Air, Land, Sea Carriage and Commercial Storage

HH162-10 : TRANSMEDIA CORPORATION (PVT) LTD vs BEACH CONSULTANCY COMPANY t /a AVIATION GROUND SERVICES
Ruled By: BHUNU J

The defendant is a cargo handling company which is in the business of handling airline cargo; whereas the plaintiff is one of its customers. Most issues in this case are common cause. The undisputed facts are that on 3 March 2008 a shipment of the plaintiff arrived on board Martnair at the defendant's premises at ...

HB61-10 : LUXION TACHIONA and NONTOKOZO DUBE vs NATIONAL RAILWAYS OF ZIMBABWE
Ruled By: NDOU J

The consignment note that was issued to and signed by the first plaintiff for the transportation of the goods in question had a provision to the following effect - “Received and forwarded by….,. The under-mentioned goods to the said destination in accordance with the Bye-Laws, Regulations and Conditions published in the current edition of the Official Railway Tariff Books ...

The consignment note that was issued to and signed by the first plaintiff for the transportation of the goods in question had a provision to the following effect -

“Received and forwarded by….,.

The under-mentioned goods to the said destination in accordance with the Bye-Laws, Regulations and Conditions published in the current edition of the Official Railway Tariff Books (or any amendment thereof or supplement thereto) of the administration specified above or regulations of any other Railway Administration over whose lines the goods may travel to reach their destination, and it is agreed that the said conditions and regulations shall be applicable to this contract in the same manner as though they were fully sent out herein.

………………………………………..

Signed by the Sender”

It is beyond dispute that the Bye-Laws, Regulations or the Official Railway Tariff Books referred to above, were not shown to the first plaintiff at the time of the signing of the consignment note. The first plaintiff, however, had the option of requesting such documents from the defendant. It is common cause that the defendant's insurance tariff for lost goods is based on the mass/weight of the lost goods for ordinary consignments and also, on the amount paid for insured consignments. In casu, the quantified amount for compensation for the plaintiffs' room divider is $3,282,363=; an amount which is below the current value of the lost room divider even at the time of the loss.

The defendant accepts liability only to a limited amount in the sum of $3,282,363= which is the amount calculated in terms of its official insurance tariff.

It is trite law that while carriers of goods may contract out the strict liability imposed on them by the common law or by contract limit their liability, the clause exempting the carrier from liability must do so in clear terms, with express reference to negligence. In the absence of such clear terms, the clause is to be construed as relating to a different kind of liability and not to liability based on negligence – Cotton Marketing Board v National Railways of Zimbabwe 1988 (1) ZLR 304 (SC)…,.; Canada Steamship Lines Ltd v Regem [1952] 1 ALL ER 18 (HL); and Lewis v R R 1921 SR 80.

The defendant's original Tariff Book and Regulations fell foul of the above principle. The defendant has since changed its Tariff Book and Regulations to specifically include negligence. In clause (5)(e) of the current Tariff Book it is provided -

“The phrase “at the risk of the other”, “at the sole risk of the owner,” “at owners' risk” and any other phrases in this Tariff Book, the purport of which is that the risk of damage to or loss of goods in transit being carried by the Railways or in storage or being kept by the Railways for any reason and whether or not for a fee or charge levied by or paid to the Railways, is to be a risk by the owner, consignor or consignee of such goods, shall be so construed as to absolve the Railways of any and all responsibility for loss of damage to or any detriment to such goods whilst they are in Railways custody unless such damage, loss or detriment is due to gross negligence or willful malfeasance on the part of the Railways or their agents and servants whilst such agents and servants are acting within the course and scope of their duties as such agents and servants. For the avoidance of doubt, no claim against the Railways shall be capable, in circumstances where goods are carried or kept subject to such conditions as aforesaid, of being founded upon ordinary negligence on the part of the Railways or their agents or servants.”

It is evident that the above-mentioned clauses are clear on the kind of negligence that the defendant is exempted from….,.

From the size of the 3 piece teak room divider theft by the defendant's employees is the only probable explanation for its disappearance. The defendant cannot exempt itself from liability for theft by its employees – Jiawu Manufacturers v Mitchell Cotts Freight Zimbabwe (Pvt) Ltd 2003 (2) ZLR 396 (H). Theft or loss of a big item like a room divider can only be attributed to “gross negligence or willful malfeasance” as defined in clause 5(e) of Tariff Book, supra, and the defendant cannot therefore, be exempted from liability.

On this finding alone I will rule in favour of the plaintiffs.

Appealed
HH78-13 : PATRICIA MANDALA vs GLENS REMOVALS & STORAGE ZIMBABWE (PRIVATE) LIMITED
Ruled By: BERE J

On 18 October 2012, I pronounced my decision in this case. I indicated my reasons would follow. Here they are. The plaintiff originally issued summons in this court on 24 October 2005 against the defendant seeking an order to compel the defendant to return her property which had been deposited with the defendant for safekeeping ...

On 18 October 2012, I pronounced my decision in this case. I indicated my reasons would follow. Here they are.

The plaintiff originally issued summons in this court on 24 October 2005 against the defendant seeking an order to compel the defendant to return her property which had been deposited with the defendant for safekeeping when the plaintiff left this country for the United Kingdom. The plaintiff had also sought, in the alternative, to be paid the estimated equivalent value of the goods in question. Additionally, the plaintiff sought to recover general damages for pain, emotional stress and trauma caused by the unlawful disposal of her property without her consent and knowledge….,.

The plaintiff's claim was amended, in the alternative, to read that in the event of the defendant failing to restore the plaintiff's property, the defendant be ordered to pay a sum of US$25,000= being damages suffered by the plaintiff when the defendant wrongfully and unlawfully sold the plaintiff's property.

The plaintiff's claim for damages for pain and suffering, emotional stress and trauma was put at US$3,000=.

The interest at the prescribed rate on the total amounts of claims was claimed from the date of summons to date of full payment.

THE FACTS THAT ARE NOT IN DISPUTE

The facts giving rise to this action can be summarised as follows:

On 28 March 2000, the plaintiff lodged her household goods with the defendant for storage at agreed monthly charges. When the plaintiff lodged her goods with the defendant she personally gave her contact address as 48A Manor Avenue, Brockley, London SE4 IPD. This is apparent from exhibit 1 (receipt for goods) signed by the plaintiff at the time the goods were taken into the defendant's storage. This is the only document which was signed by the plaintiff. It is not in dispute that the plaintiff's stored goods were to attract a monthly storage charge and that payment in this regard was to be made in advance. In addition, it was a specific term of the agreement between the plaintiff and the defendant that should the storage charges “remain unpaid for three (3) consecutive months, Glens reserves the right to sell part or all the goods by public auction without notice in order to defray the accrued charges.”

It is the alleged violation of this clause of the contract that has led to these proceedings.

Following the alleged default by the plaintiff in the payment of storage charges the bulk of her property was sold through public auction. Some of the property which could not possibly have been sold, like the plaintiff's marriage and educational certificates, could not be accounted for. The same happened with other household goods which did not appear on the list of items sold by public auction. These were simply not traceable. It is also common cause that after the defendant had taken what it believed was due to it, there was some residue due to the plaintiff and that it was not until the plaintiff had gone to the defendant to enquire about her goods that she was advised of both the sale and the residue. The plaintiff's property was sold by public auction without her knowledge, and, in disposing of the property in the manner it did, the defendant relied on the terms of the conditions of storage as perceived by it.

This matter was referred for trial on only one issue, namely: “Whether or not the defendant breached the contract between the plaintiff and the defendant, or, alternatively, whether or not the defendant acted wrongfully and unlawfully in the circumstances. If so, the quantum of damages.”

THE EVIDENCE

Only two witnesses gave evidence in this case, namely, the plaintiff and Mr Josephat Murape, the defendant's representative.

HH28-03 : CHRIS ROBERTS vs AIR ZIMBABWE CORPORATION
Ruled By: HUNGWE J

The plaintiff was a passenger aboard Flight UM14176 from Harare to London on 9 September 1997. He had luggage. The defendant airline was to convey the luggage together with the plaintiff to London. When the plaintiff got to London he failed to get his luggage. It was lost. The plaintiff accepted payment of $4,694=28 from the ...

The plaintiff was a passenger aboard Flight UM14176 from Harare to London on 9 September 1997. He had luggage. The defendant airline was to convey the luggage together with the plaintiff to London.

When the plaintiff got to London he failed to get his luggage. It was lost. The plaintiff accepted payment of $4,694=28 from the defendant. He sued for UK£3,068= and Z$368,550= for the lost luggage and loss of earnings.

At the pre-trial conference stage it was agreed that the following question be placed before the Court as a Stated Case;

1. Is the contract between the parties governed by the Carriage by Air Act [Chapter 13:04]?

In his heads of argument, counsel for the plaintiff argued that in terms of section 7(2) of the Carriage by Air Act [Chapter 13:04], the Court has a discretion when adjudicating in claims brought to enforce liability which is limited by Article 22 of the Geneva Convention. The limitation imposed by Article 22 of the Convention is a guide but not a strict limitation as such a limitation is qualified by the use of the words "just and equitable" in subsection (2). So he argued.

There is no substance in this argument. It is clearly misplaced and misdirected.

To begin with, the use of the words "just and equitable" in section 7(2) of the Carriage by Air Act are restricted to the procedural options open to a Court where there is a possibility of a carrier facing a multiplicity of suits, either in Zimbabwe or elsewhere.

Secondly, the Carriage by Air Act itself is clear and unambiguous in its limitation of liability. Section 7(1) of the Carriage by Air Act states:

"It is hereby declared that the limitations on liability in Article 22 of the Convention apply whatever the nature of the proceedings by which liability may be enforced and that in particular -

(a) Those limitations apply where proceedings are brought by a wrongdoer to obtain a contribution from another wrongdoer; and

(b) The limitation for each passenger in paragraph (1) of that Article applies to the aggregate liability of the carrier in all proceedings which may be brought against him in Zimbabwe together with any proceedings brought against him outside Zimbabwe."

For the defendant, counsel argued that the golden rule of interpretation, which is that a court is bound to give effect to the express provisions of a statute, must be applied unless that leads to its ambiguity. It would lead to an absurdity if that same provision were to be read as implying that where justice and equity required it, a Court could make an award greater than the limitation allowed.

I agree.

A perusal of the Carriage by Air Act is revealing. The preamble of the Carriage by Air Act reads;

"An Act to enable effect to be given to the Warsaw Convention of 1929, as amended by the Hague Protocol of 1955 concerning international carriage by air…,."

By section 3 of the Carriage by Air Act, the Warsaw Convention was adopted as domestic law of Zimbabwe. The purpose of the Convention, among other things, is to limit the liability of air carriers. Article 22 expressly limits the liability of a carrier by air. It is unequivocal.

The plaintiff did not argue otherwise.

In terms of Article 22, the only circumstance where a carrier by air is liable to a higher limit is, whereby special contract, that carrier has agreed to be so bound.

The plaintiff has not alleged the existence of any such special contract. There would be little purpose served by this Act if it were possible to claim an amount higher than the prescribed limit. This is an international Convention. Zimbabwe is a signatory to it. Zimbabwe is obliged to apply the letter and spirit of the Convention.

In the circumstances, the answer to the Stated Case is that the contract between the parties is governed by the 1929 Warsaw Convention as amended by the Hague Protocol of 1944 as adopted into domestic law by the Carriage by Air Act [Chapter 13:04].

It is ordered that -

The plaintiff is to pay the costs of this application.

HH381-17 : MAZVITA BANGA (Represented by her guardian CHARLES BANGA) and TANAKA BANGA (Represented by her guardian CHARLES BANGA) and CHARLES BANGA and TSUNGIRAI BANGA vs AIR ZIMBABWE (PVT) LTD
Ruled By: MATANDA-MOYO J

The plaintiffs issued summons against the defendant for damages for psychological trauma, pain and suffering allegedly caused to the first and second plaintiffs arising from Air Carriage. The allegations are that the first and second plaintiffs, who are minors, travelled on the defendant's airline to South Africa on 30 March 2016. The third and fourth plaintiffs, who ...

The plaintiffs issued summons against the defendant for damages for psychological trauma, pain and suffering allegedly caused to the first and second plaintiffs arising from Air Carriage.

The allegations are that the first and second plaintiffs, who are minors, travelled on the defendant's airline to South Africa on 30 March 2016. The third and fourth plaintiffs, who are parents to the minor children, alleged that they had entered into a contract with the defendant on the following agreed terms;

1. That the two minor children would be escorted onto the flight and off the flight;

2. That they would be monitored and assisted throughout the flight;

3. That they would be cared for on the plane;

4. That they would be taken through immigration and handed over to a designated person, namely, Haruchemwi Christine Masuta;

5. That their documents would be kept safely by the airline staff who would hand-over same to Hamuchemwi C Masuku; and

6. That Hamuchemwi C Masuku would sign documents acknowledging receiving the minor children.

The plaintiffs alleged that, in breach of the terms of the contract, the minors were not taken care of nor provided any assistance. Instead, a stranger who happened to be a passenger on the plane was asked to assist the children. The plaintiffs alleged that, as a result, they suffered psychological trauma, pain and suffering and claimed $75,000= damages in respect of the first and second plaintiffs and $100,000= damages in respect of the third and fourth plaintiffs.

The defendant excepted to the summons and declaration on the following grounds;

(1) That since the carriage by air of the first and second plaintiffs from Harare to Johannesburg constituted an international carriage within the meaning of Article 1(2) of the Convention for Unification of Certain Rules relating to International Carriage by Air (Warsaw Convention) as ratified by section 3 of the Carriage by Air Act [Chapter 13:04], the cause of action should be premised on the Warsaw Convention.

(2) That the plaintiffs cause of action, being founded on the defendant's alleged breach of contract, cannot be sustained at law; and

(3) That the claims of the Carriage by Air Act and Warsaw Convention, being limited to instances of death or wounding of a passenger or any other bodily injury by a passenger, and the plaintiffs not having pleaded the essential elements, their claim is incurably bad at law.

The defendant prayed for dismissal of the plaintiffs claim with costs of suit on an attorney client scale.

I am indebted to the parties for the detailed heads of argument filed.

The defendant argued that claims arising out of air travel are specifically governed by the Warsaw Convention. Any claims should fall squarely within the four corners of the Warsaw Convention. Any claims falling outside the Warsaw Convention could not be sustained. Since the plaintiffs claims arose from a breach of contract, and, possibly, delict, their claims ought to be dismissed.

The plaintiffs, on the other hand, argued that the Warsaw Convention does not provide the “sole and exclusive” remedies to claims arising from carriage by air. The Convention, as it stands, does not specifically ouster claims arising under common law. In any case, the plaintiffs submitted that Article 17 of the Warsaw Convention does incorporate psychological trauma and distress. In case it is found that Article 17 is applicable, the plaintiffs argued that Article 17 is an archaic piece of legislation which is not justifiable in a dynamic and democratic legal system such as ours.

The first issue falling for determination is whether the Warsaw Convention provides the exclusive remedy to claims arising from carriage by air.

Article 1(1) of the Warsaw Convention provides;

“For the purposes of this Convention, the expression 'international carriage' means any carriage in which, according to the agreement between the parties, the place of departure and the place of destination, whether or not there be a breath in the carriage or a trans-shipment, are situated either within the territories of two High Contracting Parties or within the territory of a single High Contracting Party if there is an agreed stopping place within the territory of another State, even if that State is not a High Contracting Party. Carriage between two points within the territory of a single High Contracting Party without an agreed stopping place within the territory of another State is not international carriage for purposes of this carriage.”

The Warsaw Convention was ratified by section 3 of the Carriage By Air Act [Chapter 13:04]. That means that where there is conflict between the Warsaw Convention and common law, the Warsaw Convention should prevail and apply.

In the case of Sidhu and Others v British Airways (Pvt) Ltd; Abnett (known as Sykes) v British Airways PLC 1997 (1) ALL ER 193 (HC) LORD HOPE stated that:

“The Convention describes itself as a 'Convention for the Unification of Certain Rules relating to International Carriage by Air'.

The aim of the Convention is to unify the rules to which it applies. If this aim is to be achieved, exceptions to these rules should not be permitted, except where the Convention itself provides for them. The language used and the subject matter with which it deals demonstrate that what was sought to be achieved was a uniform international code which could be applied by the courts…, without reference to the rules of their own domestic law.

