Jurisdiction re: Judicial Deference iro Remittals or Remittal Order and Recognition of Competent Authoritative Bodies

View Appeal
SC13-11 : MATTHEW MBUNDIRE vs TYRONE SIM BUTTRESS
Ruled By: ZIYAMBI JA, GARWE JA and CHEDA AJA

At the conclusion of the hearing of this matter in the High Court, the court, inter alia, granted absolution from the instance in respect of the appellant's claim for general damages, future expenses, and replacement value for his motor vehicle.

It is only against that portion of the judgment that the appellant has appealed to this Court.

The facts of this case are as follows:

On 23 July 2006, the appellant was involved in a serious road accident with the respondent at the intersection of Breach Road and Kingsmead Road in Borrowdale, Harare. As a result of the accident, the appellant sustained serious injuries. He was conveyed to Parirenyatwa Hospital whilst in a coma. Thereafter, he was detained in the High Dependency Unit for seventeen (17) days. He spent seven-and-a-half months at St. Giles Rehabilitation Centre. He spent a total of about one-and-half years undergoing hospitalization.

It was accepted, during the trial, that, prior to the accident, the appellant had been active in sport and that he had been in charge of sport and discipline at St Johns College, Borrowdale. In particular, he was in charge of rugby, swimming, hockey, and athletics at the school.

The court a quo found, on the evidence, that the accident was the result of gross negligence on the part of the respondent.

In considering the appellant's claim for general damages, the court a quo found, as a fact, that the appellant will require surgical operations, regular physiotherapy, and medication for the rest of his life. The court also found that he experiences weaknesses of the forearm and arm on the left side and that he will suffer from pain for a very long time.

A report prepared by Professor Kalangu stated that the lower plexus should show good improvement but did not indicate to what extent he was likely to improve. The court was of the view, that, in the absence of evidence from the two doctors who attended to the appellant, the extent of his disability was debatable.

On that basis, the court a quo granted absolution from the instance.

On the question of future medical attention, the court accepted that the appellant will require transport to attend physiotherapy and rehabilitation and that he will require future medical attention. However, the court reached the conclusion that the plaintiff had failed to show how many sessions he would be required to undertake to enable the court to assess the future expenses that he was likely to incur.

On that basis, the court also granted absolution from the instance.

On the question of the replacement value of the motor vehicle, the court a quo came to the conclusion that since delictual damages are calculated as at the time of the delict, the appellant had failed to explain, satisfactorily, the delay between the time of issuance of the summons and the time when quotations were obtained.

In particular, the court was of the view that consideration of factors such as inflation in the calculation of delictual damages would amount to altering the quantum of the debt and would be in conflict with the principle of currency nominalism.

As a result, the court a quo also granted absolution from the instance.

In his grounds of appeal, the appellant has attacked the decision of the court a quo on three bases. These are:

1. That the court a quo erred in failing to consider the evidence placed before it and thereafter to exercise its discretion to make an award for general damages in favour of the appellant.

2. The court a quo erred in failing to consider the evidence placed before it and thereafter in exercising its discretion to make an award for future medical expenses in favour of the appellant.

3. The court a quo erred in applying the principle of currency nominalism and in failing to exercise its discretion to make an award in favour of the appellant for the replacement value of his motor vehicle.

The appellant seeks an order that paragraph 2 of the order of the court a quo be set aside and that the respondent be ordered to pay;

(a) The sum of US$50,000, being the equivalent of Z$1 billion as at the date of judgment, as general damages together with interest thereon at the rate prevailing in the United States of America from the date of judgment to date of payment in full;

(b) The sum of US$5,000, being future medical expenses together with interest thereon at the rate prevailing in the United States from the date of judgment to the date of payment; and

(c) The sum of US$8,000 being the replacement value of the appellant's motor vehicle.

It is appropriate, at this stage, to consider the approach that has been followed by the Courts in the assessment of damages in general, and special damages in particular.

