrutinised to any extent by a court in their absence.

Consequently, the determination by the court of the issues related to the lease agreement concluded by Indium and all the respondents in reference to the share sale agreement was highly irregular.

It follows, therefore, that, any issues referred to the trial court for determination in relation thereto would be irregular. It is therefore logical to conclude that the court a quo dealt with matters and issues that were not before it.

This leaves Indium, Kingshaven, Shumba and his wife.

They were parties to a document, being the lease agreement, which is the only document properly before the court.

Those were the parties that were before the court, and, therefore, the only dispute for determination was that arising from the lease agreement in respect of which the court had to determine the respective rights and obligations of the parties before it.

In the absence of a counter-claim for declarations of invalidity in respect of the agreements discussed above, the court could not grant relief to the effect that the agreements were invalid. At best, it was argued, the court ought to have granted absolution from the instance.

I think the criticism is well taken.

At p8 of the cyclostyled judgment, the learned judge in the court a quo stated:

“In my view of the facts, the defendants have adduced sufficient evidence to rebut the presumption of legality of the transactions described above. Generally, one of the most common forms of tax avoidance is where the parties to a contract attempt to disguise its true nature in order to qualify for a tax benefit that would not be available if the true contract between them were revealed. The courts require no statutory powers to ignore pretence of this kind and the law will always give effect to the real transaction between the parties.”

The court a quo then went on to consider the agreements in question, and, at p11 of the judgment, concluded:

“In my view, the true nature of the Zimbabwean agreements was that they were additional securities to the South African loan despite the fact that they in effect apparently passed ownership and control to Shah. The buy-back option as well as the fact that the loan had been secured by a mortgage bond gave Shumba the belief (that) these agreements will be respected by the parties as pledged to the underlying loan agreement. I therefore find for the defendant in respect of the first issue.

As to whether annexure “C” amounts to a pactum commissorium, it follows from my reasoning, that, once the interpretation given by the defendant is upheld, the court must find in his favour on this point as well.

I do so for the following reasons:

A pactum commissorium has been defined as a 'pact by which the parties agree that if the debtor does not, within a certain time, release the thing given in pledge by paying the entire debt, after the lapse of the time fixed, the full ownership in the thing will invariably pass to the creditor in payment of the debt:' see Chimutanda Motor Spares (Pvt) Ltd v Musare & Another 1994 (1) ZLR 310; Van Rensberg v Wieblen 1916 OPD 247 at 252.”

Undoubtedly, the court was correct in its statement of the principle of a pactum commissorium.

However, it was incorrect in applying that principle to the facts of this case.

It gave the respondents far reaching relief which they had neither sought nor prayed for....,.

It is common cause, that, in their plea to the claim for eviction, the respondents raised the issue related to the loan between Shah and Shumba and his wife, the agreement for the sale of shares in respect of Indium, and the lease agreement in terms of which Kingshaven, and through it, Shumba and his wife occupied the premises.

A plea is a defence, and, as such, can be likened to a shield. It is not a weapon or a sword. No relief can attach to a party through a plea.

In the same plea, the respondents averred, that, by separate process, Shumba and his wife would approach the High Court for a declaration of invalidity of the two Zimbabwean agreements.

No such process was ever launched.

Clearly, the court a quo misdirected itself in that it resolved a dispute that was not before it.

Some of the parties to the dispute in question were not before it and they were denied the right to be heard in their own cause.

The ratio of the decision of the court strikes at the rights of Jayesh Shah and Shaleetha Mahabeer without affording them the right to be heard.

I say so for the reason, that, a judgment in which the court stated that the acquisition of shares by the two was a nullity could not be made in their absence and in proceedings in which they have not been cited as parties.

The question that arises for determination is whether such a judgment can be said to be valid and binding as against Jayesh Shah and Shaleetha Mahabeer.

In Hundah v Murauro 1993 (2) ZLR 401, the point was made, that, for a party who has a real interest in the matter in dispute before a court to be bound by a judgment of the court, such party should be cited. At p404E-G the court stated:

“We have drawn attention to this point previously on a number of occasions: see e.g. Munemo v Muswera 1987 (1) ZLR 20 (S) at 21G-H; often in conjunction with the other important point that the local authority should be cited in proceedings of this kind since it has real interest in the property in dispute: see e.g. Ncube v Mkandla SC123-89. If it indicates, in writing, beforehand, that, it is happy to accept whatever the court decides, well and good. But, otherwise, it should be cited, if only to ensure that it is bound by whatever judgment is given. Such an order does not bind it if it was not a party.”