The Convention does not purport to deal with all matter relating to contract of international carriage of law. But, in those areas with which it deals, and the liability of the carrier is one of them, the Code is intended to be uniform and to be exclusive also of any resort to the rules of domestic law.”

See also Eastern Airlines Inc v Floyd 499 US 530 (1999) where the United States Supreme Court held that an air carrier could not be held liable under Article 17 when an accident had not caused the passenger's death or to suffer physical injury or any physical manifestation of injury.

LORD HOPE, in Sidhu and Others v British Airways (Pvt) Ltd; Abnett (known as Sykes) v British Airways PLC 1997 (1) ALL ER 193 (HC), went further to say;

“…,. To permit exceptions whereby a passenger could sue out with the Convention for losses sustained in the course of intentional carriage by air would distort the whole system, even in case in which the Convention did not create any liability on the part of the carrier. Thus, the purpose is to ensure that in all questions relating to the carriers liability, it is the provisions of the Convention which apply and that the passenger does not have access to any other remedies, whether under the common law or otherwise, which may be available in any particular country where he chooses to raise his action.”

In the case of Impala Platinum Limited v Kolinklijke Lunchtraat Maatshappij NV and Another 2008 (6) SA 600 the court found that exceptions should not be allowed unless where the Convention itself provides for those exceptions.

From the law cited above, and case law, it is clear that claims arising out of carriage by air, are exclusively governed by the Warsaw Convention. Where the Convention provides no remedy it follows there is no remedy. The reason is so as to achieve a uniform application of air carriage laws without resorting to domestic law. It is therefore trite that the cause of action should be premised on the Warsaw Convention.

Having found the above, it is clear or apparent that the plaintiffs cause of action, having been founded on an alleged breach of contract and delict, cannot be sustained at law. See El Al Israel Airlines Ltd v Tsui Yuan Tseng 525 US155 (1999).

It is also trite that in terms of the Carriage By Air Act [Chapter 13:04], and the Warsaw Convention, claims are limited to instances of death or wounding of a passenger or any other bodily injury suffered by the passengers.

In the case of Morris v KLM Royal Dutch Airlines, King v Brishow Helicopters Ltd (2002) Z ALL ER 565 (HL) the court had the opportunity to consider the meaning of 'bodily injury' as provided for under Article 17 of the Warsaw Convention. It was held that such expression did not cover “a mental injury or illness that lacked a physical cause.”

See also Portgieter v British Airways/l 2005 (3) SA 133 (C) where a claim for negligently causing psychological shock to a passenger by an employee was dismissed.

Article 17 of the Warsaw Convention provides as follows;

“The carrier is liable for damages sustained in the event of the death or wounding of a passenger or any other bodily injury suffered by a passenger if the accident which caused the damage took place onboard the aircraft or in the course of any of the operations of embarking or disembarking.”

From a reading of the above, it seems that only physical injury is recoverable under Article 17.

It has been established that purely psychological injury is not sufficient in order to recover under the Warsaw Convention. Once an injury is psychological in nature, it is not recoverable.

In the matter in casu, the plaintiffs have not pleaded that they suffered physical injury leading to psychological injury. It is my view, therefore, that the plaintiffs claim falls outside the purview of the Warsaw Convention. The Warsaw Convention was designed to protect carriers from opportunistic claims as the one in casu.

I am of the view that the exception has been well taken and is upheld…,.

Accordingly I order as follows;

1. The exception be and is hereby upheld.

HH653-15 : LEWENOD ENTERPRISES (PRIVATE) LIMITED vs FREIGHT AFRICA LOGISTICS
Ruled By: CHIGUMBA J

The standard of proof in civil proceedings is proof on a balance of probabilities. What this brings to mind is a mental picture of the scales of justice, the embodiment of the underlying principle that underpins the justice system. It entails a balancing of the plaintiff's claim against the defendant's defence. It necessitates a decision of which ...

The standard of proof in civil proceedings is proof on a balance of probabilities.

What this brings to mind is a mental picture of the scales of justice, the embodiment of the underlying principle that underpins the justice system. It entails a balancing of the plaintiff's claim against the defendant's defence. It necessitates a decision of which of their versions of events is more likely to be true. In other words, which version is more believable, or most likely to have transpired, than the other?

It is my view that the preponderance of probabilities is an exercise which involves an evaluation and an assessment of the likelihood of the plaintiff's version being the correct one as opposed to the defendant's, or vice versa. In making this determination, we look at the pleadings, at the documentary evidence, at what the parties' representatives said and did when they were in the witness stand, and, finally, at what the law says in light of the evidence that we will have accepted. Then we determine what ought to be done in order to do justice between the parties.

The plaintiff issued summons against the defendant on 24 March 2014 in which it claimed payment of USD$48,000= being the replacement value of soya beans that were lost while in the defendant's custody, interest at the prescribed rate, and costs of suit.

The defendant denied entering into any agreement with the plaintiff for the transportation of soya beans. It admitted that the parties entered into an agreement for the transportation of seed maize which agreement was mutually terminated by the parties.

The matter was referred to trial for the determination of the nature of the agreement between the parties; whether such agreement was terminated; whether the defendant gave instructions for the loading of a truck with soya beans; and, consequently, whether the defendant is liable for the loss suffered by the plaintiff of thirty tonnes of soya beans valued at USD48,000=.

It is common cause that the parties signed a 'Load Confirmation and Rate Agreement' on the 28^th of November 2011 in terms of which the defendant agreed to bear the risk for any loss or damage to the goods carried by it and indemnified the plaintiff against any claims.

The parties agreed that any changes to the contract would be reduced to writing and that the defendant could not subcontract without the express written consent of the plaintiff. It was a term of the contract that collection of the load was confirmation, by the defendant, of the terms and conditions of the parties' contract.

It is common cause that a load of soya beans, as opposed to seed maize, was loaded onto a thirty tonne truck on behalf of the plaintiff. It is common cause that the truck which accepted the plaintiff's load went missing and that the representative of the defendant assisted the plaintiff's representative to search for the truck.

(i) Was the agreement between the parties mutually terminated?

(ii) Was the truck that loaded soya beans a truck which had been sub-contracted by the defendant with the plaintiffs express consent - written or otherwise?

(iii) Did the truck load thirty tonnes of soya beans valued at USD$48,000=, or less or more, or maize seed instead of soya beans?

(iv) When the defendant's representative offered to and did assist the plaintiff's representative to look for the misappropriated truck, was this an acceptance of liability on the part of the defendant?

The contemplation of the possible answers to these questions will assist the court to assess the probabilities in this case and to decide which of the parties' versions is supported by the preponderance of probabilities.

In a civil case, the plaintiff must prove its case on a balance of probabilities. This has been interpreted to mean that:

“It must carry a reasonable degree of probability but not so high as required in a criminal case. If the evidence is such that the tribunal can say 'we think it more probable than not' the burden is discharged; but, if the probabilities are equal it is not.”

See Milner v Minister of Pensions1947 2 All ER 372…, and Thulisani Dube Nyamambi v Bongani NcubeHB82-15.

In the case of Zimbabwe Electricity Supply Authority v Dera 1998 (1) ZLR 500 (SC)the court said that:

“…,. In a civil case, the standard of proof is never anything other than proof on the balance of probabilities. The reason for the difference in onus between civil and criminal cases is that in the former the dispute is between individuals, where both sides are equally interested parties. The primary concern is to do justice to each party and the test for that justice is to balance their competing claims. In a criminal matter, on the other hand, the trial is an attack by the State, representing society, on the integrity of an individual. The main concern is to do justice to the accused. If the prosecution fails, the State does not lose.”

The learned authors, HOFFMAN & ZEFFERTT, in their book, SA Law of Evidence4ed…, state that;

“There are no exceptions to the rule that all issues in a civil action are decided upon a preponderance of probabilities.''

In JOUBERT, The Law of South Africa, Vol 9…, the learned author says that:

“In civil proceedings, proof is furnished upon a preponderance of probability and this is the case even when allegations of criminal or immoral conduct are to be proved.''

Accordingly, we must balance the plaintiff's claim against the defendant's defence, and, in so doing, decide which of their versions is more likely to be true. In other words, which version is more believable or most likely to have transpired than the other.

The preponderance of probabilities is an exercise which involves an evaluation and an assessment of the likelihood of the plaintiff's version being the correct one as opposed to the defendant's. In making this decision we look at the pleadings, at the documentary evidence, and at what the parties' representatives said.

The evidence shows that the parties willy-nilly and haphazardly changed the terms of their contract verbally, and not in writing. This makes it difficult to assess whether the defendant is being candid when it says that the contract was 'mutually' terminated verbally. It is equally difficult to assess whether indeed the defendant sub-contacted to a third company as alleged by the plaintiff because neither the plaintiff's consent to such a course of action, nor the alleged sub contract itself, is in writing.

This case boils down to a question of the plaintiff's word against the defendant's.

The probabilities are evenly balanced. Unfortunately, in order for the plaintiff to win its case, the preponderance of probabilities must be tilted in its favor.

In this case they are not.

The evidence does not show that the defendant had a hand in giving loading instructions to Seed Co. The evidence shows that it was the plaintiff which faxed loading instructions to Seed Co. A copy of this fax would have assisted the court to determine who gave the instruction, which company was authorised to load, the registration number of the truck, the name of its driver and his identity number.

The plaintiff said that this information was supplied to it by the defendant. It may very well have been. There is insufficient evidence that the defendant supplied this information to the plaintiff pursuant to a subcontract. The terms of the sub-contract were not made clear to the court. There is insufficient evidence, in the absence of the loading instructions, as to the nature of the goods which were loaded onto the truck in question.

Was it soya beans or maize seed? Was it thirty tonnes or less, or more?

It is anybody's guess because there was no evidence placed before the court on which it can base any findings in answer to those questions. It is highly probable that the defendant's version is correct, that, as a player in the transport industry, the defendant referred the plaintiff to another transporter when it was unable to load the plaintiff's goods. If the defendant was unable to load the plaintiff's goods, then, in terms of the plaintiff's own contract, the defendant was not bound by the terms of the contract and not liable to indemnify the plaintiff against loss or damage.

There is no evidence that, even if it were found that the defendant was authorized, verbally, by the plaintiff to sub contract, the terms of the plaintiff and the defendant's initial contract would also be binding on the defendant as a subcontractor. No contract between the defendant and the third party was alluded to, produced, or had its terms, if they were verbal, placed before us.

We come to the inescapable conclusion that the plaintiff did not manage to discharge the onus on it to prove its case on a preponderance of probabilities.

It is more probable that the plaintiff was the victim of fraud, and that, because the alleged fraudsters were referred to it by the defendant's representatives, the plaintiff wishes to hold the defendant to account. The plaintiff cannot do so on the basis of the evidence which it placed before the court. The cause of action is not founded. The evidence before the court is inadequate, and insufficient, to tilt the probabilities in the plaintiff's favor.

For these reasons, the plaintiff's claim is dismissed with costs.

HH520-18 : AIR NAMIBIA (PROPRIETARY) LTD vs CHENJERAI MAWUMBA and JULIANA MAGOMBEDZE and FADZAI MAWUMBA and RUTENDO MUWUMBA and TADIWANASHE MAWUMBA (minors represented by father & natural guardian)
Ruled By: CHITAPI J

In this urgent application for a provisional order, the applicant prays for relief as set out as follows;“FINAL ORDER SOUGHT1. That the stay of execution is hereby granted.2. Respondents shall pay costs of suit on an attorney-client scale.INTERIM RELIEF GRANTED1. The respondents are interdicted to conduct the attachment of the ...

In this urgent application for a provisional order, the applicant prays for relief as set out as follows;

“FINAL ORDER SOUGHT

1. That the stay of execution is hereby granted.

2. Respondents shall pay costs of suit on an attorney-client scale.

INTERIM RELIEF GRANTED

1. The respondents are interdicted to conduct the attachment of the applicant's property until finalization of the applicant's appeal under case no. SC550/18.”

I reserved judgment in this matter after argument.

It is seldom that a judge finds himself having to contend with listening to academic presentations on law made for no other purpose than perhaps to simply satisfy the ego of the presenter. A judge unfortunately does not engage in debate with the parties or their legal practitioners. The judge can only listen to submissions made, seek clarifications, and, if merited, require any of the parties or any other person to give further information which may assist in the determination of the urgent application as provided for under Rule 246(1) of the High Court Civil Rules, 1971.

This application, on the papers, appeared to be a very simple one. l had thus scheduled to deal with it on the turn after hearing the parties. It ended up being unexpectedly very prolonged on account of the rather unmerited opposition which was mounted by the respondents through their counsel.

The background to this application is as follows:

(a) The applicant, which is a Namibian registered company, operates an airline which makes scheduled flights into and from Zimbabwe.

(b) The respondents are Zimbabwean nationals who made a chamber application in terms of section 15 of the High Court Act [Chapter 7:06] under case no. HC2355/18. The said application was made against the applicant herein as respondent. Its purport was to seek an order for attachment of the applicant's property to found and confirm jurisdiction in a case for dilectual damages in the sum of US$1 million dollars which the respondents intended to institute against the applicant.

(c) On 27 June, 2018 I granted the said application in case no. HC2355/18. I granted the order made ex parte following submissions by the respondents that the matter be dealt with as such in terms of Order 32 Rule 242(1)(b) – (2) of the High Court Rules, 1971. I was satisfied that the giving of notice to the applicant would have had the effect of forewarning the applicant of the proposed attachment with the result that the applicant could defeat the attachment if forewarned.

(d) For reasons which will become apparent later in this judgment, I will set out the content of the order which l granted. It reads as follows:

IT IS ORDERED THAT:

1. The Sheriff of the High Court or his lawful deputy be and is hereby authorised and directed to attach any of the respondents' movable property at its official address at Shop Number 202, Joina City, Harare and to impound any of the respondents airplanes situate in Zimbabwe in order to confirm and/or found the jurisdiction of the High Court of Zimbabwe, and this order shall be his warrant to do so.

2. The Sheriff of the High Court or his lawful Deputy be and is hereby ordered to keep the property attached pursuant to this order so attached until the action which the applicants intend to institute is finalized.

3. Respondent shall be liable for the Sheriff of High Court or his lawful Deputy's costs of storage of the property attached by the Sheriff's office pursuant to this order as well as any other costs arising from the said attachment.

4. Respondent to pay costs.

(e) It goes without saying that because the application was made ex parte and the relief similarly given ex-parte, the applicant herein was not aware of the making of the order.

(f) For reasons not apparent in regard to how the applicant became aware of the application made under case no. HC2355/18, since it had not been served on the applicant, the applicant's legal practitioners filed a chamber application under case no. HC5808/18 on 22 June, 2018. In the said application, the applicant sought the dismissal of application no. HC2355/18 for want of prosecution purportedly in terms of Order 32 Rule 236(3). The applicant alleged that it filed a notice of opposition in case no. HC2355/18 on 21 March, 2018 following service of the said application which had been filed on 14 March, 2018.

I have indicated that it is not apparent as to how the applicant became aware of the application no. HC2355/18 because the respondent, in making their application aforesaid, indicated that they had not served it.

I also granted it on the understanding that it had not, for reasons which l agreed with, been served.

Further, the notice of opposition purportedly filed by the applicant was not brought to my attention and is not filed in case no. HC2355/18. There is no proof of service of the notice of opposition filed in case no. HC2355/18.

I am also not persuaded that the application, case no. HC5808/18, was a proper or competent application for the simple reason that because application HC2355/18 was a chamber application, its disposal was not party driven but judge driven.

Chamber Applications are referred to a judge by the Registrar for disposal and do not require that a party should set down a chamber application for hearing. It is up to the judge to dispose of the application in terms of either Rule 245 which deals with non-urgent applications or Rule 246 which deals with urgent applications.

Rule 236(3), which allows for a respondent to apply for the dismissal of an application where the applicant has not set it down for hearing within one month after the filing of a notice of opposition, does not apply to chamber applications.

Be that as it may, application HC5808/18 became academic and was overtaken by events because the main application, HC2355/18, was determined before the said application was referred to the judge for determination.

For purposes of good order, the applicant, having noted that its application had been overtaken by events, should have filed a notice of withdrawal of the same.

For the record, having perused the said application, HC5808/18, I noticed that the certificate of service was filed on 29 June, 2018. The filing of the certificate of urgency would have been required to be filed before the application was referred to a judge. By 29 June, 2018, case no. HC2355/18, whose dismissal was sought, had already been determined on 27 June, 2018.