In Hersman Shapiro & Co 1926 TPD 367, 379-80 STRATFORD J observed:

“…, monetary damage having been suffered, it is necessary for the Court to assess the amount and make the best use it can of the evidence before it.

There are cases where the assessment by the Court is very little more than an estimate; but, even so, if it is certain that pecuniary damage has been suffered, the Court is bound to award damages. It is not so bound in the case where evidence is available to the plaintiff which he has not produced; in those circumstances, the Court is justified in giving, and does give, absolution from the instance.

But, where the best evidence available has been produced, though it is not entirely of a conclusive character and does not permit of a mathematical calculation of the damages suffered, still, if it is the best evidence available, the Court must use it and arrive at a conclusion based upon it…,.”

In Ebrahim v Pittman N.O. 1995 (1) ZLR 176H, 187C-D BARTLETT J quoted with approval the remarks of BERMAN J in Aarons Whale Rock Trust v Murray & Roberts Ltd & Anor 1992 (1) SA 652 (C), 655H-656F that:

“'Where damages can be assessed with exact mathematical precision, a plaintiff is expected to adduce sufficient evidence to meet this requirement. Where, as is the case here, this cannot be done, the plaintiff must lead such evidence as is available to it (but of adequate sufficiency) so as to enable the court to quantify his damage to make an appropriate award in his favour. The court must not be faced with an exercise in guesswork; what is required of a plaintiff is that he should put before the court enough evidence from which it can, albeit with difficulty, compensate him by an award of money as a fair approximation of his mathematically unquantifiable loss.…,.'

There must of course be sufficient evidence before the court for it to be in a position to make a proper assessment of damages; for '…, it is not competent for a court to embark upon conjecture in assessing damages where there is no factual basis in evidence, or an inadequate factual basis, for an assessment, and, it is not competent to award an arbitrary approximation of damages to a plaintiff who has failed to produce available evidence upon which a proper assessment of the loss could have been made': per ROSE INNES AJ in Monumental Art Co v Kenston Pharmacy (Pty) Ltd 1976 (2) SA 111 (C) at 118E. See also Mkwananzi v Van der Merwe & Anor 1970 (1) SA 609 (A) at 630.

Thus, where evidence is available to a plaintiff to place before the court to assist it in quantifying damages, and this is not produced, so that it is impossible for the court to do so, or there is no, or quite insufficient evidence which can be produced by an unfortunate plaintiff, he must fail and the defendant must be absolved from the instance…,.”

In, The Quantum of Damages in Bodily and Fatal Injury Cases, 3ed by CORBETT, BUCHANAN & GAUNTLETT, the learned authors state as follows…,:

“In the case of damages which are capable of exact mathematical computation, such as, for example, medical and hospital expenses, proper evidence establishing the loss and substantiating the precise amount of the claim must be tendered.

Where, on the other hand, mathematical proof of the damages suffered is in the nature of things impossible, then, provided that there is evidence that pecuniary damage in this regard has been suffered, the court must estimate the amount of the damages as best as it can on the evidence available and the plaintiff cannot be non-suited because the damages cannot be exactly computed.

However, the application of this principle is dependent upon the plaintiff having adduced the best evidence available to him. Where he has not done so, and the difficulties in assessing the quantum of damages are due to the manner in which he has conducted his case, then the court is justified in ordering, and does order, absolution from the instance.”

The remarks made in the authorities cited above no doubt correctly reflect the law on the approach to damages in bodily and fatal injury cases both in this country and South Africa.

The first ground of appeal that falls for determination by this Court is whether the court a quo erred in failing to consider the available evidence, and, thereafter, making an award for general damages in favour of the appellant.

The amount claimed as general damages before the court a quo was the sum of Z$1 billion as at the date of judgment. The Z$1 billion claimed represented damages for pain and suffering, disability, bodily disfigurement, shock, discomfort, loss of amenities of life, and shortened life expectancy.