Additionally, the court only had regard to the Zimbabwean agreements.

In the event that its conclusion, that the lease agreement was a simulation and that the “share sale” agreement was security for the loan, such finding could not be arrived at without considering the South African agreements.

The court declined to have regard to them on the basis that the order sought did not depend upon their validity.

This was despite the fact that the pactum commissorium depended on the loan agreement, which was a South African agreement, and which the court had properly declined to consider.

The contradiction is obvious and the misdirection can thus not be in dispute.

View Appeal
HH665-16 : OLIVER MASOMERA (as Executor Dative of Estate late Brian James Rhodes) vs GIDEON HWEMENDE and OTHERS
Ruled By: CHITAPI J

I heard this matter on 20 November 2015 and reserved judgment. The preparation of my judgment has taken longer than expected on account of my deployment to the Criminal Division of this court in January 2016.

The delay in compiling this judgement is therefore attributable to the sheer volume of work which I have had to contend with in the Criminal Division. I have also had to peruse reference records, Case No's HC1589/13, HC617/15, 9849/13 and HC10625/13 which are quite voluminous as these cases bear on the determination of this application.

Turning to the matter itself, this is an application in which the applicant seeks the following relief as set out in his draft order;

“1. Application for rescission in terms of common law of the judgement by her Ladyship Tsanga J HC1589/13 (HH424-13) given in favour of the 4th respondent is hereby granted.

2. Alternatively, application for rescission in terms of Rule 449(1) of the High Court Rules, of the judgment by Ladyship Tsanga J in HC1589/13 (HH424-13) is hereby granted.

3. The respondent's (sic) be and hereby ordered to pay costs of suit on attorney client scale.”

The gravamen of the application is to be gleaned from paragraph 14 of the applicant's founding affidavit in which he stated as follows:

“14. That, this is an application for rescission of judgment in terms of the Common Law in case no. HC1589/13 (HH424/13) on the basis that the original order was obtained by fraud perpetrated by the 4th respondent. Alternatively, this an application for rescission in terms of Rule 449(1) of High Court Rules.”

The applicant's allegations of the fraud allegedly committed by the fourth respondent (Terence Corben Rhodes) are set out in paragraph 15 of the founding affidavit in the following wording;

“15. That, the application for rescission of the judgement in HC1589/19 (HC424-13), in terms of common law, is being sought because the applicant believes that the 4th respondent fraudulently misled the court into believing that the late Brian Jones Rhodes transferred shares of the two companies Beverly East Properties Pvt Ltd and Karoi Properties Pvt Ltd into Phoenix Trust, a fact which is not true.”

It is therefore necessary, in determining this matter, to set out the background to the dispute.

In Case No. HC1589/13, which was disposed of by TSANGA J, the applicant in the application before me was not a party.

The fourth respondent in casu (Terence Rhodes) was the second respondent in HC1589/13.

It is convenient to briefly set out the issues which fell for determination by TSANGA J.

In the said application, the applicant was a firm of legal practitioners, Honey & Blackenberg. The legal firm held a sum of US$70,000 in its trust account. The money had accrued on account of monies collected by that firm as rentals due to two companies, namely, Beverley East Properties (Pvt) Ltd and Karoi Properties (Pvt) Ltd. The companies own certain immovable property which was being managed by Robert Root & Company Estate Agents. Robert Root & Company Estate Agents, in turn, engaged Honey & Blackenberg to be its legal practitioners for purposes of collecting rentals accruing on the properties from various tenants leasing them.

Robert Root & Company terminated its agency for the companies. Honey & Blackenberg, however, remained accepting into their trust account payments made by some of the tenants.

It is the accumulated payment, which totalled US$70,000, which led Honey & Blackenberg to petition this court for a declaratory order as to whom the money should be paid.

The legal firm was faced with claims from nine (9) persons who lay claim to the money. The nine (9) claimants who were cited by Honey & Blackenberg in its application for the declaratory order granted by TSANGA J were the first (Gideon Hwemende) and third-tenth (Lourence Erasmus Vermaak, Terence Corben Rhodes, Valentine Mushore, Alfred Chademana, Joel Tenderere, Oliver Chibage and Farai Mutizwa) respondents in casu.

TSANGA J, in the application for the declaratory order or interpleader, granted an order in the following terms on 20 November 2013:

1. That the second respondent, Terence Cobden Rhodes as claimant in his capacity as Trustee of Phoenix Trust in whom the companies are held, is the lawful shareholder of the two companies.