I will separately endorse that the record HC5808/18 application is incompetent and was overtaken by events so that the matter can be recorded as finalized by the court and filed away.

(g) On 14 July 2018, the applicant filed this urgent chamber application for a provisional order on the terms indicated at the beginning of this judgment.

I set down the application for hearing on 18 July 2018.

The chamber application is defective in that it does not comply with Form 29B as read with Rule 241.

It is not expected that a senior legal practitioner of Mr Musimwa's experience still fails to comply with the Rules despite a plethora of case law to this effect and the importance of complying with Rules when bringing cases to court.

One shudders to think what sort of grounding the junior practitioners who get employed or are attached to the senior practitioners who fail to comply with basic rules get taught.

To put it beyond conjecture as to the basis for my criticism, the applicant's notice of application should have set out the grounds of the application ex facie. The application, instead, states that:

“Take notice that an urgent chamber application is hereby made to this Honourable Court on the grounds stated herein. The accompany affidavit and Annexures shall be used in support of this application.”

The heading of the application itself reads as follows:

“URGENT CHAMBER APPLICATION FOR STAY OF EXECUTION PENDING APPEAL”

To compound my criticism of Mr Musimwa, the provisional order sought and the final order are substantially the same except in regard to the prayer for costs.

For whatever it is worth, and for the benefit of Mr Musimwa, it is entirely competent to seek an order which is final in nature by way of urgent application.

There is this myth or mis-appreciation of procedure by legal practitioners in believing that every urgent application must be for a provisional order and that it is returnable to court.

Rule 244, read with the proviso thereof, is clear, that, the judge can grant any competent order in an urgent application.

An urgent application is one which is certified as urgent by a legal practitioner. It can be for an order which is final or for a provisional order in terms of Rule 246(2), (3) as read with Rule 247.

Albeit, the pronouncements of the courts falling on deaf ears with respect to some legal practitioners, for posterity, I will, for the umpteenth time, in the interests of justice, once again, hit the drum loud and clear and repeat that rules and procedure are there to be followed. Following rules constitutes part of law practice.

That said, it appears to me that going forward, whilst the court has a discretion to either condone non-compliance with the Rules in the interests of justice, in terms of Rule 4C, or to dismiss the application, the better route to adopt, where circumstances permit, and to avoid an injustice, is for the court to condone the rule breach especially if it is one relating to form but to express its displeasure by ordering that the errant legal practitioner, who is an officer of this court, should be deprived of his fees.

Such an order would reign in errant legal practitioners and should be made where merited after affording them an opportunity to explain their errors.

Where the explanations are not convincing, and the legal practitioner's failures are adjudged to be gross, the attention of the Law Society should be drawn to the fact for it to monitor that the legal practitioner undergoes continuous legal training in the relevant areas of failure.

I will, out of benevolence, and in the hope that errant practitioners take heed, quote a few judgments of this court on the need to comply with Rules of Court, be it in ordinary, chamber, or urgent chamber applications; see David Jack & Ors v Lloyd Mushipe & Ors HH318-15; Marick Trading (Pvt) Ltd v Old Mutual Life Assurance Company (Pvt) Ltd & Anor HH667-15; Joshua Nyamhuka & Anor v Abigail Mapingure & Ors HH29-17; Zimbabwe Open University v Mazombwe 2009 (1) ZLR 101 (H); Salt Lakes Holdings (Pvt) Ltd & Anor v CBZ Bank & Anor HH636-15; Grandwell Holdings v ZCDC & 2 Ors HH125-17; Brain Andrew Cawood v Elasto Madzingura & Anor HMA12-17; Ignatius Masamba v Secretary Judicial Service Commission & Anor HH283-17 and several others which can be found on reference to decided cases on the need to comply with the Rules.

Legal practitioners must therefore take heed that they risk being put to shame by the court for inefficiency and being deprived of their costs. It is high time that the profession focuses on efficiency and to shun tardiness in case presentations, preparation of pleadings, and all other facets of legal practice that has to do with justice administration.

The profession must justify its description of a learned profession and its members learned officers of the court.

The applicant filed an appeal, No. SC550/18, against my order given in case no. HC2355/18, on 13 July 2018 with the Supreme Court.

On the following day, this urgent application was filed.

I have already indicated that the application was set down for 18 July 2018 following its referral to me in terms of Rule 244.

(h) On 18 July 2018, Mr Hashiti, who appeared instructed by Mr Musimwa, applied for a postponement of the hearing. He indicated that he had instructions that he needed to verify through documentation still to be availed to him to the effect that the applicant was in fact an incola.

In his submissions, which I found meritorious, he stated that should the applicant be an incola, then the issue of arrests or attachments of the applicant's property to found and confirm jurisdiction would fall away.

Counsel for the respondents first opposed the postponement arguing that the request was frivolous.

I was utterly surprised by his attitude because the reasons for the request had merit and would enable him to file his clients (the respondents) claims expeditiously without putting the respondents to the costs of ancillary matters of jurisdiction.

Having found the opposition to the application to be without merit, I dismissed the opposition and postponed the hearing to 20 July 2018.

(i) On 20 July 2018, Mr Hashiti now had in attendance representatives of the applicant, being, its Senior Legal Manager, Mr Jerhome Tjizo, and the Senior General Manager, Ground Operations, Mr Moses Shihepo. They had flown from Namibia for the hearing. I was advised by Mr Hashiti that the legal practitioners and the parties were in consultation but appeared not to be in agreement.

(j) For their part, the respondents had, on 18 July 2018 filed a notice of opposition. They contended that the application was not urgent because the order sought to be stayed had been appealed against. It was also contended that since the respondents had not taken any steps to enforce the order no urgency had arisen.

It is of course correct that an appeal was noted to the Supreme Court. The appeal suspended the execution of the judgment appealed against. The law in this regard was aptly set out by CORBETT JA in South Cape Corporation (Pty) Ltd v Engineering Management Services (Pty) Ltd 1977 (3) SA 534 (A1)…,; a case cited by GARWE JA in Longman Zimbabwe (Pvt) Ltd v Midzi & Ors SC54-07 thus:

“Whatever the true position may have been in the Dutch Courts, and more particularly the court of Holland…, it is today the accepted common law rule of practice in our courts that, generally, the execution of a judgment is automatically suspended upon the noting of an appeal with the result that, pending the appeal, the judgment cannot be carried and no effect can be given thereto except with the leave of the court which granted the judgment.”

After extensive discussion on the correctness of the above proposition and consideration of various decided cases, GARWE JA, with the concurrence of the other members of the court, stated thus:

“The position may now be accepted as settled, that, unless empowered by law to do so, an inferior court or other authority has no power to order the suspension of its own orders or judgment, and, further, that the noting of an appeal against the judgment or order of such court or tribunal or other authority in the absence of a statutory provision to that effect, does not have the effect of suspending the operation of the judgment or order that is sought to be appealed against.”

The legal position, following on the above settled position, is that my order, having been appealed against, and it being an order of a superior court, cannot be executed upon until the appeal is disposed of or unless the respondents in the appeal apply to execute the order pending appeal.

Accordingly, there is no legal basis for the applicant to seek a protection order or interdict to stay execution pending appeal.

The interdict or protection, if one may use the expressions loosely, is given in law and already in place. If l were to grant the order, I would simply be restating or endorsing a settled position. It is not the function of a court to do that in the absence of a dispute on the interpretation of the legal position.

(k) I would have thought that a properly advised legal practitioner would have argued the matter and sought the dismissal of the application on the basis that there was no proper or legally competent application before me.

It was not to be with Mr Mutevedzi for the respondents.

He went on, at length, to argue that the application was not urgent.

It is common cause and a matter of law, logic, and common sense that an invalid application is just that. Nothing sits on nothing. It is as good as it is not there. Urgency does not come into it because if, for example, the application was adjudged not urgent, it would have to be referred to the ordinary roll. A nullity is not referred for determination. It is declared to be so and that's the end of the matter.

Mr Mutevedzi was not done.

He argued that the application was incurably defective as it was not accompanied by Form 29B. He further argued that the appeal notice was defective because it did not bear a High Court stamp.

I cannot, of course, determine the validity of a Notice of Appeal agreed to be pending in the Supreme Court. It is for that court to make the determination.

The argument raised by counsel for the respondents in this regard contradicted his earlier submissions, and the deposition of the respondents, that they accepted that the order sought to be stayed had been appealed against.

Mr Mutevedzi was not done.

He then attacked the authority of the deponent to the founding affidavit to represent the applicant.

For his part, the applicant's counsel did not adopt a grandstanding approach.

Mr Hashiti sought to depart from the thrust of the application and submitted that the applicant's concern was that it risked having its business adversely affected by an attachment of its aircraft or other property. He tendered the applicant's resolution to provide a Bank guarantee in the sum of US$25,000 as security for its due submission to jurisdiction of the court.

The offer was refused by the respondents' counsel who argued for the dismissal of the application.

When I asked Mr Mutevedzi whether he did not consider that the interests of the respondents would be better served by a consensus between the parties on the submission to jurisdiction by consent secured by a Bank guarantee, or other security, he was adamant that the application should just be dismissed.

Mr Hashiti's position was that a mutual agreement on the issue would have dispensed with the appeal thus opening doors for the respondents to immediately institute action.

Although these submissions were being made in the course of the hearing, the issue was not before me and I could not make any determination thereon and will not do so in view of my finding that the application before me is incompetent at law in the circumstances of the existence of a pending validly noted appeal.

I should express my disquiet at the poor standard of understanding of basic law principles by the applicants' instructing legal practitioner and by Mr Mutevedzi.

It is not expected that any astute legal practitioner would not appreciate that the noted appeal, unless set aside, or the appeal determined, was a bar to execution of my order.

Sustained arguments by Mr Mutevedzi, on issues which did not contribute to the determination of a simple legal issue, namely, whether there was a valid application before the court in the face of the appeal, was an indictment on his ability to grasp the issue at play.

A legal practitioner should identify the issue, or issues, for determination and focus on them.

Grand-standing before a court or judge hardly impresses nor does it make a good legal practitioner.

I seriously considered depriving the legal practitioners of their costs as a mark of the courts displeasure at the legal practitioners' basic lack of diligent execution of their mandates.

Mr Musimwa's failure to appreciate that the application was a nullity and Mr Mutevedzi's lack of appreciation of issues and arguing ad infinitum on matters arising from an invalid application presented a serious indictment on the sinking levels of competence of some legal practitioners.

I could not properly determine whether or not to deprive the legal practitioners of their costs as I did not hear them on the matter.

It was a thought which played on my mind as l prepared these reasons for judgment.

I must, in dismissing this application, determine the question of costs.

The general rule is that costs follow the result. This notwithstanding, costs are awarded in the discretion of the court, and, as with any other discretion, it is exercised judiciously.

The principles which the court considers include; the conduct of the parties before and during the hearing; whether a party has been wholly or partially successful; whether a party has offered to settle the matter; and any other pertinent circumstances; see Manica Zimbabwe Ltd v Grindsberg Inv. (Pvt) Ltd & Ors HH95-16.

In casu, considering all the matters over which I have expressed the court's disquiet informed by what is clearly ineptitude by its officers, Mr Hashiti excluded, an order that each party bears its own costs would have been appropriate.

In view, however, of the fact that the applicant's application is not supported in law, the filing of the ill-advised application is the one which set into motion all that followed it - culminating in the court's time being wasted as well.

The appropriate order under the circumstances is that the application be and is hereby dismissed with costs.

View Appeal
HH100-17 : UPSET INVESTMENTS (PRIVATE) LIMITED vs CHITUNGWIZA MUNICIPALITY
Ruled By: MUREMBA J

The plaintiff issued summons claiming the following:

“(i) Payment of the sum of US$119,300 being the remaining balance of the agreed purchase price for one x 20 Tonne Hyundai Excavator, sold and delivered by the plaintiff to the defendant, at its specific instance and request.

(ii) Interest at the prescribed rate calculated from the date of delivery, being 19th of June 2014, to the date of full payment.

(iii) Costs of suit on a legal practitioner and client scale.”

In its declaration, the plaintiff averred the following:

In 2011, the parties entered into a procurement contract in which the defendant ordered one by 20 tonne hydraulic excavator from the plaintiff. The agreed purchase price was US$209,300 inclusive of VAT. The defendant was obliged to pay 50% deposit towards the purchase price. The remaining balance was payable upon delivery of the excavator.

In partial fulfilment of the agreement, the defendant paid, in instalments, the sum of US$90,000 as part deposit to the agreed purchase price.

The plaintiff accordingly delivered the excavator on 19 June 2014 which delivery was accepted. The excavator was accepted in good working order by the defendant at its premises.

The defendant has, despite demand, refused or neglected to pay the outstanding balance of US$119,300....,.

To the merits, the defendant averred, that, the plaintiff delivered a defunct Hyundai Excavator contrary to the undertaking that it made that it would deliver a new excavator. It had to incur unnecessary costs in having the excavator checked by an independent company. The defendant averred, that, it will only effect payment of the balance after delivery of a brand new and properly functioning machinery.

The defendant also made a counter claim. It averred the following:

On 16 May 2014, it advertised a Tender Notice in the Herald newspaper in terms of section 211 of the Urban Councils Act [Chapter 29:15]. The notice was inviting tenders for the supply of brand new machinery, viz:

(i) One Jet machine Chigu Velocity clearing machine.

(ii) One Tracked Excavator 30 tonne.

(iii) One Front End Loader.

On 18 July 2011, the defendant in reconvention won the tender to supply it with a 20 tonne Tracked Excavator and a 3 tonne Front End loader. It was a term of the agreement that:

(a) The defendant in reconvention would deliver a brand new excavator and a brand new front-end loader.

(b) The plaintiff in reconvention would pay the deposit of the agreed purchase price before delivery of the machinery.

(c) The plaintiff in reconvention would pay the outstanding purchase price upon delivery of the machine.

The plaintiff in reconvention paid the initial deposit to the defendant in reconvention on 29 January 2014 in the sum of US$140,000. On 19 June 2014, the defendant in reconvention delivered a dysfunctional excavator in breach of the agreement terms.

It has refused and failed to deliver a brand new machinery.

The plaintiff in reconvention has been prejudiced by the breach. The plaintiff in reconvention is entitled to specific performance of the agreed terms of the contract. Alternatively, it is entitled to restitution of US$140,000 being the deposit paid as part of the purchase price and damages for breach of contract. Consequently, it claims for:

“(a) An order compelling the defendant in reconvention to deliver brand new excavator and Frond End loader to the plaintiff in reconvention in terms of the agreement.

(b) Alternatively, an order compelling defendant in reconvention to pay the sum of US$140,000 being the deposit paid as part of the purchase price.

(c) An order compelling defendant in reconvention to pay US$30,000 as damages for breach of contract.

(d) An order compelling defendant in reconvention to pay US$20 per day from date of summons to date of collection being storage fees for the excavator.

(e) An order compelling defendant in reconvention to pay interest at the rate of 5% per annum from the date of demand to date of payment in full.

(f) Costs of suit on a legal practitioner client scale.”...,.

The plaintiff in reconvention did not lead any evidence to prove its claim for US$20 per day for storage charges.

HB32-15 : ANDREW NDLOVU and CHIHWA TOURS vs THEMBINKOSI SIBINDI
Ruled By: MUTEMA J and MOYO J

By the time the appeal was heard, on 2 February 2015, the respondent had, on 15 January 2015, filed a document headed “CONSENT TO JUDGMENT” wherein he indicated that he was consenting to the order sought in the appeal.

We allowed the appeal in terms of the consent and indicated that for the benefit of the trial magistrate, as well as other judicial officers who may be in the same predicament, we felt constrained to do a judgment write up.

This is it.

This is an appeal from a decision of the Magistrates Court sitting at Victoria Falls. The first appellant was a driver employed by the second appellant. The respondent is a former mayor of the resort town and also a former Member of Parliament.

On 2 October 2011, the first appellant was in Bulawayo driving the second appellant's IVECO vehicle registration number ABS 4838. The respondent averred, that, he telephonically contracted with the first appellant to pull his trailer with tins of paint and other hardware goods from Bulawayo to Victoria Falls for a fee to be paid at destination.