The court a quo delivered its judgment on 16 April 2009, and, in respect of this particular claim, granted absolution from the instance. The basis for that decision was that the remark by Dr Kalangu, in his report, that, “lower plexus should show good improvement”, was imprecise. The court a quo was of the view that it was not clear to what extent the improvement would affect the degree of disability. Further, although the report alluded to the need for a repeat study after six months, no such examination appears to have been undertaken. In view of the medical opinion that the appellant's condition could improve with rehabilitation and treatment, the court concluded that the extent of the disability was debatable, and that, therefore, the appellant had not placed sufficient evidence before the court to enable it to make a proper assessment.

It is correct, as the court found, that no further tests were done to ascertain the degree to which the appellant was likely to recover. The fact that the appellant had sustained very serious injuries from which he could never fully recover was common cause. The court accepted, that, following the accident, he had had to be hospitalized for about one-and-a-half years. The court accepted the report by Dr Kalangu, that, the appellant had sustained “complete paralysis of the left and complete paralysis of both lower limbs” (sic). The radiological investigations had revealed a fracture of the left clavicle, fracture of the spine in C5 and C6 and dislocation of the vertebra in C5-6 associated with spinal cord compression. Dr Kalangu estimated the percentage of disability at 60%. He further found that the appellant will have pain for a long time and he will require physiotherapy.

The court also accepted the report by Professor Meikle, of the Clinical Neurophysiology Laboratory, Harare Hospital, that the appellant had weakness of all the muscle groups in the left arm with no movement in the shoulder and elbow muscles. The Professor found the upper plexus to have been seriously injured with no sign of recovery “at present” but the lower plexus was expected to show good improvement.

Although the Professor recommended repeat studies in six months, as already noted, nothing further appears to have happened after the preparation of that report.

The court a quo found that the accident had had a serious effect on the appellant, who, before the accident, had been in charge of sport at St Johns College, Borrowdale, and had generally been active in short. His condition, after the accident, had also affected his relationship with his daughter, who, it appeared, simply could not understand why her father could no longer engage in the activities he used to.

The court a quo further accepted, as fact, that the appellant will, for the rest of his life, require medical attention, including operations, regular physiotherapy, and medication.

It certainly would have helped had the appellant undergone further examination thereafter so that the exact degree of his injuries could have been ascertained. This notwithstanding, the evidence placed before the court, in my view, was sufficient to enable the court to make an award.

As WATERMEYER JA aptly put it in Sandler v Wholesale & Coal Supplies Ltd 1941 AD 194, 199:

“…, it must be recognized that though the law attempts to repair the wrong done to a sufferer who has received personal injuries in an accident by compensating him in money, yet, there are no scales by which pain and suffering can be measured, and there is no relationship between pain and money which makes it possible to express the one in terms of the other with any approach to certainty. The amount to be awarded as compensation can only be determined by the broadest general considerations and the figure arrived at must necessarily be uncertain, depending upon the judge's view of what is fair in all the circumstances of the case.”

The extent of the injuries sustained was substantiated.

The doctors suggested that there was some possibility of improvement but this could only be determined if a repeat study was carried out at a later stage. During the trial, the appellant said nothing about such a repeat study. The court itself did not ask in order to clarify the situation.

The failure to lead evidence on this should not have resulted in the appellant being non-suited.

As stated in The Quantum of Damages in Bodily and Fatal Injury Cases, 3ed by CORBETT, BUCHANAN & GAUNTLETT…, in a case such as the present, a Court does not grant absolution but may tend towards conservatism in assessing the damages. The learned authors state:

“The general attitude of the court has been that if there if evidence upon which an estimate, not unfair to the defendant, can be made, it should not refuse to make an award merely on account of the deficiencies in the case presented upon the plaintiff's behalf. Nevertheless, the failure to adduce such evidence would normally operate to the disadvantage of the plaintiff, in that, in its absence, the court would normally tend towards conservatism in computing the damages.”