2. That the second respondent, upon lodging with this court a valid Trust document effected by the deceased during his lifetime transferring the properties to the Trust, shall be entitled to require the Registrar of this Honourable Court to release to the Trust, the sum of $70,000 deposited with him in terms of Rule 206(1) of the High Court Rules, 1971.

3. That the third to the ninth respondents shall pay the costs of the applicant and the first and second respondents.

The above stated order is the one which the applicant prays that it be rescinded on the grounds of it having been obtained through fraud committed by the second respondents as referred to in TSANGA J's order.

If not falling for rescission on the basis of fraud, then it should be rescinded on the basis of Rule 449(1) of the High Court Rules, so the applicant prays in the alternative.

It is common cause that the two companies at the centre of the dispute were established by one Brian James Rhodes who passed on at Harare on 29 July 2006. The applicant in the application before me is the executor dative of the estate of the said late Brian James Rhodes (hereinafter called “deceased”).

As I have already indicated, the applicant was not a party in case No. HC1589/13 determined by TSANGA J.

The learned judge dismissed claims to ownership of the companies in issue by the third respondent Gideon Hwemende. This respondent is the first respondent in casu. The first respondent had purported to appoint the fifth-tenth respondents (Valentine Mushore, Alfred Chademana, Joel Tenderere, Oliver Chibage and Farai Mutizwa) as directors in one or other of the two companies to protect his interests.

With the dismissal of his claim, any claims which the fifth-tenth respondents may have sought to assert similarly fell through or suffered the same fate.

TSANGA J ruled that the lawful shareholder of the two companies was deemed to be Phoenix Trust whose assets included the corporate stock of those companies.

Her ladyship also found that the fourth respondent herein (Terence Corben Rhodes) was a Trustee in Phoenix Trust and a director in both companies owned by the Trust.

She further adjudged that the fourth respondent (Terence Rhodes), in his capacity as Trustee of Phoenix Trust, had legal title to the Trust property and that since the Trust was the holder of corporate stock in the two companies, any benefits accruing to the companies, in turn, accrued to the Trust as shareholder.

In concluding her analysis of the facts, TSANGA J stated as follows;

“Since the Trustee purports that the companies were transferred to the Trust some years ago by the late Brian James Rhodes, there must be in existence evidence which can be produced in support of this claim. Such Trust document was not part of the annexures in this application. As such; before the monies being held can be released, evidence of the Trust legally owning the companies must be furnished to this court through the Registrar of the High Court.”

The learned judge then made the order which I have quoted (supra).

This application is hotly contested and pits the applicant against the fourth respondent (Terence Rhodes).

The applicant's contentions, from a reading of his affidavit, can be summarized as follows in substance;

(a) That the fourth respondent (Terence Rhodes), as trustee of Phoenix Trust (hereinafter called the Trust), had, in the application before TSANGA J “fraudulently alleged that the late Brian James Rhodes during his lifetime had transferred the entire shareholding of the two companies (Beverley East Properties and Karoi Properties) into the Trust.”

(b) That he knew such fact to be untrue.

(c) That the court had relied upon the fourth respondents' fraudulent allegation to hold that the fourth respondent, as Trustee of the Trust, was the lawful shareholder in the two companies and further ordering that “upon lodging with Registrar of the High Court, a valid Trust Deed effected by the deceased, the late Brian James Rhodes, during his life time transferring ownership of the two companies to the Trust, he shall be entitled to the sum of $70,000.”

(d) That the fourth respondent knew that the Trust was not given any shareholding in the companies but only loan accounts as shown on the schedule of assets to the Trust Deed.

(e) That there is no documentary proof of any transfer of shares in terms of the Deed of Trust.

(f) That the fourth respondent deliberately misled the court and perpetuated a fraud because he knew that the two companies belonged to the deceased, and, consequently, to his estate. He thus led false testimony which made TSANGA J rule that the said fourth respondent was entitled to the rentals from the two properties.

(g) That the estate had a vested interest in the case determined by TSANGA J as it was the one entitled to the rentals.

(h) That TSANGA J's judgement has the effect of dissipating a portion of the deceased's estate and affected its winding up and final distribution.

(i) That, further, TSANGA J would not have granted the judgment she gave had she not been misled by the fourth respondent.

As such, the applicant therefore claimed rescission of that judgment at common law or in terms of Rule 449(1) of the High Court Rules.