Along the way, so the argument went, the first appellant negligently caused an accident which resulted in damage to some of the respondent's consigned goods. Goods valued at US$2,411=90 were damaged.

In order to bring his claim within the monetary jurisdiction of the Magistrates Court, the respondent abandoned his claim to $411=90 and sued the appellants jointly and severally, one paying the other to be absolved for $2,000,00, interest at the prescribed rate effective from date of issue of summons, and costs of suit.

The second appellant was roped into the suit on the basis of alleged vicarious liability.

Both appellants strenuously denied liability.

The appellants denied, that, the first appellant was negligent and that his negligence caused the accident and that the second appellant was vicariously liable.

They also both denied that the respondent contracted with the first appellant for the carriage of the goods, let alone for a fee, since such was beyond the first appellant's mandate.

They averred, that, the respondent used his political muscle and forced the first appellant to pull his trailer at no cost thereby taking the risk; for the second appellant is not a licenced carrier, not insured, and not authorized to carry goods.

In her judgment, in which she found for the respondent, the trial magistrate, in a somewhat Wednesday decision, reasoned, in pertinent part, thus:

“Concerning the issue of negligence that was not expressly been (sic) proven however there are references to same (sic) type of negligence being there. In terms of how the accident occurred in addition to the realization of it (sic). However, to my mind, even if some negligence had been there. It doesn't then allow that the liability falls away.

Since vicarious liability covers even negligent actions. Mungofa v Muderede and Others 2003.

Defence counsel was dwelling on the fact, that, the contract was flawed. What has come out is that there was an agreement for delivery of goods after which payment would be made. So that was the verbal contract.

In this instance the first defendant started (sic) that as drivers they regularly carry goods for passengers on the agreement that the people would pay later. This was an arrangement he said the manager knew about. He added that after receiving payment he would take the money to the company office. So in saying this first defendant is saying he had a verbal contract with plaintiff.

A director at Chihwa tours testified saying he did not know goods were being carried without passengers.

Now, in coming up with a judgment. One has (sic) to look at the purpose of the doctrine of various (sic) liability Gwalinga v Jaredzo 2001 which includes that members of the public. Be protected from activities does (sic) by employees. Furthermore the employer is in a far better position to compensate the injured party than the employee. Looking at the purposes one has to apply it (sic) to this case. That Chihwa tours is better able to compensate customers for losses than the driver.

I now go into the operation of the doctrine in relation to this case which is 2 pronged. First that the employee is a servant not an independent contractor. In this instance the first defendant was a servant not an independent contract (sic). Since he is a driver who is subject to the employers control and direction. Secondly was he acting within the scope of his duties? His duties include driving the company vehicle to ferry passengers and their goods to their destination. Whether there was a deviation from duty Nott v ZANU PF 1983.

This is what he was doing on that day. When he carried passengers for Chihwa tours to Victoria Falls. Using the company's vehicle. So at his reason (sic) for travelling to Victoria Falls was for work. To further clarify if he was acting in the course of his employment. One has to ask if first defendant was on a frolic of his own. During proceedings no one alleged that this trip was of accused (sic) own making. It was agreed he was sent on a trip for work. So I find that he was within the course of his employment.

Whether he exercised his duties well or not as to the satisfaction of his employer is something else. But for the purposes of this case. The second part of the 2 fold doctrine of the operation of this doctrine has been satisfied. So I find that defendant carried goods for plaintiff. During his duty as an employee whilst acting in the course of his employment as envisaged in Bande v Boregone 2003.

Concerning the qualification (sic) of plaintiff's loss plaintiff is claiming for all drivers and plaintiff's employee (sic) as defence counsel rightly points out agree that some tins of paint that were recovered (sic). Which were at least 10 in number. So there is a need for plaintiff compensation to be lessened in that respect.

So I award judgment for the plaintiff less ten tins of paint of 5 litre (sic) which first defendant and plaintiff's witness approximated were recovered. Each party to bear its own costs.”

Before delving into the gist of the legal issues that emanate from the facts and the judgment, I must utter some strictures regarding the several grammatical and punctuation errors exitant in the portion of the judgment quoted above. This explains why I was constrained to quote it in extenso.

It is not known if these errors should be ascribed to the trial magistrate or the typist, or both, but, the bottom line is that the trial magistrate should shoulder the blame for obvious reasons - it is her judgment.

It is sad to remark, that, in fact, this is her style of judgment writing as gleaned from appeals and reviews emanating from her one-person station.

Now, to the pith of the appeal and the law.

The following legal issues emanate from the court a quo's judgment:

1. Propriety of citing the second appellant.

2. Vicarious liability of the second appellant.

3. Claim founded on lex aquilia but liability founded on contract.

4. The relief that was awarded.

I would deal with the above issues seriatim.

1. PROPRIETY OF CITING THE SECOND APPELLANT

This issue is a point of law which a party is allowed to raise at any time, even on appeal, for the first time: Muchakata v Netherburn Mine 1996 (1) ZLR 153 (S).

The appellants were correct to raise the point for the first time on appeal.

Second appellant was cited as Chihwa Tours.

The trial magistrate never bothered to strive to ascertain what entity this was but was content with the description in the particulars of claim that it was a “transport company” yet it is an un-incorporated entity operated by one Jackson Mukahanana.

Legally speaking, no company can have such a name.

The result of this vis-à-vis the second appellant is that the proceedings were instituted against a non-existing legal persona.

In The Zimbabwe Bata Shoe Company Limited v Bata Shoe Company Middle Management SC30-12 the following appears:

“The appellant has taken the point, that, although the Bata Shoe Company Middle Management is cited as the respondent, it is not a legal persona at law, with the capacity to sue or be sued. Therefore, there is no respondent before this court. Similarly there was no respondent before the Labour Court, or a claimant before the arbitrator….,.

In light of the recent decision of this court, in CT Bolts (Pvt) Ltd v Workers Committee SC16-12, this court is of the unanimous view that the respondent is not a legal persona. Consequently, there is no respondent before this court. Neither was there a respondent before the Labour Court nor a claimant before the arbitrator. Both proceedings before the arbitrator and the Labour Court were therefore a nullity at law.”

By citing a non-legal persona, there was no second appellant (defendant) in the Magistrates Court, and, since liability for the second appellant was being sought vicariously, the proceedings a quo, at least against the second appellant, were a nullity.

2. VICARIOUS LIABILITY OF SECOND APPELLANT

This issue is interwoven with the preceding issue in 1 above.

There could not have been vicarious liability against a non-existent party.

Vicarious liability is a doctrine of English Law, imported and accepted into the Roman-Dutch Law, which imposes liability on employers for the wrongdoings committed by their employees during the course and scope of their employment.

In casu, it is common cause, that, the first appellant was an employee, at the relevant time, of Jackson Mukahanana, and his employment brief was to drive tour passengers and their goods to stipulated places - and not pull trailers of non-passengers.

The court a quo correctly found, that, the first appellant was an employee, but, wrongly found who the employer was.

The second misdirection was the finding that the first appellant was acting within the course and scope of his employment when he pulled the respondent's trailer.

The trip from Bulawayo to Victoria Falls may well have been embarked upon in the course of his employ, but, the pulling of the respondent's trailer, laden with the goods, was certainly not within the scope of work of the first appellant's employment.

So, even if the respondent had succeeded in establishing that the second appellant was a legal persona and employer of the first appellant, and that the latter had been negligent, it was still going to be difficult, if not impossible, for the respondent to scale this insurmountable hurdle relating to non-scope of employment which can inferentially be equated to the first appellant going on a frolic of his own.

HH95-16 : MANICA ZIMBABWE LTD vs GRINDSBERG INVESTMENTS (PVT) LTD and OTHERS
Ruled By: DUBE J

This is an application for costs. At the hearing of this matter, the applicant withdrew its urgent application without an offer of costs.

The first respondent requested the court for an order of costs resulting in the question of costs was reserved pending the filing of heads of argument on the subject by both parties.

The first respondent seeks an order of costs on the legal practitioner client scale, alternatively, costs on the legal practitioner-client scale de bonis propriis.

The brief background to this application is as follows:

The applicant provides a container depot for the storage, detention, unpacking, and examination of containers or the contents of containers or for the delivery of importers of contents of containers after the contents have been duly entered.

The applicant is a licensed container depot.

The second respondent (Bollore Africa Logistics Zimbabwe (Pvt Ltd) was cited as an interested party having arranged transport of the consignment of sugar which forms the subject matter of this application.

The third and fourth respondents (Minister of Industry and Commerce N.O. and Minister of Agriculture, Mechanisation and Irrigation Development N.O.) are the minsters responsible for issuing permits and licences for importation of goods into the country.

The fifth respondent is the Commissioner General of the Zimbabwe Revenue Authority, the authority responsible for the administration of the Customs and Excise Act [Chapter 23:02].

Between March and October 2014, the applicant received containers containing sugar and other goods belonging to the first respondent. The rest of the goods were cleared leaving containers of sugar. The first respondent was required to obtain a licence and permit from the third and fourth respondents, pay import duty to the fifth respondent and clear the goods, and pay the applicant's storage and handling charges.

The applicant averred, that, the first respondent had failed to obtain the necessary licence and permit to allow the importation of the sugar held by the applicant.

The applicant submitted, that, the first respondent's licence, from the third respondent, for the importation of the sugar into Zimbabwe, was to expire on 24 September 2005. It contended, that, sugar is a perishable and its value was continuing to deteriorate as each day passed.

On 15 September 2015, the applicant filed an urgent chamber application seeking an order to compel the first respondent to pay for licences, permits, and import duty to the third to fifth respondents to enable the first respondent to clear and remove the sugar stored at the applicant's premises.

In the event of the first respondent's failure to do so, the applicant sought an order compelling the third and fourth respondents to grant to the applicant the necessary permits and licences entitling the applicant to import the sugar into Zimbabwe, sell the sugar, and pay the fifth respondent out of the proceeds of the sale and recover its storage costs.

The court initially declined to deal with the application on the basis that it was not urgent and only agreed to entertain the application after an appeal by the applicant....,.

Although the court found that the matter was not urgent, this in no way means that the applicant had no cause of action against the first respondent.

The applicant was holding its sugar and the first respondent was not clearing it or facilitating that process.

When the application was lodged, the respondent had not paid for clearance of the sugar.

The applicant was entitled to compel the first respondent to clear the sugar - and by a certain date....,.

The applicant made its application on 15 September 2015 seeking an order against the first respondent to “effect all such payment as is required to clear and to remove” its sugar held at the applicant's depot.

View Appeal
HH385-13 : WEBSTER RUSHESHA (as legal guardian of Panashe Rushesha and Tivonge Rushesha) and RASAR INVESTMENTS (PVT) LTD vs ALEXIOUS DERA and ZIMCOR TRUSTEES LTD and FRANK BUYANGA and BOKA INVESTMENTS (PVT) LTD and MATTHEW BOKA and REGISTRAR OF DEEDS
Ruled By: ZHOU J

In the case of Chimutanda Motor Spares (Pvt) Ltd v Musare Anor 1994 (1) ZLR 310 (H)…, this Court, citing with approval a passage from the case of Van Rensberg v Weiblen 1916 OPD 247…, embraced the following definition:“A pactum commissorium is defined as 'a pact by which ...

HH728-17 : C R S (PVT) LTD vs ZIMBABWE REVENUE AUTHORITY
Ruled By: KUDYA J

This is an appeal against the four amended assessments issued by the respondent against the appellant on 23 June 2014 in respect of the four consecutive tax years ended 31 December 2009, 2010, 2011 and 2012.The real issue for determination posed by these assessments is whether the respondent can tax ...

This is an appeal against the four amended assessments issued by the respondent against the appellant on 23 June 2014 in respect of the four consecutive tax years ended 31 December 2009, 2010, 2011 and 2012.

The real issue for determination posed by these assessments is whether the respondent can tax non-existent income through the deeming provisions of section 98 of the Income Tax Act [Chapter 23:06]....,.

On 28 October 1996, the appellant concluded a lease agreement and a separate logistical agreement with a South African company, hereinafter referred to as the related party, for the lease of its mechanical trucks, trailers, and tankers for a fixed rental. The agreements took effect from the date of signature. The lease agreement was further renewed on 8 October 2003, 16 August 2006, and 6 July 2009.

In February 2013, the respondent commenced a tax compliance investigation on the appellant. It was triggered by the shared common ancestry, logo, name, and Managing Director between the two companies.

The Commissioner identified five (5) areas of dispute, which resulted in the exchange of a number of e-mails with the appellant between 8 August and 8 October 2013. Only two areas of dispute remained unresolved by 8 October 2013:

(i) The first concerned the payment by the appellant of the salaries and wages of the local drivers used by the related party;

(ii) While the second was in respect of under-invoicing.

The issue relating to the drivers was resolved on 23 April 2014.

The failure to reach agreement on the second issue prompted the respondent to raise the disputed amended assessments on 23 June 2014.

The appellant objected to these amended assessments on 22 July 2014. The respondent disallowed the objection on 14 November 2014. The appellant gave notice of its intention to appeal on 18 November 2014 and filed its notice of appeal on 28 November 2014 and case on 18 December 2014. The respondent duly filed the Commissioner's case on 30 March 2015.

The appellant contended, that, the rentals in the agreements were fair and reasonable while the respondent contended, that, they were outrageously low so as to constitute under invoicing and therefore tax avoidance.

The respondent compared the local charges imposed by the appellant on three (3) local tobacco companies on pp1.1 to 3.2 of exhibit 2 against the Currency Declaration Form, CD3 income received from the related party on pp4.1 to 9.2 of exhibit 2.

The income earned from local operations and from CD3 rentals was conveniently summarised by the appellant in tabular form…, which I reproduce below as Table 1.

Table 1

	2009	2010	2011	2012
CD3-revenue R	2 579 685.00	2 429 399.00	1 815 806.00	1 795 380.00
CD3 revenue USD	298 658.98	336 530.44	257 329.12	224 855.18
Other local income USD	144 730.00	245 493.00	321 525.47	298 391.98
Total US$ in FSs	443 388.98	582 023.44	578 854.59	523 247.16
Av exchange rate	8.64	7.22	7.06	7.98

Notwithstanding the absorption of running costs by the related party, the respondent maintained, that, the rentals were outrageously low and unrealistic in comparison with the charges imposed by local cross border hauliers.

It applied the related party's 2013 rate of R22.47 on the distance covered in each year to compute the taxable income set out on page 50.2 of exhibit 1, which formed part of the amended assessments.

It was common cause that the rate was in tandem with the market rates charged by third parties in 2013.

At the appeal hearing, the appellant relied on the evidence of one of its directors and public officer and nephew to its 80 year old founder and Managing Director, who has stood in the position of a General Manager since 1995 and has been a member of the executive committee of the Transport Operators Association of Zimbabwe, one HJR and the 374 paged lever arch file, exhibit 1, and one paged exhibit 4.

The respondent called the evidence of two of its Chief Investigations Officers, one of whom was a purported transfer pricing specialist and relied on the 32 paged exhibit 2 and 6 paged exhibit 3A, 3B and 3C in addition to the Rule 11 documents filed of record.

At the pre-trial hearing of 1 June 2015, the following six issues were referred on appeal for determination:

(i) Did the appellant in fact receive the additional income assessed by the respondent, and, if so, what was the source of the income.

(ii) Whether or not the transactions between the appellant and the related party resulted in the appellant being deemed to have received additional income for tax purposes.

(iii) Whether or not the transactions that were being carried out by the appellant with its related company fall within the ambit of section 98 of the Income Tax Act [Chapter 23:06], and, if not, whether the respondent was entitled, as a matter of law, to utilise section 98 of the Income Tax Act.

(iv) In the event of any such additional income, or deemed income, having been correctly assessed by the respondent, whether the respondent was obligated to deduct from that income the expenses which would have been incurred had the appellant undertaken such transactions; in particular, the cost of the diesel that would have been expended in conducting such transactions.

(v) Whether or not SI163 of 2014 is applicable in casu.

(vi) The appropriate penalty.

At the commencement of the appeal hearing, on 14 September 2015, counsel for the appellant abandoned the fourth issue and persisted with the remaining five issues.

The evidence was mostly common cause.

The appellant was incorporated on 12 June 1960 under a different name and adopted its present name on 10 June 1983. The major shareholders of the appellant were the 80 year old Managing Director and a registered trust.

The Managing Director also held the same position in the related party, a company he promoted in 1978.