In my view, this is the approach that the court a quo should have adopted.

I would agree with the appellant that the finding of absolution in these circumstances resulted in an injustice.

It is not uncommon, in claims for general damages, for a plaintiff to claim, and a Court to award, individual damages for pain and suffering, disfigurement, loss of amenities of life, and shortened life expectancy: see The Quantum of Damages in Bodily and Fatal Injury Cases, 3ed by CORBETT, BUCHANAN & GAUNTLETT…,.

The finding of absolution must therefore be set aside.

The amount claimed, as at the date of commencement of the trial in October 2008, was the sum of Z$1 billion.

Judgment was given six months later, in April 2009.

At the time, the country was gripped by a hyperinflation environment which quickly eroded the value of money. In February 2009, however, the multiple currency system was introduced. Whilst the Zimbabwean dollar remained legal tender, it is a fact that transactions in the local currency ceased effectively rendering the Zimbabwean dollar valueless.

At the time that the court was asked to make its determination, the appellant was seeking the sum of Z$1 billion. It is that claim that should have been considered by the court a quo.

In terms of section 6 of the Presidential Powers (Temporary Measures) (Currency Revaluation and Issue of New Currency) Regulations S.I.6 of 2009 financial institutions were instructed to accept, between 2 February 2009 and 30 June 2009, Old Zimbabwean currency at the rate of one trillion dollars for one dollar of the new currency system.

In terms of section 8 of the Presidential Powers (Temporary Measures) (Currency Revaluation and Issue of New Currency) Regulations S.I.6 of 2009, debts incurred before 2 February 2009 were deemed to have been incurred, entered, created, or transferred in terms of the old currency system and were to be settled, discharged, or liquidated in terms of the old currency system provided, however, that, on or after 1 July 2009 every debt was to be settled, discharged, or liquidated in terms of the new currency system only.

In the definition section, “debt” includes anything which may be sued for or claimed by reason of any obligation arising from statute, contract, delict, or otherwise.

By operation of the law, therefore, the claim by the appellant, for general damages, in the sum of Z$1 billion stood to be dealt with in terms of the Presidential Powers (Temporary Measures) (Currency Revaluation and Issue of New Currency) Regulations.

The one billion dollars claimed under the old currency equated to a fraction of a cent under the new currency system.

Considering the extent of the injuries sustained by the appellant, the claim for damages in the sum of Z$1 billion may not have been an unreasonable sum at the time of commencement of the trial proceedings. However, the law, through the Presidential Powers (Temporary Measures) (Currency Revaluation and Issue of New Currency) Regulations (Statutory Instrument 6/09), has converted what would otherwise have been a substantial claim to a most trivial one.

The result is obviously a most unfair one and the appellant, and the general public, would be excused for thinking that there is something seriously wrong with the law or at least the way it works.

The legislature should have been alive to the obvious injustices that were to follow especially because, on 1 February 2009, the Government introduced the multiple currency system under which it became possible to enter into transactions denominated in other currencies: see section 17 of the Finance (No.2) Act 2/09.

The Finance (No.2) Act 2 of 2009 regularized the introduction of other foreign currencies as legal tender with effect from 1 February 2009.

In his Notice of Appeal, the appellant has requested that his previous claim of Z$1 billion be substituted with the figure of US$50,000.

The appellant, in his heads of argument, has argued that the amendment is justified, regard being had to the current economic conditions of the country where an award in Zimbabwean dollars would render such compensation meaningless.

Alternatively, the appellant has argued that the Court, in the exercise of its discretion, can make an award based on the record using the current multiple currency system.

No authority for that proposition has been cited.

Whether or not such a proposition would violate the principle of currency nominalism has not been explored or commented upon. Whether or not the approach in Makwindi Oil Procurement (Pvt) Ltd v National Oil Company of Zimbabwe 1989 (3) SA 191 (SC) can be extended to cover a situation such as the present has also not been explored.