The applicant attached to his application a supporting affidavit of Elizabeth Anne Rhodes who is described as the widow of the deceased. Her purported affidavit was impugned by the fourth respondent for want of conformity with the requirements of an affidavit recognizable by the court. The affidavit did not comply with the provisions of the High Court (Authentication of Documents) Rules RGN 995/1971.

The fourth respondent objected to the affidavit on the basis that it was not properly authenticated since the purported notary public before whom it was signed was not sufficiently identified.

The applicant did not present any argument against the invalidity of the purported affidavit. It is not necessary to dwell on this matter unnecessarily.

The fourth respondent (Terence Rhodes) has submitted that the purported affidavit is a nullity and that it should be struck off the record.

Counsel for the fourth respondent relied on the case McFoy v United Africa Co. Ltd 1961 (3) All ER 1169 (CPC) in which the celebrated British Judge, LORD DENNING, reasoned that a void act being a nullity necessarily meant that it was as good as not there. That being, it did not need to be set aside.

The purpose of having documents authenticated, especially those executed in foreign countries, is to ensure that they are genuine before the court can use them.

With respect to affidavits, there is more to it than simply authenticating or certifying a document.

An affidavit is a piece of evidence, and, because the person deposing to it is not before the court, such person is required to swear to his or his deposition before a lawfully appointed or authorized person to administer the oath or affirmation.

In terms of the High Court (Authentication of Documents) Rules 1971 an affidavit properly sworn to outside Zimbabwe is admissible in court. It follows that, if not properly sworn, it is inadmissible.

The onus to prove that the purported affidavit of Elizabeth Anne Rhodes was in fact an affidavit and that it was admissible in evidence in court fell upon the applicant: see Dique v Viljeon 2007 ZAGPHC 206.

He did not discharge the onus.

I therefore hold that the purported affidavit of Elizabeth Anne Rhodes is not admissible, and, as I observed, no argument was advanced by the applicant to the contrary.

I therefore disregard it.

HB10-15 : INTRO-WISE CATERING (PVT) LTD vs COSIRA COMMUNICATIONS GLOBAL and COSIRA AFRICA (PTY) LIMITED and ZIMBABWE PLATINUM MINES (PVT) LTD
Ruled By: MAKONESE J

This is an application for a declaratory order.

This court is invited to declare that Cosira Communications Global (first respondent) and Cosira South Africa (Pty) Ltd (second respondent) which was previously known as Cosira International (SA) (Pty) Ltd are one and the same entity.

To make such declaration, this court is asked to lift the veil of corporate personality on the grounds that such corporate personality has been used as a device to cover up fraud or improper conduct.

It is contended, on behalf of the applicant, that although the first and second respondents have distinct and separate legal personas, they are in fact one economic entity.

The first and second respondents strenuously resist the order sought and argue that there is no factual or legal basis for an order that the liabilities of one corporate entity be deemed to be liabilities of another.

The first and second respondents aver that the order sought is not legally competent and that where the corporate veil is lifted the court must effectively look behind the corporate veil to establish the shareholders of the corporate entity and then attach such liability to them.

The respondents pray that the application be dismissed for lack of merit.

Background

The facts that are common cause are these:

In November 2012, Intro-wise Catering (Pvt) Ltd (applicant) entered into a contract with Cosira South Africa (Pty) Ltd (second respondent) in terms whereof the applicant was to provide catering, housekeeping, and laundry services to Cosira South Africa (Pty) Ltd (the 2nd respondent) at the mining site of Zimbabwe Platinum Mines (Pvt) Ltd (third respondent).

The said agreement was to run continuously from November 2012 until termination by either party giving the appropriate notice in accordance with the agreement.

As a result of the agreement, the applicant supplied catering, housekeeping, and laundry services to the second respondent up to May 2013.

Invoices were raised regularly and a balance of US$155,144=22 remained outstanding for the period up to the end of May 2013.

It was the belief and understanding of the parties that the applicant was being sub-contracted to provide service to a company which had a running contract with Zimbabwe Platinum Mines (Pvt) Ltd (third respondent).

It later transpired that it was Cosira Communications Global (the first respondent), instead, that had a running contract with Zimbabwe Platinum Mines (Pvt) Ltd.

It was established that Cosira South Africa (Pty) Ltd (second respondent) never had any contract with Zimbabwe Platinum Mines (Pvt) Ltd at all.

It is Cosira Communications Global (the first respondent) that had a contract with Zimbabwe Platinum Mines (Pvt) Ltd and it is Cosira Communications Global which consumed the services which were provided by the applicant.