It was common cause, that, even though the two entities did not have common shareholders, they were related parties….,.

The appellant operated in the local and regional transport industry with a complement of 24 mechanical horses, 83 trailers, and 11 tankers. A common recurring statement in the Director's report in each of the four tax years under consideration was that it was “engaged in transport and operated principally in Africa.”

The operations were manned by 7 Head Office staff, 10 workshop employees, and 110 local, highly skilled articulated truck and trailer, internationally certified drivers with mostly over 10 years driving experience.

The transport business is dependent on the availability of imported fuel, spare parts, and tyres.

In 1996, the appellant had difficulties in sourcing scarce foreign currency locally to service its cross border operations. In the aftermath of the demise of apartheid in South Africa, in 1994, the South African economy became more integrated with other regional economies.

The appellant alleged, that, it staved off the spectre of liquidation by concluding the 1996 rental agreement with the related party through which the related party used the appellant's equipment to carry goods, by road, between South Africa and the designated countries to the north.

The agreement was executed on 28 October 1996 and renewed for three years on 8 October 2003 and then extended for a further 3 years on 16 August 2006. On 6 July 2009, in deference to the introduction of the multi-currency regime in Zimbabwe, the agreement was infused with an indefinite lifespan.

The 2003 agreement was signed by the uncle and nephew on behalf of the related party and the appellant, respectively. The 2006 and 2009 agreements were signed by other representatives of the related party with the nephew.

The notable terms and conditions of the agreements were that the related party used the appellant's excess fleet based on an agreed fixed fee per leg per trip and not on the distance covered.

With effect from 1 July 2009, the rental was fixed at ZAR1,000 per journey for the use by the related party of any locally registered trailer drawn by a South African registered horse. The rental for a horse, and a horse and trailer, were indicated on pages 15 and 16 of exhibit 1.

These rentals were all increased annually by 10%.

In addition, the related party was responsible, at its own cost, for running maintenance and repairs of the equipment comprising of the cost of insurance, tyres, rims, spare parts and fuel and regulatory requirements such as road toll fees, environmental and port health fees attached to the equipment but not to any damage attributable to the negligence of the appellant's drivers or third parties.

The appellant employed and remunerated the local drivers seconded to the related party and did not receive any compensation from the related party.

However, the appellant invoiced the related party for any maintenance and repairs carried out in Zimbabwe on all equipment used by the related party.

It was the uncontroverted testimony of the nephew, that, a portion of the fee was surrendered to the Reserve Bank of Zimbabwe and another used to purchase the requirements of the appellant's local fleet, while the balance was sold on the inter-bank market to meet local expenses and staff salaries and wages.

This situation continued until hyperinflation adversely affected the viability and pricing of the domestic transport services in 2008.

The appellant, however, deliberately failed to disclose the 2003 agreed rentals in appendices C1, C2 and C3 to that agreement that were adopted by both the 2006 and 2009 agreements and the logistical and rental agreements of 1996 but elected to reveal the escalation clause set out on page 12.29 of exhibit 1.

However, the agreed rentals for the rented horses were indicated on page 15 and 16 of the exhibit 1 for each of the four (4) tax years and for each of the routes covered.

The southbound trip to Harare and Kwekwe in Zimbabwe from Lusaka, the Copperbelt, Blantyre and Lilongwe accrued different rentals, denominated in South African rands from the north bound trips as indicated in the following table 2:

Table 2

2009

2010

2011

2012

2013

LSK-HRE

HRE-LSK

1420

2 310

1 562

2 541

1 800

3 000

2 050

3 420

2 260

3 760

CPBLT-HRE

HRE-CPBLT

1 970

3 930

2 167

4 323

2 500

5 000

2 850

5 700

3 140

6 270

BLA-KWE

KWE-BLA

NIL

3 110

NIL

3 421

NIL

4 000

NIL

4 560

NIL

5 020

BLA-HRE

HRE-BLA

1620

2 910

1 782

3 201

2 050

3 680

2 330

4 200

2 570

4 620

LLE-HRE

HRE-LLE

2 080

3 370

2 288

3 707

2 630

4 300

3 000

4 900

3 300

5 400

Transit rates

LSK-HRE –JBG

JBH-HRE-LSK

1 320

2 950

1 452

3 245

1670

3 730

1 900

4 200

2 100

4 620

CBLT-HRE-JBG

JBG-HRE-CBLT

1 570

3 650

1 727

4 015

2 000

4 620

2280

5 200

2 500

5 720

2009

2010

2011

2012

2013

BLA-HRE-JBG

JBG-HRE-BLA

1 560

3 470

1 716

3 817

2 025

4 390

2 300

5 000

2 530

5 500

LLE-HRE-JHB

JHG-HRE-LLE

1 740

3 930

1 914

4 323

2 200

4 970

2 500

5 600

2 750

6 160

The northbound routes to Zimbabwe consisted of the Johannesburg to Harare, Johannesburg to Bulawayo, Johannesburg to Midlands, and Johannesburg to Livingstone routes. The rental was the same for each route in each of the four (4) years, respectively.

In 2009 it was R5,050; in 2010 it was R5,555; in 2011 it was R6,400; and, in 2012 it was R7,300.

The north-bound routes from Zimbabwe were the Harare-Lusaka, Harare-Copperbelt, Kwekwe-Blantyre, Harare-Blantyre and Harare-Lilongwe routes.

The rentals were different on each route and in each year. The cheapest was the Harare to Lusaka route ranging between R2,310 in 2009 and R3,420 in 2012. The most expensive was the Harare to Copperbelt route, which ranged between R3,930 in 2009 and R5,700 in 2012.

The transit routes were the Johannesburg to Livingstone and Johannesburg to Harare destined for Lusaka route, for which the related party paid between R2,950 in 2009 and R4,200 in 2012 and the Johannesburg to Harare destined for Copperbelt for which the related party paid R3,650 in 2009 and R5,200 in 2012 to the appellant.

The last transit route was from Johannesburg to Harare destined for Blantyre and from Johannesburg to Harare destined for Lilongwe. The related party paid the appellant between R3,470 in 2009 and R5,000 in 2012 for the route to Blantyre and between R3,930 in 2009 and R5,600 in 2012 for the route to Lilongwe.

The rental for the trailer only was R1,270 in 2011 and R1,450 in 2012.

The south bound journeys were the exact opposite of the north bound ones.

The rates from the Zimbabwe centres to Johannesburg were the same in each year. The rentals were R2,810 in 2009, and R3,091 in 2010 and R3,560 in 2011 and R4,060 in 2012.

The south bound transit rates were Lusaka to Johannesburg via Harare that ranged between R1,320 in 2009 and R1,900 in 2012 while the Copperbelt to Johannesburg via Harare route ranged between R1,570 in 2009 and R2,280 in 2012; and, lastly, the transit rate between Blantyre and Johannesburg via Harare ranged between R1,560 in 2009 and R2,300 in 2012 while the Lilongwe to Johannesburg via Harare route ranged between R1,740 in 2009 and R2,500 in 2012.

The related party paid R1,270 for the trailer per leg per trip on each of these routes. In 2012, the north bound trailer rental was R1,450.

The journey from Johannesburg to Harare and back consisted of two trips while the journey from Johannesburg to any of the destinations outside Zimbabwe and back consisted of four (4) trips.

The maintenance and running expenses incurred by the related party, in respect of 21 mechanical horses, between 1 January 2009 and 31 December 2012 amounted to R1,854,841 for spares and maintenance…,.; US$436,983 for labour on repairs and maintenance.

In the same period, tyres worth R1,151,777 were purchased by the related party and R536,021=51 was expensed on 69 trailers. The related party also spent the sum of R9,128,122 on fuel, US$1,809,460 on insurance, and US$40,992 on lubricants.

The mechanical horses traversed 1,771,964km…, during the four year period in question. The distance covered by each identified mechanical horse, and the cost of maintenance and running expenses, tyres and fuel in each year was listed on pages 23 to 24.6 of exhibit 1.

The yearly amounts expensed on each line item by the related party on the leased equipment was conveniently summarised by the appellant on pp24 and 42.5 of exhibit 1.

I reproduce the essential costs in Table 3 below.

Table 3: Expenses paid by related party on leased equipment

	2009	2010	2011	2012	Total
Km travelled	359 478	505 748	456 664	450 074	1 771 964
Spares in R	684 101	282 918	413 281	474 541	1 854 841
Labour in R	161 168	66 653	97 365	111 797	436 983
Tyres in R	233 661	328 736	296 832	292 548	1 151 777
Fuel in R	1 406 193	2 198 516	2 484 789	3 039 323	9 128 822
Insurance in R	489 000	489 000	440 100	391 360	1 809 460
Lubricants in R	15 119	6 252	9 134	10 487	40 992
Total cost in R	2 989 241	3 372 076	3 741 501	4 320 058	14 422 875
Average cost per km in R	8.32	6.67	8.19	9.60	8.14

The respondent derived the gross charges of cross-border transactions from the third party verification exercise that it conducted on three local cross-border hauliers, TCS, CT and CCC.

It wrote exhibits 3A, 3B and 3C between 2 July 2013 and 16 September 2013 seeking the gross rates in both United States dollars and South African rands charged in respect of each tax year under investigation on 19 regional routes traversed by the related party.

The responses…, were received between 5 August and 19 September 2013.

These parties did not offer a separate truck and trailer service. They factored into the freight rates the operational costs of fuel, vehicle inspection, toll and environmental management fees, insurances and driver's allowances, the distance covered, the nature of the cargo, and competition.

The freight rates ranged between US$1.60 per km and US$2.30 per km for both south and north bound routes during the period to the end of the 2012 tax year.

In respect of the 2013 tax year, the average rate was US$2.50 per km.

One of the local hauliers supplied very detailed information on the freight rates. It used the cost plus mark-up model where the mark-up ranged between 7% and 12%. It charged between US$750 and US$1,300 for the south bound routes and between US$1,300 and US$2,500 for the north bound routes. While it charged per trip like the related party, it translated these charges to between US$1.60 and US$2.30 per km.

The nephew listed 11 advantages that accrued to the appellant from the rental agreement.

The appellant was, inter alia, assured of prompt and steady flow of income and a regular foreign currency supply, accounted through the Reserve Bank of Zimbabwe CD3 forms, to meet local expenses from a single client; it's fleet was maintained at no cost to it and prevented from deteriorating from disuse; it was able to offer limited local transport services; it did not incur marketing and clearing and depot expenses in South Africa, Zimbabwe, Zambia and Malawi; it had a guaranteed free source of fuel at its depot in Zimbabwe for local use; and, lastly it was able to retain a pool of experienced internationally certified drivers starving it off liquidation and heavy retrenchment costs.

On the other hand, the related party benefited from the use of authorised equipment on Zambian, Malawian, Batswana and Mozambican public roads and highly skilled drivers who were unable and unwilling to secure work permits in South Africa.

It was common cause, that, the respondent treated the appellant as a cross-border haulier and applied the 2013 freight rate charged by the related party, of R22.47 per km, retrospectively to each of the tax years in dispute. It ignored the aggregate expenses of R21.20 per km incurred in raising this amount.

It computed the gross revenue earned from the leased equipment by multiplying this amount by the number of kilometres travelled in each year and converted the total to United States dollars using the uniform and inaccurate cross rate of 1US$ to R10.

The respondent further calculated the yearly running maintenance and repair costs expensed on the leased trucks and converted it to United States dollars using the inaccurate exchange rate of 1US$ to R10 and added the figure to the transport services income in the annual financial statements derived from the CD3 forms.

It then deducted the aggregate amount from the gross revenue earned from the leased equipment aggregate figure from the CD3 revenue and running maintenance and repair costs. The variance, whether positive or negative, was added to income in the computation of taxable income.

The appellant gave contrary evidence in two respects:

(i) The first was on whether it operated a transport service in Zimbabwe only or whether it also operated across our borders.

(ii) The second was on whether it charged per trip or per km in respect of the local transport services.

The sole witness called by the appellant testified that the appellant operated a transport service in Zimbabwe only.

In each of the tax years in issue the same witness signed the Director's report in which he proclaimed that the appellant operated principally in Africa.

In regards to the second aspect, he averred, in paragraph 39 of his statement, which he adopted in his evidence in chief, that, the appellant charged a United States dollar denominated daily rate.

At p50.1 paragraph 12 of exhibit 1, the appellant's South African based external accountants wrote that “the appellant does operate its own vehicles locally within Zimbabwe and in those instances it charges a US$ rate per km.”

In fact, under cross-examination, the witness maintained, that, the local expenses were based on operational overheads comprised of running costs, lubricants, fuels, salaries and wages, and not on the distance or the nature of the load.

He maintained, that, the dominant intention behind these charges was to cover overheads and remain viable and not the avoidance or reduction of tax. He was adamant, that, even though the appellant was a perpetual loss maker before, during, and after the tax years in question, the rentals were market based.

He sought to demonstrate, by reference to a random selection of charges on p31.3 to 31.5 of exhibit 1 that the CD3 income constituted 42% of the related party's Group profit….,.

It was common cause, that, the fees charged on north bound routes were higher than those on south bound routes because the former carried finished products while the latter conveyed raw materials. It was common cause, that, the exchange rate used in the computation of the disputed income tax of 1US$ to R10 was inaccurate in respect of each of the tax years under consideration.

The sole witness applied the “correct rates” used by the related party in each of these tax years to the formula invoked by the respondent including the use of the wrong exchange rate and produced different results in exhibit 4.

The correct gross revenue rates per km were ZAR16.55 in 2009; ZAR17.52 in 2010; ZAR19.45 in 2011; and ZAR20.04 in 2012.

The appellant would have incurred a loss of US$129,377 instead of a profit of US$65,433=97 in 2009; a loss of US$33,160 instead of a profit of US$217,185=16 in 2010; a loss of US$64,793 instead of a profit of US$73,119=91 in 2011 and a loss of US$53,304 and not a profit of US$56,063=46 in 2012….,.

The respondent did not use these comparative rates but the 2013 figure suggested by the appellant's South African based external accountants as acknowledged by the Commissioner-General in her determination of 14 November 2014…,. She wrote that:

“The basis or rate of R22.47 that was used to determine the taxable income on estimated assessments was the rate that was used by yourselves in the tax year 2013. In the absence of information on other companies that could be compared with the appellant dealings when they were determining taxable income, this rate becomes the only basis for estimating income. Please note that if you have information pertaining to the actual and correct rates that were used in the tax years under contention, you are free to submit it for consideration.”

I turn to determine the issues that were referred on appeal.

HH728-17 : C R S (PVT) LTD vs ZIMBABWE REVENUE AUTHORITY
Ruled By: KUDYA J

Determination of the issuesDid the appellant in fact receive the additional income assessed by the respondent, and, if so, what was the source of the income?It was common cause, that, the appellant did not receive the additional income that was assessed by the respondent. Rather, the respondent imputed notional income ...

Determination of the issues

Did the appellant in fact receive the additional income assessed by the respondent, and, if so, what was the source of the income?

It was common cause, that, the appellant did not receive the additional income that was assessed by the respondent. Rather, the respondent imputed notional income to the appellant by invoking the provisions of section 98 of the Income Tax Act.

I hold, as a matter of hard fact, that, the appellant did not receive the assessed income.

Whether or not the transactions between the appellant and the related party resulted in the appellant being deemed to have received additional income for tax purposes?

It seems to me, that, the second issue requires some recasting to reflect the real dispute between the parties.

The issue contemplated by the parties was whether or not the respondent was entitled to deem additional income from the nature of the transactions between the two related parties.

The respondent did not in any way suggest that these undertakings constituted simulated transactions.

Accordingly, the sentiments pronounced in Inland Revenue Commissioners v Duke of Westminister [1936] AC 1 (HL)…, and adopted by the Federal Supreme Court in The Master v Thompson's Estate 1961 (2) SA 20 (FSC)…, and Barnett v Commissioner of Taxes 1959 (2) SA 713 (FSC)…, and the South African cases of Commissioner for Inland Revenue v Estate Kohler 1953 (2) SA 584 (A)…, and MacKay v Fey NO and Anor 2006 (3) SA 182 (SCA)…, have no application in the present matter.

While the respondent did not challenge the genuineness of the agreements. it compared the rates charged by the appellant with the charges imposed by the related party to its own clients, and the charges of some of the local trans-border hauliers and determined, that, the charges were deliberately designed to avoid the payment of income tax from the leased equipment.