An action for damages for bodily injury is derived not from Roman Law but from Teutonic Law, but, like the Aquilian Action, it seeks to place the plaintiff as far as possible in the position he would have been had the wrongful act causing him injury not been committed.

Such a result cannot be achieved by making an award of a fraction of the Zimbabwean cent in favour of the appellant.

In all the circumstances, I am satisfied that there is need for a full investigation into the question of the damages that ought to be awarded in this case.

This Court has not had the benefit of argument on this very important issue.

It seems to me that the most appropriate approach would be to remit the matter to the court a quo for consideration of the whole question of damages.

In Halwick Investments t/a Whelson Transport v Garai Stephen Nyamwanza SC48-09, this court clarified the circumstances under which a matter can be remitted to a trial court....,.

1....,.

2. The claim for general damages is remitted to the court a quo for determination.

SC57-05 : FIRST BANKING CORPORATION LTD vs BALTHAZAR MARIMO
Ruled By: SANDURA JA, ZIYAMBI JA and GWAUNZA JA

This is an appeal against a judgment of the Labour Court in terms of which that court quantified the amount of damages payable by the appellant (“the Bank”) to the respondent (“Marimo”), in lieu of reinstatement.

The relevant factual background may be tabulated as follows:

1. On 1 May 1997, Marimo joined the Bank as the manager of the Retail Banking Division. He had previously worked for Barclays Bank for fifteen years and for the Commercial Bank of Zimbabwe for two years.

2. On 20 July 2001, the Bank, acting in terms of section 3(1)(a) of the Labour Relations (General Conditions of Employment) (Termination of Employment) Regulations, 1985 (published in Statutory Instrument 371 of 1985), suspended Marimo without pay and other benefits because it believed that he had committed an act of misconduct. On the same day, the Bank applied to a Labour Relations Officer for the authority to terminate Marimo's contract of employment.

3. On 30 January 2002, the Labour Relations Officer made the following determination:

“The officer determines that Mr Marimo must be reinstated without any loss of pay and benefits, and must be paid thirty-six months' wages as (an) alternative to reinstate(ment) on top of the back-pay in terms of case no. SC19-01.”

4. On 10 April 2002, Marimo submitted to the Labour Relations Officer a document in which he had quantified his back pay and benefits as being $4,048,933=29. In addition, he had quantified his damages in lieu of reinstatement as being $20,438,843=46 which sum represented his salary and benefits for thirty-six months. In the circumstances, the document indicated that the total sum being claimed by Marimo, from the Bank, was $24,487,776=75.

5. On 29 April 2002, after Marimo had registered the Labour Relations Officer's determination with the Provincial Magistrate's Court, the clerk of that court wrote to the Bank as follows:

“You are being advised that the above determination order has been registered with us in terms of section 96(2) of (the) Labour Relations Act, Chapter 28:01.

Would you, therefore, arrange for the payment of the said sum of $24,487,776=75 within ten days of the date of this notice, failing which a warrant of execution may be issued against your property for the recovery of same.”

6. On 23 May 2002, when the sum claimed from the Bank by Marimo had not been paid within the time stipulated by the clerk of the Provincial Magistrate's Court, a warrant of execution was issued on behalf of Marimo, and two motor vehicles belonging to the Bank were attached and removed from the Bank's premises by the Messenger of Court.

7. On 12 July 2002, the Bank filed a notice of appeal in the Labour Relations Tribunal (“the Tribunal”), now the Labour Court, seeking an order setting aside the determination made by the Labour Relations Officer on 30 January 2002. No cross-appeal was filed by Marimo challenging the determination made by the Labour Relations Officer.

On the same day, i.e. 12 July 2002, the Bank filed an Urgent Chamber application in the Tribunal seeking an order staying the execution of the Labour Relations Officer's determination and releasing the Bank's motor vehicles pending the determination of the appeal. An order to that effect was issued by the Tribunal on 15 July 2002.