The applicant argues that Cosira Communications Global and Cosira South Africa (Pty) Ltd (first and second respondents) were aware, at all material times, that it was only Cosira Communications Global (first respondent) and not Cosira South Africa (Pty) Ltd (second respondent) which had a contractual relationship with Zimbabwe Platinum Mines (Pvt) Ltd.

Cosira South Africa (Pty) Ltd (second respondent) has tendered into court authenticated documents which reflect, that, on the 10th July 2013, Cosira South Africa (Pty) Ltd was placed under provisional liquidation by order of the North Gauteng High Court, sitting at Pretoria, South Africa.

Cosira South Africa (Pty) Ltd (second respondent) was placed under final liquidation on the 27th August 2013.

An order of the High Court of South Africa was issued on the 30th July 2013, authorizing the liquidators to sue on behalf of, and to defend proceedings against, Cosira South Africa (Pty) Ltd (second respondent).

Cosira South Africa (Pty) Ltd's liquidators dispute liability of the outstanding amount and further state that the applicant has failed to make out a case for the piercing of the corporate veil as Cosira Communications Global and Cosira South Africa (Pty) Ltd are separate legal personalities.

Point in Limine

The applicant argues that the application is not opposed by Cosira Communications Global (first respondent) and Zimbabwe Platinum Mines (Pvt) Ltd (third respondent). The only opposition before the court is on behalf of Cosira South Africa (Pty) Ltd (second respondent).

The applicant then extends the argument to state that the opposition before the court is a nullity for reasons set out below:

(a) Cross-border insolvency and the recognition of foreign liquidators in Zimbabwe

The applicant contends, that, Zimbabwe has no bilateral cross border insolvency treaty with South Africa. As such, so it is argued, in order to be recognized as such in Zimbabwe, the foreign liquidator must apply to the High Court of Zimbabwe for foreign recognition and assistance.

Local creditors must be notified of such application.

Further, the applicant notes, that, granting recognition to a foreign liquidator is at the court's discretion. This discretion is absolute but recognition is usually granted in the interest of comity or convenience.

My view on the matter is simply that evidence placed before me clearly indicates that Cosira South Africa (Pty) Ltd (second respondent) has been placed under liquidation in South Africa.

There is no legal basis for that order of liquidation to be registered in this court to give recognition to such an order.

There is no merit in the argument in that the order of liquidation granted by the court in South Africa must be recognized in this jurisdiction first before the respondents can be heard: see the remarks of INNES JP in the case of Ex parte BZ Stegmann 1902 TS 40…, where the learned judge comments as follows:

“But, on the other hand, the same court, acting from motives of comity or convenience, is equally justified in allowing the order of the Judge of the domicile to operate within its jurisdiction, and in assisting the execution or enforcement of such order. The matter is entirely one for its own discretion.”

In the circumstances, therefore, and exercising my judicial discretion, I do not consider it necessary for the liquidation order relating to Cosira South Africa (Pty) Ltd (second respondent) to be recognised first in this court formally. I am satisfied that the order is valid and that the issues for determination can be disposed of without considerations of cross-border insolvency and the recognition of foreign liquidators.

I would accordingly dismiss the point in limine.

SC80-21 : ALLEN GESSEN vs PRISCILLA CHIGARIRO
Ruled By: MATHONSI JA

This is an application for condonation of the late noting of an appeal and the extension of time within which to appeal against a judgement of the High Court handed down on 1 October 2020.The applicant's initial appeal, filed timeously, was struck off the roll on 1 April 2021 for ...

This is an application for condonation of the late noting of an appeal and the extension of time within which to appeal against a judgement of the High Court handed down on 1 October 2020.

The applicant's initial appeal, filed timeously, was struck off the roll on 1 April 2021 for the reason that the Notice of Appeal was fatally defective.

FACTUAL BACKGROUND

The applicant is a citizen of the United States of America (USA) even though he was born in Russia. The respondent is a Zimbabwean citizen. The two met in 2011 in Harare, Zimbabwe and commenced having a relationship which is said to have been upgraded to a customary marriage by reason that the applicant paid the bride price for the respondent.

They never registered a legal marriage.

The parties association was blessed with a boy child, called Orrin, who was born on 23 July 2013.

During the period extending from 2015 to 2019, the applicant secured employment in Russia, and, as such, became resident in that country. In 2016, the respondent and the boy child, Orrin, followed the applicant to Russia where the family took up residence.