The respondent accordingly invoked the provisions of section 98 of the Income Tax Act to bring the appellant to book.

Whether or not the transactions that were being carried out by the appellant with its related company fall within the ambit of section 98 of the Income Tax Act [Chapter 23:06], and, if not, whether the respondent was entitled, as a matter of law, to utilize section 98 of the Income Tax Act?

Counsel for the appellant submitted, that, the provisions of section 98 of the Income Tax Act were not applicable to the transactions between the appellant and the related party, both from a factual and legal perspective, while counsel for the respondent made contrary submissions.

The Onus

Before dealing with the provisions of section 98 of the Income Tax Act, it is necessary that I resolve the issue of onus.

I discussed the issue in H Bank Zim Ltd v Zimbabwe Revenue Authority HH575-15. I concluded my analysis, at 1022C, thus:

“The onus, therefore, rests on the taxpayer to establish, on a balance of probabilities, that, the opinion formed by the Commissioner was wrong. I therefore agree with Mr Magwaliba, that, the Commissioner bears no onus to establish, on a balance of probabilities, that his opinion was correct.”

Counsel for the appellant relied on two South African Supreme Court of Appeal cases for the submission, that, the onus lies on the Commissioner to show that the effect of the transaction was to avoid, postpone, or reduce the tax liability.

In Commissioner for Inland Revenue v Conhage (Pty) Ltd (formerly Tycon (Pty) Ltd) 1999 (4) SA 1149 (SCA)…,; 61 SATC 391 (SCA)…., HEFER JA stated that:

“The onus is on the Commissioner to prove that its effect was to avoid or postpone the liability for tax or reduce the amount thereof. Upon proof that this was the case, it is presumed in terms of ss(4) that the effect of the transaction was also its sole and main purpose.”

Again, HEHER JA in Commissioner, South African Revenue Services v LG Electronics SA (Pty) Ltd 2012 (5) SA 439 (SCA)…, said:

“Affording due weight to those of the grounds relied on by the appellant which were either common cause or not seriously denied by the respondent, the conclusion of the learned judge, that, the Commissioner had proved no stratagem on the part of the respondent in regard to the importation of the screens, appear to have been justified.

There was no evidence to suggest, that, the respondent manipulated the design or manufacturing or the importation process to avoid payment of duties. This seems clearly to fall within that category of cases where a man may legitimately order his affairs so that the tax is less than it otherwise would be.”…,.

The views of the South African Court of Appeal in these two cases, are at variance with the sentiments of MACDONALD JP in Commissioner v F 1976 (1) RLR 106 (A)…, that:

“The next point is that the Commissioner is obliged to exercise his powers under the section if the transaction, operation, or scheme has the stipulated 'effect' if he is of the 'opinion' that the requisite abnormality is present and if he is further of the 'opinion' that the taxpayer's purpose was as stated in the section.

Here, again, there is a clear indication that it is the intention of the Legislature to cast the net in such a way as to block every possible avenue of escape.

This intention is also manifest by the further provision, that, when the stipulated effect is present and the requisite opinions are held, the onus rests on the taxpayer (under the Eleventh Schedule to the Act) to establish, on a balance of probabilities, that, he did not have the purpose set out in the section.

Moreover, the section strikes not only at avoidance but also at mere postponement and reduction. This is a further indication of the Legislature's intention to make the section all-embracing.

In short, the Legislature, by every conceivable means, has endeavoured to make it extremely difficult for a taxpayer to avoid the payment of tax, which, in the normal course of his business, and, but for his desire to avoid, postpone, or reduce such payment, would fall due.”

The sentiments expressed by MACDONALD JP are binding on me and override the expressions of the South African Supreme Court of Appeal which merely constitute persuasive authority.

Again, it seems to me, that, section 63 of our Income Tax Act casts an over-arching shadow over the construction of section 98 of the Income Tax Act.

The Commissioner employs section 98 of the Income Tax Act to impute income to the taxpayer and raises assessments against which a dissatisfied taxpayer objects and appeals.

Such an objection and appeal challenges the assessment raised by the Commissioner and thus falls squarely into the provisions of section 63 of the Income Tax Act.

Accordingly, I maintain, that, the onus remains on the taxpayer to establish that the first and second opinions of the Commissioner were wrong.

The attempt to render the section 63 onus subservient to section 98, based on South African authority, is contrary to our law.

“98 Tax avoidance generally

Where any transaction, operation or scheme (including a transaction, operation or scheme involving the alienation of property) has been entered into or carried out, which has the effect of avoiding or postponing liability for any tax or of reducing the amount of such liability, and which, in the opinion of the Commissioner, having regard to the circumstances under which the transaction, operation or scheme was entered into or carried out —

(a) Was entered into or carried out by means or in a manner which would not normally be employed in the entering into or carrying out of a transaction, operation or scheme of the nature of the transaction, operation or scheme in question; or

(b) Has created rights or obligations which would not normally be created between persons dealing at arm's length under a transaction, operation or scheme of the nature of the transaction, operation or scheme in question; and the Commissioner is of the opinion, that, the avoidance or postponement of such liability or the reduction of the amount of such liability was the sole purpose or one of the main purposes of the transaction, operation or scheme, the Commissioner shall determine the liability for any tax and the amount thereof as if the transaction, operation or scheme had not been entered into or carried out, or in such manner as in the circumstances of the case he considers appropriate for the prevention or diminution of such avoidance, postponement, or reduction.”

The requisite elements that must all be fulfilled before the Commissioner can invoke the section were set out in Secretary for Inland Revenue v Geustyn, Forsyth and Joubert 1971 (3) SA 567 (A)…, thus:

(a) A transaction, operation or scheme entered into or carried out;

(b) Which has the effect of avoiding or postponing liability for tax on income or reducing the amount thereof, and which;

(c) In the opinion of the Secretary, having regard of the circumstances under which the transaction, operation or scheme was entered into or carried out was entered into or carried out;

(i) Was entered into or carried out by means or in a manner which would not normally be employed in the entering into or carrying out of a transaction, operation or scheme of the nature of the transaction, operation or scheme in question;

(ii) Has created rights or obligations which would not normally be created between persons dealing at arm's length under a transaction, operation or scheme of the nature of the transaction, operation or scheme in question; and that

(d) The avoidance, postponement, or reduction of the amount of such liability was, in the opinion of the Secretary, the sole or one of the main purposes of the transaction, operation or scheme.

See ITC 1631 (1997) 60 SATC 63 (Z)…,.; Commissioner of Taxes v F 1976 (1) RLR 106 (A)…,.; A v Commissioner of Taxes 1985 (2) ZLR 223 (H)…,.; G Bank Zimbabwe Ltd v Zimbabwe Revenue Authority 2015 (1) ZLR 348 (H)…,.; H Bank Zimbabwe Ltd v Zimbabwe Revenue Authority HH575-15.

HH728-17 : C R S (PVT) LTD vs ZIMBABWE REVENUE AUTHORITY
Ruled By: KUDYA J

Whether or not the agreement constituted a transaction, operation or scheme?It was common ground that the agreements between the related parties fell into the category of a transaction, operation or scheme.Whether the agreement had the effect of avoiding, postponing, or reducing the income tax liability of the appellant?Counsel for the ...

Whether or not the agreement constituted a transaction, operation or scheme?

It was common ground that the agreements between the related parties fell into the category of a transaction, operation or scheme.

Whether the agreement had the effect of avoiding, postponing, or reducing the income tax liability of the appellant?

Counsel for the appellant contended, that, the transactions were conceived in circumstances that precluded the contemplated effect of avoiding, postponing, or reducing the appellant's taxable income.

Counsel for the respondent argued that they had such an effect.

In Commissioner of Taxes v F 1976 (1) RLR 106 (A)…, MACDONALD JP described it as the “stipulated effect” and held that the Commissioner was obliged to exercise his powers under the section if the transaction, operation or scheme had the stipulated effect.

The practical results of the agreements were captured in the unaudited financial statements of the appellant in respect of each tax year.

It made losses of US$41,675 in 2009; US$115,920 in 2010; US$138,663 in 2011; and US$94,535 in 2012. It was common cause that the appellant made assessed losses before, during, and after the period covered by the assessments.

The appellant never declared dividends despite the bullish going concern Annual Reports.

In 2010, 2011 and 2012 it procured loans from the related party of US$36,412, US$82,559 and US$114,346, respectively.

That Zimbabwe taxes were in the related parties contemplation when they executed the 2003 agreement was apparent from the note on p12.29 of exhibit 1 which reads:

“The rates set out above may be adjusted from time to time to provide for any taxes or other charges levied by Central Government or any local authority in Zimbabwe, as the case may be, which may directly or indirectly effect the said rates, provided such increase will only be effective on the first day of the calendar month following the month in which the related party has received written notice thereof from the appellant.”

Accordingly, I agree with counsel for the respondent, that, the agreements had the stipulated effect of avoiding or reducing the appellant's liability for income tax.

The circumstances prevailing at the time the agreement was entered into or carried out?

In the hyper-inflationary era, the appellant averred, that, it could not secure local contracts that would enable it to fully utilize all its assets. The local currency lost value at an alarming rate. The pricing of transport services became a nightmare. The income derived from transport services could not sustain the local operations.

It was faced with the spectre of liquidation and staff retrenchments.

The effect of which was that its loyal and skilled manpower, mainly consisting of approximately 110 drivers, would lose their only source of livelihood for themselves and their families while the company mechanical horses and trailers would deteriorate through disuse.

The appellant could not access the foreign currency required to purchase spare parts and fuel necessary to keep the local operations running. Hyperinflation had a negative effect on its ability to meet local overheads such as salaries and wages and repairs and maintenance of the vehicles.

It was saved from this predicament by the related party, an international haulier operating from South Africa to an array of destinations in sub-Saharan Africa. It required the excess capacity held by the appellant to meet its own contracts, and the experienced, skilled, and responsible pool of drivers in the employ of the appellant who could not secure work permits in South Africa. The appellant held road permits for the use of these assets on the routes desired by the related party.

The comparative advantages for the appellant were listed by the General Manager in charge of local operations.

The appellant was, inter alia, assured of prompt and steady flow of income and a regular foreign currency supply, accounted through the Reserve Bank of Zimbabwe CD3 forms, to meet local expenses from a single client; its fleet was maintained at no cost to it and prevented from deteriorating from disuse; it was able to offer limited local transport services; it did not incur marketing and clearing and depot expenses in South Africa, Zimbabwe, Zambia and Malawi; it had a guaranteed free source of fuel at its depot in Zimbabwe for local use; and, lastly, it was able to retain the pool of experienced, internationally certified drivers starving it off from liquidation and heavy retrenchment costs.

The parties agreed on charges per route rather than per kilometre.

With the introduction of the multi currency economic regime in Zimbabwe in 2009, hyperinflation vanished.

The parties re-negotiated the original agreement and introduced a 10% annual escalation clause of the charge per route.

Whether the transaction was entered into or carried out in a manner which would not be normally employed for such a transaction?

In Hicklin v Secretary for Inland Revenue 1980 (1) SA 481 (A)…; 41 SATC 179…, TROLLIP JA set out the practical way of applying the normality and arm's tests. He stated that:

“When the 'transaction, operation or scheme' is an agreement, as in the present case, it is important, I think, to determine first whether it was concluded at arms' length. That is the criterion postulated in para (ii).

For 'dealing at arms length' is a useful and often easily determinable premise from which to start the enquiry.

It connotes that each party is independent of the other, and, in so dealing, will strive to get the outmost possible advantage out of the transaction for himself…,. Hence, in an at arms' length agreement, the rights and obligations it creates are more likely to be regarded as normal than abnormal in the sense envisaged by para (ii).

And, the means or manner employed in entering into it or carrying it out are also more likely to be normal than abnormal in the sense envisaged by para (i).

The next observation is that, when considering the normality of the right or obligations so created or of the means or manner so employed, due regard has to be paid to the surrounding circumstances.

As already pointed out, s103(1) itself postulates that.

Thus, what may be normal because of the presence of circumstances surrounding the entering into or carrying out of an agreement in one case, may be abnormal in an agreement of the same nature in another case because of the absence of such circumstances.

The last observation is that the problem of normality or abnormality of such matters is mainly a factual one. The Court hearing the case may resolve it by taking judicial notice of the relevant norms or standards or by means of the expert or other evidence adduced there anent by either party.”

See also the sentiments of HEFER JA in Commissioner for Inland Revenue v Conhage (Pty) Ltd (formerly Tycon (Pty) Ltd) 1999 (4) SA 1149 (SCA)…,.; 61 SATC 391 (SCA)….,.

It is a notorious fact of commercial life, that, related parties enter into contractual arrangements.

I did not discern any abnormalities in the nature of the agreements nor in the identities of the signatories.

There was, however, an admixture of the normal and abnormal in the manner in which the agreements were carried out.

For starters, the appellant over-emphasized the indisputable uniqueness of the manner in which the agreements were carried out.

In the letter of 24 October 2013…, the external accountants for the appellant wrote that “the appellant's position is unique in the transport regime of Zimbabwe and there is no other haulier which provides a similar service.”

The same point was repeated in the letter of 6 December 2013…, where the same accountants indicated that they “were unaware of any Zimbabwean company which operates in the same unique situation as the appellant.”

The fixed rental fee, with all maintenance and running costs for the account of the tenant model, was unique to the related parties and therefore abnormal.

Other hauliers, including the related party, conducted the haulage business for their own account. The charge per trip, and not per kilometre, was normal as demonstrated by two of the three local cross-border hauliers engaged by the respondent for comparative purposes.

However, the charge per leg per trip was abnormal.

In charging per trip, the comparative cross-border hauliers took into account a variety of factors such as overheads, distance, and the nature of the load. What emerged from the comparative correspondence was that the normal charging method was the cost plus mark-up model.

The ingredients that went into the charging model of the appellant and the related party were not disclosed. That, in my view, was abnormal.

In addition, the appellant was not candid with both the Commissioner and the Court in regards to the pre-2009 charges.

The 2009 agreement recorded that “the change in currency, from the Zimbabwean Dollar to United States Dollar, which took effect in February 2009, did not have any effect on the agreed rates as set out in the [8 October 2003] October Agreement.”…,.

These were in South African rands, which remained, and still remain, the currency of account of the agreement.

Such disclosure would have assisted in ascertaining whether the advent of the multi-currency era resulted in an increase or a decrease of the rental charged in each of the four tax years under consideration.

I add, for good measure, that, the payment of the remuneration of the drivers used by the related party, without any form of compensation, was abnormal; as was the drawing of the related party's fuel in Zimbabwe for free.

In assessing the information availed to the Commissioner by the appellant, and to this Court, by both the appellant and the Commissioner, I am satisfied the agreements were carried out in a manner which would not normally be employed in such transactions.

In the light of the formulation of TROLLIP JA in Hicklin v Secretary for Inland Revenue 1980 (1) SA 481 (A)…; 41 SATC 179…, it appears to me that the two parties were not acting at arm's length.

Whether the agreement created rights or obligations which would not normally be created between persons dealing at arm's length under such a transaction?

It was clear that each party derived tangible benefits from the agreements.

The related party had the right to lease the equipment and the obligation to pay rentals and maintain the equipment. The appellant received a fixed rental.

The obligation to meet the maintenance and running expenses was unique and abnormal. The fixed rentals, which negated the cost plus mark-up principle, was abnormal and would not have been concluded by parties dealing at arm's length.

Again, the use of the drivers by the related party, for no compensation, just like the drawing of its fuel by the appellant for free, were rights that would not have been created by parties acting at arm's length.

I hold, that, the appellant did not act at arm's length with the related party and concluded, and executed, an agreement that was inimical to its bottom line.

Whether the avoidance or reduction of tax was the sole or one of the main purposes of the agreement?

The appellant established, that, other economic considerations informed its decision to enter into this agreement. It sought to avoid liquidation and attendant costly retrenchments.

These purposes were achieved. The financial statements showed that it was in each year “audited” as “a going concern”.

It seems trite to me, that, the purpose of a private company is to make a profit.

The appellant is not a non-profit making organisation. The appellant was content with the untenable situation in which it made, and continues to make, losses without any prospects of ever making a profit.

It seems to me, that, the fixed rental was deliberately designed to ensure that the appellant would remain viable enough to survive liquidation and costly retrenchments, and, at the same time, avoid or reduce its income tax liability.