It was during the period of their temporary residence in Russia that the couple decided to have a second child. Owing to some health challenges, the respondent could no longer carry the pregnancy. They decided to have the child through surrogacy and found a surrogate mother with whom a Surrogacy Agreement was entered into.

It was signed by the applicant, the respondent, and the surrogate mother on 2 March 2018.

The Surrogacy Agreement stated, in pertinent part:

“We undertake to assume the equal rights and obligations of parents with respect to the children, born by 'surrogate mother' after embryo transfer to the uterine cavity of 'surrogate mother', in terms of their upbringing, as defined by the Russian legislation on family and marriage.”

In pursuance of that agreement, the surrogate mother carried the pregnancy for the parties and gave birth to the girl child, Elizabeth, now at the centre of the dispute, on 15 November 2018.

Unfortunately, the parties relationship hit turbulence, and, a short while after the birth of the child, they commenced living apart.

Although the surrogate mother had given her consent for them to register the child as their own, as genetic parents, the Khamovhichesky Department of the Civil Registry of Moscow refused their application to register the child as they were not married.

Acting together, they instituted a lawsuit against the Registry Office for their recognition as the parents of Elizabeth.

On 27 September 2019, the Meshchansky District Court of Moscow allowed the State registration of the child and for the respondent to be registered as its mother. The applicant was not so lucky. His application for registration as the father was rejected because, by then, he had had his employment in Russia terminated and had relocated to the United States of America.

In doing so, the applicant took the boy child, Orrin, with him.

Although there is no convergence between the parties as to what their intentions were, the applicant says he relocated to the United States of America with the respondent's consent, while the respondent's position is that the applicant abducted Orrin and deserted her and Elizabeth.

It is however not in dispute that the respondent and Elizabeth were left stranded in Russia. They had been in that country on the applicant's expired VISA.

The respondent and Elizabeth ended up living at the Zimbabwean embassy while processing documents to move to Zimbabwe. In due course, the duo found their way to Zimbabwe, in November 2019, where they have remained to this date.

The applicant was aggrieved.

He brought an application to the High Court in terms of the Hague Convention on the Civil Aspects of International Child Abduction (the Hague Convention). The Hague Convention has been domesticated in Zimbabwe and bears the force of law by virtue of section 3 of the Child Abduction Act [Chapter 5:05].

The basis of the applicant's case was that the removal of the child from Russia, and its retention in Zimbabwe, are unlawful.

The applicant sought a declaratory order to that effect. Consequent to that, the applicant sought an order that the child be removed from Zimbabwe and sent to Boston in the United States of America or to Russia for a determination of the parties parental rights in those jurisdictions.

According to the applicant, Russia was the child's habitual residence. He asserted that the child had been in that country awaiting the processing of documentation which would have enabled it to migrate to the United States of America with the respondent in terms of their agreement.

The respondent opposed the application.

According to her, the parties had agreed to return to Zimbabwe and settle here. She stated that an email she had written to the applicant's lawyer, insinuating the existence of an agreement with the applicant for their relocation to the United States of America, had been written under duress. The respondent asserted full parental rights over the child to the exclusion of the applicant as her rights had been settled by the court in Russia. According to her, the child was lawfully retained as a Zimbabwean.

The High Court dealt with a number of approaches in seeking to determine the child's habitual residence for purposes of the Hague Convention on the Civil Aspects of International Child Abduction (the Hague Convention).

It concluded, that, while the issue of the intention of the parties was key in determining habitual residence, the child's parents never formed an intention to settle in Russia. They travelled there for work only and for that reason Russia was not the child's habitual residence. It could not be returned to that country.

By the same token, the High Court found, that, it could not order that the child be returned to the United States of America given that doing so would not be in line with the Hague Convention's purpose of restoring the status quo ante.

Finding the Hague Convention inapplicable, the High Court dismissed the application.

The applicant was dissatisfied.

On 9 October 2020, well within the time allowed by the rules of court, the applicant filed an appeal to this Court. The appeal was defective in that the relief sought therein was incompetent. At the hearing, the appeal suffered the fate of all defective appeals. It was struck off the roll.

THE APPLICATION

The appeal, having been struck off the roll, the applicant has filed the present application for condonation of the late filing of an appeal and the extension of time within which to appeal. The application before me was filed on 9 April 2021 – just eight (8) days after the initial appeal was struck off.

Clearly, there was no material delay in seeking condonation.

The applicant's explanation for failure to comply with the Rules is, that, right up to the date of the hearing of the appeal, he was labouring under the mistaken belief that he had filed a valid appeal. The explanation is actually given by the applicant's legal practitioner who takes ownership of the defective prayer in the initial appeal.

On the prospects of success on appeal, the point is made, on behalf of the applicant, that, the High Court was wrong in dismissing the application on the basis that shared parental intent could not give rise to an application under the Hague Convention on the Civil Aspects of International Child Abduction (the Hague Convention). The applicant would also want to contest the High Court's finding that Russia was not the child's habitual residence.

The respondent opposes the application.

In doing so, the respondent asserts, that, the intended appeal enjoys no prospects of success because the applicant had sought the return of the child to Russia. That country could not possibly be said to be the child's habitual residence in the circumstances of the case. Accordingly, the High Court's decision cannot be assailed.

In the respondent's view, the applicant ought to have appealed against the judgment of the court of Moscow which gave her sole parental rights over the child. She denies unlawfully retaining the child in Zimbabwe....,.

THE LAW

What the court has regards to in an application for condonation is now settled. The court has a discretion, which is exercised judicially, in considering an application of this nature. Relevant factors in this regard are;

(i) The degree of non-compliance with the Rules of court;

(ii) The explanation for the failure to comply;

(iii) The prospects of success on appeal;

(iv) The importance of the case;

(v) The interest of the respondent in the finality of the judgment;

(vi) The convenience to the court; and

(vii) The avoidance of unnecessary delays in the administration of justice.

See Maheya v Independent African Church 2007 (2) ZLR 319 (S)…,.

It is also settled that these factors have to be considered in conjunction with one another as they tend to be complimentary.

While it is true that consideration of the factors generally boils down to having regard to the explanation given by the applicant for condonation for delay and the prospects of success on appeal, the lack of a satisfactory explanation for the delay may be complemented by good prospects of success on appeal: see Khumalo v Mandeya and Another 2008 (2) ZLR 203 (S).

APPLICATION TO THE FACTS

The judgment sought to be appealed against was handed down on 1 October 2020. The applicant's putative appeal, under case number SC421/20, was struck off the roll on 1 April 2021. There was no delay in filing this application after the striking off of the appeal.

The applicant's failure to comply has been explained as the oversight of his legal practitioner who drafted a defective Notice of Appeal.

I accept, that, this Court has stated, in the past, that, there is a limit beyond which a litigant cannot escape the consequences of his or her legal practitioner's dilatoriness or lack of diligence: see Musemburi and Another v Tshuma 2013 (1) ZLR 526 (S)…,.

I take the view, however, that this is not a case in which the legal practitioner's lack of diligence should be visited upon the applicant. This is so mainly for two reasons:

(i) The first one is that the infraction by the legal practitioner only related to the crafting of the prayer in the notice of appeal. It is a fault that cannot be said to be gross.

(ii) The second is that I hold the view that the issues raised by the proposed appeal are arguable. They deserve the attention of the full Bench of the Appeal Court, if for no other reason but that the Supreme Court has not authoritatively pronounced itself on them.

I can only refer to the manner in which the court a quo dealt with the issue of the agreement of the parties in coming to a conclusion that the Hague Convention's application was not triggered.

For a matter to fall under the Hague Convention on the Civil Aspects of International Child Abduction (the Hague Convention), its Article 3 must be satisfied. It provides:

“The removal or the retention of a child is to be considered wrongful where -

(a) It is in breach of rights of custody attributed to a person, an institution, or any other body, either jointly or alone, under the law of the State in which the child was habitually resident immediately before the removal or retention;

(b) At the time of removal or retention, those rights were actually exercised, either jointly or alone, or would have been exercised but for the removal or retention.

The right of custody mentioned in subparagraph (a) above may arise in particular by operation of law or by reason of a judicial or administrative decision, or by reason of an agreement having legal effect under the law of that State.”…,.

In Peacock v Steyn 2010 (1) ZLR 254 (H) the court found that the existence of a custody agreement between the parents of minor children who are not married, regulating their rights of shared custody, triggered the application of the Hague Convention. This is by virtue of Article 3.

In the present case, the Surrogacy Agreement I have referred to above provided some kind of shared custody between the parties.

That, therefore, presents the applicant with an arguable case on appeal.

Apart from that, counsel for the applicant drew attention to an email written by the respondent on 11 November 2019 while she was still in Russia. He submitted that the letter affirms the existence of an agreement between the parties to move the child to the United States of America.