That the spectre of income tax, and, indeed, other imposts were contemplated by the parties was apparent from the note on p12.29 of exhibit 1, cited above, where the parties agreed to adjust and revise the fixed rental in tandem with “any taxes or other charges levied by Central Government or any local authority in Zimbabwe, as the case may be, which may directly or indirectly effect the said rates.”

As it turned out, the rate was merely increased in tandem with inflation, and not taxes, because the appellant continued to make losses.

I am satisfied that the avoidance or reduction of income tax liability was one of the main purposes of the agreement(s).

In Partington v Attorney-General (1869) LR 4 HL 100…, LORD CAIRNS stated that:

“As I understand the principle of all fiscal legislation, it is this: if the person sought to be taxed comes within the letter of the law, he must be taxed, however great the hardship may appear to the judicial mind to be. On the other hand, if the Crown, seeking to recover the tax, cannot bring the subject within the letter of the law, the subject is free, however apparently within the spirit of the law the case might otherwise appear to be.”

And, in CIR v IHB King; CIR v AH King 1947 (2) SA 196 (A)…, WATERMEYER CJ made the poignant observation, that:

“If a transaction is covered by the terms of the section, its provisions come into operation; if it is not, then, its provisions cannot be applied.”

In my view, the transactions undertaken by the appellant fell into the all-embracing provisions of section 98 of the Income Tax Act. The respondent correctly invoked this provision in assessing the appellant to income tax in each of the four tax years in question.

It is well to distinguish the finding in the present case with the findings in G Bank Zimbabwe Ltd v Zimbabwe Revenue Authority 2015 (1) ZLR 348 (H) and H Bank Zimbabwe Ltd v Zimbabwe Revenue Authority HH575-15.

The conduct of the banks, unlike in the present case, passed the normality and arm's length tests. It is in such circumstances that the “apt reminder” is invoked against the Commissioner.

In cases where these twin principles do not apply, such as in R Ltd & Anor v Commissioner of Taxes 1983 (1) ZLR 157 (HC); 45 SATC 148 (ZH)…, and Michau v Maize Board 2003 (6) SA 459 (A)…., and Commissioner for Inland Revenue v Estate Kohler 1953 (2) SA 584 (AD)…, the taxpayer is at liberty to reduce his tax liability by taking advantage of positive incentives prescribed in the Taxes Acts without attracting the stigma of tax avoidance.

HH728-17 : C R S (PVT) LTD vs ZIMBABWE REVENUE AUTHORITY
Ruled By: KUDYA J

Whether the respondent correctly assessed the appellant?Counsel for the appellant contended, by reference to exhibit 4, that, the assessment was wrong and submitted that it should be set aside.Counsel for the respondent contended, that, the determination contemplated by the concluding words of section 98 of the Income Tax Act was ...

Whether the respondent correctly assessed the appellant?

Counsel for the appellant contended, by reference to exhibit 4, that, the assessment was wrong and submitted that it should be set aside.

Counsel for the respondent contended, that, the determination contemplated by the concluding words of section 98 of the Income Tax Act was based on estimated and not actual and correct rates.

The concluding words of section 98 of the Income Tax Act require the respondent to:

“Determine the liability for any tax and the amount thereof as if the transaction, operation or scheme had not been entered into or carried out or in such a manner as in the circumstances of the case it considers appropriate for the prevention or diminution of such avoidance, postponement, or reduction.”

The appellant strongly argued against the alteration of the contract of lease concluded between the related parties by the respondent.

While counsel for the respondent conceded, that, the respondent did not have the legal authority to alter the contract of the related parties, he forcefully argued, that, it had the power either to disregard the existence of the contract or to neutralise its perverse income tax consequences and assess a fair and reasonable tax.

He contended, that, the respondent was empowered to make assessments based on notional rather than on received or accrued income.

It is correct, that, the respondent did not have the legal power to vary the contracts concluded by the related parties. However, while the sanctity of contracts is a fundamental and foundational principle of our law, it may be abridged by legislation.

This point was made by INNES CJ in Law Union and Rock Insurance Company Ltd v Carmichael's Executors 1917 AD 593…, when he stated that:

“…, public policy demands, in general, full freedom of contract; the right of men freely to bind themselves in respect of all legitimate subject matters. The general interest of the community may, and does, in certain cases, require the abridgement of this right. But, language enforcing such abridgement should be narrowly regarded and strictly construed. For, it cannot be thought that the legislature would, in the interests of the public, infringe upon so fundamental a principle of public policy to a greater extent than would be required to obviate the mischief aimed at.”

It is also correct, that, our income tax legislation is designed to tax created income as opposed to notional income.

In this regard, BEADLE CJ stated, in Commissioner of Taxes v Feldman & Others 1968 (1) RLR 85 (AD) at 95A that:

“The Act seeks to tax income, and, a taxpayer's income is arrived at after including in his gross income what had been 'received by or accrued to' him during the year of assessment (see s8(1)).”

He continued at 95G thus:

“Whichever way the distribution is looked at, therefore, no 'amount' has been received by or has accrued either to the partnership or to the individual partners as a result of the dissolution. To attempt to fix a notional value on an 'amount' not received or accrued, so as to make it attract tax, is not, I hope, the general purpose of the Act.”

The learned Chief Justice, however, did acknowledge, at p94G of the same judgment, that:

“It is true that Income Tax Acts sometimes do strange things, and that taxing a notional profit is by no means unknown. But, in such cases, the language of the Act clearly indicates that this is the case.”

I agree with counsel for the respondent, that, the closing words of section 98 of the Income Tax Act, in unambiguous language, empower the Commissioner to impute and tax notional income.

However, the section does not provide the mechanism for determining such income but accords a wide discretion on the Commissioner to do so.

In the exercise of his wide discretion, the Commissioner elected to apply the rate per km model using the 2013 rate per kilometre supplied by the appellant in the computation of the notional income in respect of each of the four years of assessment.

It was common cause, that, in the determination of 14 November 2014, the Commissioner recognised that the 2013 rate was not an accurate and correct rate.

The sole witness called by the appellant proffered some figures that he alleged were the gross rates used by the related party in each of the respective years, which were lower than the 2013 rates applied by the respondent.

His mere say so was inadequate to establish the veracity of those figures. They were not subjected to an accuracy test by the respondent as they were provided in the witness's written statement some three (3) weeks before the appeal commenced.

The correct application of these rates to the formula propounded by the respondent, using the rates of exchange provided by the appellant in each year, would not result in the negative variances computed by the appellant in exhibit 4 in all these years but would result in a negative variance of US$100,782=51 for 2009; and positive variances of US$187,174=47 in 2010; US$149,277=68 in 2011; and US$65,653=46 in 2012.

Table 4 demonstrates how these variances arise and Table 5 the tax due.

Table 4: computation of variances using the rates supplied in evidence by the appellant.

Year/item	2009	2010	2011	2012
Distance km	359 478	505 748	456 664	450 074
Acceptable rate	16.55	17.52	19.45	20.04
Expected revenue ZAR	4 759 488.72	8 860 704.96	8 882 114.80	9 019 482.96
Expected revenue average USD rate	8.64	7.22	7.06	7.98
Expected revenue in USD	688 583.44	1 227 244.45	1 258 089.92	1 130 261.02
Transport services income AFS	443 388.98	582 023.44	578 854.59	523 247.16
Expenses declared in Rands & USD at average yearly rates	2 989 241.00 345 976.97	3 372 076.00 467 046.54	3 741 501.00 529 957.65	4 320 056.00 541 360.40
Total AFS & expenses USD	789 365.95	1 049 069.98	1 108 812.24	1 064 607.56
variance	-100 782.51	178 174.47	149 277.68	65 653.46

Table 5: the computation of tax due from the appellant. The resultant tax computations from the above would be as follows:

Year/item	2009	2010	2011	2012
Appellant computations	-41 675.00	-75 497.00	-93 013.00	-20 652.00
Add: Provisions	10 520.00	28 982.00	17 416.00	312.00
Bad debts	-	-	18 783.00	-
Donations	-	-	100.00	-
Apportionment of drivers salaries	90 908.17	158 374.08	170 616.13	190 669.93
Freight rates adjustment (variance)	-100 782.51	178 174.47	149 277.68	65 653.46
Bank deposits anomaly	100.25	0.31	0.00	85.47
Total	-40 929.09	290 033.86	263 179.81	236 068.86
Taxable income	-40 929.09	290 033.86	263 179.81	236 068.86
Tax at 25.75%	nil	74 683.72	67 768.80	60 787.73

It seems to me, that, the appellant undermined its objection and appeal by failing to provide the respondent with information on the gross rate and the total operating costs of the related party as it did on page 50.2 of exhibit 1 in respect of 2013.

There was neither reason nor logic in supplying 2013 figures when the investigation related to the period 2009 to 2012.

I formed the distinct impression, from the appellant's conduct, that, it was reluctant to supply the requisite information, and, to that extent, was unco-operative with the respondent.

In that regard, the appellant deprived itself of the opportunity to explore the eminently reasonable method of computing the acceptable rate that would constitute the imputed gross rate applicable to the appellant.

The seeds of the suggested method were sown in Annexure B to the letter of 13 June 2014…,.

If I had that information, I would have marked down the total costs of the related party by at least its proven mark-up to calculate a more realistic gross rate for the appellant. It is apparent to me, that, the mark-up of the appellant would have been lower than that of the related party. The “acceptable rate” of R18.18 suggested a mark down of 19% from the gross rate of R22.47.

The appellant failed to establish, on a balance of probabilities, that, the same mark down rate pertained to the period under consideration.

The examples set out in Annexure A of the objection letter…, concerning five (5) round trips in respect of each tax year, indicated the gross earning and total expenses and profit earned per trip for the selected equipment and routes. These samples were too limited in scope and depth and were thus unable to provide credible information required to calculate the mark down rate.

The use of the formula Mark-up=(A-(B+C)/B+C) x 100/1 where A represented the gross revenue, B the costs less CD3 expenses and C the CD3 expenses produced the average profit margin for the 5 trips in 2009 of 11%; 2010 of 5%; 2011 of 1.8%; and 2012 of 21%.

The range in 2009 was between -2.3% and 55.8%; in 2010 it was between -3.2% and 19.4%, in 2011 it was between -27% and 35% while in 2012 it was between 3.5% and 32.3%.

Faced with this difficulty, I adopted the gross rates the appellant supplied and applied them as outlined in Table 4 and 5 above.

I will set aside the amended assessments issued on 23 June 2014 and direct the Commissioner to issue further amended assessments that adopt the computations in Table 4 and 5 of this judgment.

HH728-17 : C R S (PVT) LTD vs ZIMBABWE REVENUE AUTHORITY
Ruled By: KUDYA J

The answer to the real question before meThe answer to the question whether the Commissioner is empowered by section 98 of the Income Tax Act to impute notional income and proceed to tax it is answered in the affirmative.The closing words of section 98 of the Income Tax Act direct ...

The answer to the real question before me

The answer to the question whether the Commissioner is empowered by section 98 of the Income Tax Act to impute notional income and proceed to tax it is answered in the affirmative.

The closing words of section 98 of the Income Tax Act direct the Commissioner to “determine the liability for any tax and the amount thereof as if the transaction, operation or scheme had not been entered into or carried out or in such a manner as in the circumstances of the case it considers appropriate for the prevention or diminution of such avoidance, postponement or reduction” once the transaction, operation or scheme has the stipulated effect, and he, firstly, forms the opinion that it was entered into or executed in an abnormal manner or was not entered into or executed at arm's length, and, secondly, the further opinion that it was created and implement for the purpose of avoiding, reducing, or postponing the payment of tax.

I have found, that, the agreement had the stipulated effect and have upheld the Commissioner's opinion in both the aforementioned respects. The concluding words of section 98 of the Income Tax Act provide the Commissioner with a very wide discretion in computing the imputed notional tax.

He would have been within his rights to treat the agreement as a partnership despite the disavowal of the related parties in clause 8 of the 2003 agreement. He would, of course, have required information on which to apportion the partnership shares based amongst other factors on the ratio of the appellant's equipment to that of the related party.

Whether or not SI 163 of 2014 is applicable in casu?

It was common cause that the Finance Act Tax Amnesty Regulations, SI163 of 2014 were promulgated in terms of section 23 of the Finance Act (No.2) of 2014. They targeted tax defaulters and evaders. The period covered by the tax amnesty ran from 1 October 2014 to 31 March 2015 and was further extended to 30 September 2015.

The application was made on the prescribed form and full disclosure was required. All taxpayers who had made self-assessments, paid tax, were under investigation or audit, or were challenging their assessments were not eligible.

The appellant fell into the excluded category of taxpayers.

The eligible taxpayers were exempted from paying additional tax, penalties, and interest once the application was granted.

Counsel for the appellant contended, that, the appellant, as a law abiding citizen, was being discriminated against by being asked to pay additional tax and interest in violation of section 56(1) of the Constitution which required that all persons be treated equally before the law and have equal benefit of the law. He prayed for the extension of the benefits to the appellant.

He submitted, in the alternative, that, in exercising its discretion, this Court exempts the appellant from payment of any additional tax and interest.

Sections 56(1) and (6) of the Constitution stipulate that:

“(1) All persons are equal before the law and have the right to equal protection and benefit of the law.

(6) The State must take reasonable legislative and other measures to promote the achievement of equality and to protect or advance people or classes of people who have been disadvantaged by unfair discrimination, and —

(a) Such measures must be taken to redress circumstances of genuine need;

(b) No such measure is to be regarded as unfair for the purposes of subsection (3).”

Section 56 of the Constitution falls under the cluster of fundamental human rights and freedoms.

In terms of section 45(3) of the Constitution, they apply to both natural and juristic persons and must be construed in terms of section 46 of the Constitution, which, amongst other requirements, prescribes the promotion of the founding values and principles in section 3 of the Constitution that underlie a democratic society based on openness, justice, human dignity, equality and freedom by a court of law.

The right to equality before the law and equal benefit to the law are, however, not absolute rights.

They are limited in extent and application by section 86(2) of the Constitution which states that:

“(2) The fundamental rights and freedoms set out in this Chapter may be limited only in terms of a law of general application and to the extent that the limitation is fair, reasonable, necessary and justifiable in a democratic society based on openness, justice, human dignity, equality, and freedom, taking into account all relevant factors, including —

(a) The nature of the right or freedom concerned;

(b) The purpose of the limitation, in particular, whether it is necessary in the interests of defence, public safety, public order, public morality, public health, regional or town planning or the general public interest;

(c) The nature and extent of the limitation;

(d) The need to ensure that the enjoyment of rights and freedoms by any person does not prejudice the rights and freedoms of others;

(e) The relationship between the limitation and its purpose, in particular, whether it imposes greater restrictions on the right or freedom concerned than are necessary to achieve its purpose; and

(f) Whether there are any less restrictive means of achieving the purpose of the limitation.”

The inarticulate major premise embodied in counsel for the appellant's submission was that the tax amnesty provisions were, to the extent that they discriminated against the appellant, unconstitutional.

He did not disclose how the Finance Act (No.2) of 2014, on which these amnesty provisions are founded failed the test of constitutionality stipulated in section 86(2) of the Constitution.

I await proper and well-reasoned, rather than bald and unsubstantiated legal submissions on the point that would serve justice to both the taxpayer and the Commissioner.

The arguments advanced are inadequate to convince me, on a balance of probabilities, that, the appellant should be accorded the same treatment by the Commissioner or this Court as the truant taxpayers contemplated in the tax amnesty provisions.

The main and alternative submissions are devoid of depth and are accordingly dismissed.

I therefore hold, that, the statutory instrument in question has no application in the present matter.

Penalties

In paragraph 51 of his written submissions, counsel for the appellant conceded, that, the Commissioner was authorised, by section 64(2) as read with paragraph (m) to the Eleventh Schedule of the Income Tax Act to increase the level of penalties imposed during an assessment in his determination of an objection.

In the present matter, the penalties were increased from 90% to 100%.

In terms of section 46(6) of the Income Tax Act, the Commissioner has discretion to remit or waive additional penalty where the taxpayer did not intend to evade the payment of the tax due.