The email was addressed to the respondent's legal practitioner instructing him to relay it to the applicant's legal practitioner for the attention of the applicant. It reads:

“Please be advised that Elizabeth and I are finally ready to travel and are now able to make plans for next steps. As you have previously indicated, you had gone ahead to America and we were to follow so that the children would be together and neither one of us would be deprived of his rights to both children. We will of course need to travel to Zimbabwe first in order to get visas, and, after that, will proceed to America. Please may you send confirmation that this is indeed still the plan as well as confirmation that you will be buying tickets so that we are all reunited. I look forward to receiving your response and finally ending the current separation from Orrin.”

I am aware that there was a suggestion by counsel for the respondent that the email was written under duress - the particulars of which were not clearly articulated.

That is however immaterial for our present purposes. What is important is that the statement by the respondent suggests that an agreement for shared custody may have existed.

If that is the case, the applicant is entitled to argue, on appeal, that, the retention of the child in Zimbabwe, in breach of such agreement, brings the case under the ambit of the Hague Convention on the Civil Aspects of International Child Abduction (the Hague Convention).

I am not sitting to determine the appeal, but merely to consider whether it is arguable.

I think it is.

A case has been made for the grant of the indulgence of condonation.

Regarding the issue of costs, counsel for the applicant tendered to pay the respondent's costs regardless of the outcome of the application. This he did upon a realisation that the application was necessitated by the applicant's blameworthiness.

An award of costs will be made by consent.

In the result, it be and is hereby ordered as follows:

1. The application for condonation for non-compliance with Rule 38(1)(a) 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 against the judgment of the High Court handed down on 1 October 2020 as HH620-20 be and is hereby granted.

3. The applicant shall file his notice of appeal within seven (7) days from the date of this judgment.

4. By consent, the applicant shall bear the costs of this application.

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Documentary Evidence, Certification, Commissioning, Authentication and the Best Evidence Rule re: Foreign Documentation

HH20-09 : SHERRIE HARRIS vs MARK HARRIS Ruled By: MUSAKWA J

HH91-09 : SANANGURAI GWARADA vs KEVIN JOHNSON and MR WILLIAMSON and BERNARD CHOTO Ruled By: GOWORA J

HH95-10 : TIISO HOLDINGS (PTY) LIMITED vs ZIMBABWE IRON & STEEL COMPANY LIMITED Ruled By: PATEL J

HH114-10 : IAN SPENCE GRAY and PRINCIPLE BASED SOLUTIONS P/L vs THE REGISTRAR OF DEEDS Ruled By: GOWORA J

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Law Portal
Zimbabwe

HH20-09 : SHERRIE HARRIS vs MARK HARRIS
Ruled By: MUSAKWA J

HH91-09 : SANANGURAI GWARADA vs KEVIN JOHNSON and MR WILLIAMSON and BERNARD CHOTO
Ruled By: GOWORA J

HH95-10 : TIISO HOLDINGS (PTY) LIMITED vs ZIMBABWE IRON & STEEL COMPANY LIMITED
Ruled By: PATEL J

HH114-10 : IAN SPENCE GRAY and PRINCIPLE BASED SOLUTIONS P/L vs THE REGISTRAR OF DEEDS
Ruled By: GOWORA J

HH192-15 : JAMILA MOKBEL vs HASSAN MOKBEL
Ruled By: UCHENA J

HH213-18 : BULCHIMEX GmbH IMPORT-EXPORT CHEMIKALIEN und PRODUKTE and TECHNOIMPEX SOFIA BULGARIA JSC vs BULCHIMEX GMBH IMPORT EXPORT CHEMIKALIEN und PRODUKTE PL and SARAH HWINGWIRI and R. JOGI
Ruled By: MANGOTA J

HH95-10 : TIISO HOLDINGS (PTY) LIMITED vs ZIMBABWE IRON & STEEL COMPANY LIMITED
Ruled By: PATEL J

SC40-15 : INDIUM INVESTMENTS (PVT) LTD vs KINGSHAVEN (PVT) LTD and DANIEL SHUMBA and LINDA SHUMBA
Ruled By: CHIDYAUSIKU CJ, GWAUNZA JA, GOWORA JA, HLATSHWAYO JA and MAVANGIRA AJA

View Appeal
HH665-16 : OLIVER MASOMERA (as Executor Dative of Estate late Brian James Rhodes) vs GIDEON HWEMENDE and OTHERS
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Ruled By: MAKONESE J

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Ruled By: MATHONSI JA