Where the intention to evade, in any one of the three alternatives propounded in ITC 1577, 56 SATC 236 of direct intent, awareness of certainty, and awareness of possibility is evinced, neither the Commissioner, in the first instance, nor this court, as a court of revision, can, on an appeal in the wider sense, remit or waive the additional tax to anything other than 100%: see the remarks of SQUIRES J in ITC No.1334 (1981) 43 SATC 98 (Z)…, and of SMITH J in ITC 1631 (1997) 60 SATC 63 (Z)…,.

Counsel for the appellant urged me to apply the principles that I set out in PL Mines v Zimbabwe Revenue Authority HH466-15.

In imposing the penalty, the Commissioner and the Appeal Court are obliged to consider the triad of the offender, the offence, and the interests of society.

Before dealing with each specific transaction for which penalty was imposed, I do take cognisant of the specific factors pertaining to the appellant.

It co-operated with the respondent in some and all instances. It was a good corporate citizen, which, until the investigation under consideration took place, had complied with its tax obligations. It was an employer which held the interests of its workforce at heart. It served the country by bringing some modicum of foreign currency into the country when the local economic environment was bleak.

The offence of tax avoidance was described by MACDONALD JP in Commissioner of Taxes v F 1976 (1) RLR 106 (A), in rather strong language, as an evil.

Of course, taxpayers are allowed to employ legitimate means to lessen their tax burden and these do not invite public opprobrium. Tax avoidance certainly places the burden of taxation on other taxpayers to the exclusion of the offender.

Courts emphasize both personal and general deterrence in imposing suitable penalties.

As will appear in my assessment of each offending transaction, the appellant, and its tax advisers, deliberately implemented an opaque system of tax avoidance and reduction with the intention of evading the payment of the correct tax due. This course of action obviously raises the moral turpitude of the appellant and results in the imposition of the maximum penalty permitted by law.

The interests of society require that taxpayers abide by the law and pay their fair share of taxes. Those who deliberately break the law must feel the pinch.

I have these factors in mind as I consider each offending transaction and assess the suitable penalty.

Penalties were imposed in respect of the following transactions:

Provision for leave pay and for security

In each of the four financial statements in question, the appellant made provision for accrued leave pay due to its staff, and, in 2010 and 2011 a provision for security.

Each provision was claimed as an expense incurred under the general deduction formula, section 15(2)(a) of the Income Tax Act in the year in which it was made, but, was not reversed in the following tax year.

The appellant conceded the failure to reverse these provisions in each of the four years of assessment.

The sole witness for the appellant averred, that, this was due to a bookkeeping oversight for which it did not evince any intention to mislead the respondent or seek to obtain a tax advantage.

The appellant ended up erroneously claiming excess deductions under this head of US$10,520 in 2009; US$28,982 in 2010; US$17,416 in 2011; and US$312 in 2012, which were added back to income, by consent, during the investigations and included in the amended assessments….,.

The respondent treated the non-reversal as a deliberate attempt to evade the payment of the correct tax and imposed the penalty of 100%. The appellant failed to show how such an error could have taken place consecutively in each year.

It seems to me, that, the respondent was justified in treating these failures as deliberate attempts motivated by the desire to reduce the appellant's tax liability.

The imposition of a penalty of 100% in these circumstances was justified.

The 2010 Bad Debt Claim

This was in respect of rentals in the sum of US$18,783 owed by a tenant for the appellant's property in Mutare for the 2011 calendar year. The claim in the summons and declaration, issued on 22 May 2012, was in respect of arrear rentals in the sum of US$2,000 per month for the period 1 June 2010 to 31 December 2011, eviction, and holding over damages from 1 January 2012 and other consequential relief…,.

However, an e-mail from the appellant, of 10 October 2013, indicated that the tenant paid all the rentals at the rate of US$2,300 per month during 2010 but defaulted in 2011.

The appellant included the unpaid rentals in its 2011 income but reversed it all at the end of that calendar year. The tenant commenced payment of reduced rentals of US$1,500 after the issue of summons.

In BT (Pvt) Ltd v Zimbabwe Revenue Authority HH617-14…, I set out the three requirements that a taxpayer is required to prove, on a balance of probabilities, in respect of a bad debt. An application of these requisite elements show that the amount claimed by the appellant was due and payable.

The financial statements for 2011 were prepared on 14 March 2012, the date on which the debt was declared to be bad.

It is clear to me, that, by that date, the amount was unlikely to have been recovered at the end of the 2011 financial year. The Commissioner must also have been satisfied that it was a bad debt. The amount had been included in the taxable income of the taxpayer in that year of assessment.

In my view, the amount should have been deducted from the appellant's income.

For undisclosed reasons, the appellant conceded that it wrongly deducted the amount and counsel for the appellant correctly found himself bound by that concession that the appellant knowingly and voluntarily made.

Clearly, the imposition of a penalty of any nature, let alone of 100%, was not justified.

In the exercise of my discretion, I will direct that the penalty imposed in respect of the bad debt be discharged in full.

The failure to reverse the donation of US$100 made in the 2011 financial year

This was attributed to a bookkeeping error. It was deducted in the 2011 tax computation as an expense.

Again, like in the issue in respect of leave pay and security provisions, the appellant failed to indicate how such “an error” could occur in the face of the accounting skills that were at its disposal.

The respondent was justified in treating the purported error as evincing a deliberate intention to reduce the appellant's taxable income for which he had no choice but to impose a 100% penalty.

The failure to apportion the wages of the drivers employed by the appellant who drove the related party's vehicles

The appellant paid all the statutory salaries and wages and allowances of some of its drivers who drove the related party's vehicles that did not form party of the leased equipment without any form of reimbursement from the related party.

The appellant always claimed these drivers wages as expenses against income. The appellant admitted that it had been doing this for years. This was only discovered during the investigation.

On the advice of its South African based accountants, the appellant agreed that 50.28% of the total wage bill be disallowed….,. The agreed amounts that were added back to income in respect of each tax year…, were US$90,908=17 for 2009; US$158,374=08 for 2010; US$170,616=13 for 2011; and US$190,669=93 for 2012.

It was apparent that the appellant did not incur the expense in relation to these drivers.

In terms of the agreements, the appellant leased only its equipment, and not the drivers, to the related party. All the 110 drivers were not rendering any service to or on behalf of the appellant but were doing so to the related party.

In my view, there was no legal justification for the appellant to deduct the wage bill of all the drivers who were driving both the appellant's rented equipment and the related party's equipment.

The appellant's case, throughout these proceedings, has always been that it was not in the business of cross-border transportation. It ill behoves the appellant to now claim that all the drivers involved in the cross border haulage business of the related party were actually engaged for the purpose of its own trade or in the production of its income.

The pleadings and evidence showed that its income, in respect of this equipment, was derived from the rental agreements. The salaries of these drivers were the responsibility of the related party.

I fail to discern how any self-respecting internal and external accountants of the appellant would allow such a practice to prevail for as long as it did without batting an eyelid. The only reason it prevailed was because the appellant and its erstwhile accountants and tax advisors deliberately intended to evade the payment of the appropriate tax due to the Zimbabwean fiscus.

The penalty imposed, of 100%, was most appropriate.

The assessment of additional income from the hire of equipment to the related party

The appellant conceded, that, some level of additional tax, less than the 100% penalty imposed, was appropriate.

The appellant was uncooperative.

I have already found, that, the transactions infringed the provisions of section 98 of the Income Tax Act. The appellant deliberately intended to evade the payment of tax due to the respondent.

A penalty of 100% was and remains most appropriate.

The unreconciled bank deposits

During the investigation, the appellant failed to reconcile bank deposits of US$100=25 for 2009; US$0=31 for 2010; and US$87=47 for 2012.

These amounts were omitted from the taxable income of the appellant and were added back, by consent, in the amended assessments.

The appellant failed to account for the anomaly.

The issue is not how insignificant they are, but the principle involved. This is because the logical conclusion such a contention would be that payment of a 100% penalty on these insignificant amounts would not place any undue burden on the appellant.

The failure to explain the discrepancy does demonstrate a pattern of tax avoidance or reduction on the part of the appellant that was motivated by the intention to evade the payment of the correct amount of tax due.

The imposition of a penalty of 100% on these insignificant amounts was and remains most appropriate.

Costs

In terms of section 65(12) of the Income Tax Act, an order for costs is only made against the Commissioner if the claim of the Commissioner is held to be unreasonable and against the appellant if the grounds of appeal are found to be frivolous.

I do not find the positions taken by the Commissioner to have been unreasonable neither do I find the grounds of appeal to have been frivolous. Accordingly, each party will bear its own costs.

Disposition

Accordingly, it is ordered that:

1. The amended assessments number 1/3433 for the tax year ended 31 December 2009; 1/3434 for the tax year ended 31 December 2010; 1/3435 for the tax year ended 31 December 2011; and 1/3436 for the tax year ended 31 December 2012, issued on 23 June 2014, be and are hereby set aside.

2. The Commissioner is directed to issue further amended assessments against the appellant in respect of each year of assessment in compliance with this judgment, and, in so doing, shall:

(i) Apply the gross rates per kilometre set out in Table 4 in computing the variance between the expected income and received income.

(ii) Apply the average exchange rates between the United States dollar and South African rand in each year of assessment of as set out in Table 4 of this judgment of R8.64 for 2009; R7.22 for 2010; R7.06 for 2011; and R7.98 for 2012 to 1U$.

3. The appellant is to pay additional tax of 100% in respect of provision for leave pay and for security, failure to reverse the donation, the failure to apportion the wages of the drivers employed by the appellant who drove the related party's vehicles, hire of equipment to the related party, and unreconciled bank deposits.

4. The additional penalty imposed in respect of bad debts is waived in full.

5. Each party shall bear its own costs.

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Zimbabwe

Air, Land, Sea Carriage and Commercial Storage

HH162-10 : TRANSMEDIA CORPORATION (PVT) LTD vs BEACH CONSULTANCY COMPANY t /a AVIATION GROUND SERVICES
Ruled By: BHUNU J

HB61-10 : LUXION TACHIONA and NONTOKOZO DUBE vs NATIONAL RAILWAYS OF ZIMBABWE
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HH728-17 : C R S (PVT) LTD vs ZIMBABWE REVENUE AUTHORITY
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HH728-17 : C R S (PVT) LTD vs ZIMBABWE REVENUE AUTHORITY
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Law Portal Zimbabwe

Air, Land, Sea Carriage and Commercial Storage

HH162-10 : TRANSMEDIA CORPORATION (PVT) LTD vs BEACH CONSULTANCY COMPANY t /a AVIATION GROUND SERVICES Ruled By: BHUNU J

HB61-10 : LUXION TACHIONA and NONTOKOZO DUBE vs NATIONAL RAILWAYS OF ZIMBABWE Ruled By: NDOU J

Appealed HH78-13 : PATRICIA MANDALA vs GLENS REMOVALS & STORAGE ZIMBABWE (PRIVATE) LIMITED Ruled By: BERE J

HH28-03 : CHRIS ROBERTS vs AIR ZIMBABWE CORPORATION Ruled By: HUNGWE J

HH381-17 : MAZVITA BANGA (Represented by her guardian CHARLES BANGA) and TANAKA BANGA (Represented by her guardian CHARLES BANGA) and CHARLES BANGA and TSUNGIRAI BANGA vs AIR ZIMBABWE (PVT) LTD Ruled By: MATANDA-MOYO J

HH653-15 : LEWENOD ENTERPRISES (PRIVATE) LIMITED vs FREIGHT AFRICA LOGISTICS Ruled By: CHIGUMBA J

HH520-18 : AIR NAMIBIA (PROPRIETARY) LTD vs CHENJERAI MAWUMBA and JULIANA MAGOMBEDZE and FADZAI MAWUMBA and RUTENDO MUWUMBA and TADIWANASHE MAWUMBA (minors represented by father & natural guardian) Ruled By: CHITAPI J

View Appeal HH100-17 : UPSET INVESTMENTS (PRIVATE) LIMITED vs CHITUNGWIZA MUNICIPALITY Ruled By: MUREMBA J

HB32-15 : ANDREW NDLOVU and CHIHWA TOURS vs THEMBINKOSI SIBINDI Ruled By: MUTEMA J and MOYO J

HH95-16 : MANICA ZIMBABWE LTD vs GRINDSBERG INVESTMENTS (PVT) LTD and OTHERS Ruled By: DUBE J

View Appeal HH385-13 : WEBSTER RUSHESHA (as legal guardian of Panashe Rushesha and Tivonge Rushesha) and RASAR INVESTMENTS (PVT) LTD vs ALEXIOUS DERA and ZIMCOR TRUSTEES LTD and FRANK BUYANGA and BOKA INVESTMENTS (PVT) LTD and MATTHEW BOKA and REGISTRAR OF DEEDS Ruled By: ZHOU J

HH728-17 : C R S (PVT) LTD vs ZIMBABWE REVENUE AUTHORITY Ruled By: KUDYA J

HH728-17 : C R S (PVT) LTD vs ZIMBABWE REVENUE AUTHORITY Ruled By: KUDYA J

HH728-17 : C R S (PVT) LTD vs ZIMBABWE REVENUE AUTHORITY Ruled By: KUDYA J

HH728-17 : C R S (PVT) LTD vs ZIMBABWE REVENUE AUTHORITY Ruled By: KUDYA J

HH728-17 : C R S (PVT) LTD vs ZIMBABWE REVENUE AUTHORITY Ruled By: KUDYA J

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Law Portal
Zimbabwe

HH162-10 : TRANSMEDIA CORPORATION (PVT) LTD vs BEACH CONSULTANCY COMPANY t /a AVIATION GROUND SERVICES
Ruled By: BHUNU J

HB61-10 : LUXION TACHIONA and NONTOKOZO DUBE vs NATIONAL RAILWAYS OF ZIMBABWE
Ruled By: NDOU J

Appealed
HH78-13 : PATRICIA MANDALA vs GLENS REMOVALS & STORAGE ZIMBABWE (PRIVATE) LIMITED
Ruled By: BERE J

HH28-03 : CHRIS ROBERTS vs AIR ZIMBABWE CORPORATION
Ruled By: HUNGWE J

HH381-17 : MAZVITA BANGA (Represented by her guardian CHARLES BANGA) and TANAKA BANGA (Represented by her guardian CHARLES BANGA) and CHARLES BANGA and TSUNGIRAI BANGA vs AIR ZIMBABWE (PVT) LTD
Ruled By: MATANDA-MOYO J

HH653-15 : LEWENOD ENTERPRISES (PRIVATE) LIMITED vs FREIGHT AFRICA LOGISTICS
Ruled By: CHIGUMBA J

HH520-18 : AIR NAMIBIA (PROPRIETARY) LTD vs CHENJERAI MAWUMBA and JULIANA MAGOMBEDZE and FADZAI MAWUMBA and RUTENDO MUWUMBA and TADIWANASHE MAWUMBA (minors represented by father & natural guardian)
Ruled By: CHITAPI J

View Appeal
HH100-17 : UPSET INVESTMENTS (PRIVATE) LIMITED vs CHITUNGWIZA MUNICIPALITY
Ruled By: MUREMBA J

HB32-15 : ANDREW NDLOVU and CHIHWA TOURS vs THEMBINKOSI SIBINDI
Ruled By: MUTEMA J and MOYO J

HH95-16 : MANICA ZIMBABWE LTD vs GRINDSBERG INVESTMENTS (PVT) LTD and OTHERS
Ruled By: DUBE J

View Appeal
HH385-13 : WEBSTER RUSHESHA (as legal guardian of Panashe Rushesha and Tivonge Rushesha) and RASAR INVESTMENTS (PVT) LTD vs ALEXIOUS DERA and ZIMCOR TRUSTEES LTD and FRANK BUYANGA and BOKA INVESTMENTS (PVT) LTD and MATTHEW BOKA and REGISTRAR OF DEEDS
Ruled By: ZHOU J

HH728-17 : C R S (PVT) LTD vs ZIMBABWE REVENUE AUTHORITY
Ruled By: KUDYA J

HH728-17 : C R S (PVT) LTD vs ZIMBABWE REVENUE AUTHORITY
Ruled By: KUDYA J

HH728-17 : C R S (PVT) LTD vs ZIMBABWE REVENUE AUTHORITY
Ruled By: KUDYA J

HH728-17 : C R S (PVT) LTD vs ZIMBABWE REVENUE AUTHORITY
Ruled By: KUDYA J

HH728-17 : C R S (PVT) LTD vs ZIMBABWE REVENUE AUTHORITY
Ruled By: KUDYA J