8. On 4 December 2002, the Tribunal dismissed the Bank's appeal with costs. The Tribunal's order reads as follows:

“In the result, it is ordered:

1. That the appeal against the Labour Relations Officer's determination be and is hereby dismissed
with costs.

2. That the appellant (the Bank) is hereby ordered to reinstate the respondent (Marimo) with no loss of salary and benefits with effect from the date of suspension.

3. That, in the event that reinstatement is no longer an option, the appellant be and is hereby ordered to pay the respondent damages in lieu of reinstatement, the amount of which the parties may agree upon, failure of (failing?) which either party may approach the Tribunal for quantification.”

In issuing this order, the Tribunal overlooked the fact that the basis on which the damages in lieu of reinstatement were to be calculated had already been determined by the Labour Relations Officer, and that, as the Bank's appeal had been dismissed, the determination by the Labour Relations Officer remained intact.

9. On 21 October 2003, Marimo, relying upon the Tribunal's order issued on 4 December 2002, approached the Labour Court for a fresh quantification of his damages. On that day, he filed written submissions claiming much more than he had claimed before the Labour Relations Officer as damages in lieu of reinstatement. He claimed many more benefits than he had claimed in the document that he had submitted to the Labour Relations Officer on 10 April 2002. In addition, he claimed that the Bank was obliged to pay him his salary and benefits until he reached the retirement age of sixty-five years. He was then fifty years old.

10. On 15 June 2004, the parties appeared before the Labour Court and the Bank filed its written submissions. In those submissions, the Bank indicated that it was prepared to pay Marimo back-pay and benefits in the sum of $4,048,933=29, as quantified by Marimo in the document submitted by him to the Labour Relations Officer on 10 April 2002. In addition, the Bank indicated that it was prepared to pay six months salary and benefits amounting to $3,406,473=90 as damages in lieu of reinstatement. After hearing the parties, the President of the Labour Court reserved her judgment.

11. On 23 August 2004, the judgment was handed down. In the result, Marimo was granted almost everything he had claimed. That included back pay in the sum of $38,234,499=. Aggrieved by that result, the Bank appealed to this Court alleging serious misdirections on the part of the President of the Labour Court.

In its notice of appeal, the Bank prayed for an order setting aside the Labour Court's order, and remitting the matter to the Labour Court for a fresh quantification of the damages payable to Marimo by a different President of that court.

However, bearing in mind the fact that the matter has dragged on for about four years, I do not think that remitting it to the Labour Court would be the best thing to do in the circumstances. In any event, I believe that the matter may be put to rest at this stage on the basis of the evidence on the record.

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

This matter came before me by way of an urgent chamber application.

At the initial set down date, the legal practitioners indicated that they wished to file written submissions and the matter was accordingly postponed for that purpose.

In view of the legal issues that were apparent from the affidavits, and that had not been canvassed, I required the legal practitioners to file supplementary heads of argument, which counsel did, and, I am indebted to counsel for the same.

I had also requested a copy of a translation of a South African judgment referred to by the applicant's counsel, but, unhappily, that was not given to me expeditiously, with the result that this judgment was then delayed.

The facts relevant to this dispute are as follows:

The dispute centers around Dana Farm. This farm is now owned by the State after it was gazetted for resettlement under the land reform program.

The first and second respondents are referred to on the papers as former owners of the farm, although the exact nature of that ownership has not been stated nor is it relevant for present purposes.

What is relevant is that they were in occupation at the time the farm was acquired.

The third respondent is a beneficiary of the land reform program but he occupies a neighbouring farm. He is, however, a majority shareholder in a company in which the first and second respondents also own shares and which is undertaking certain farming operations on Dana A Farm.

According to the papers, the first and second respondents occupy subdivisions 2 and 3 of the farm.

The applicant was issued with an offer letter for subdivision 1 which he occupies.

The applicant seeks an interdict, both in interim and final terms, against the respondents from use and occupation of subdivision 1 of Dana Farm. In addition, he seeks their eviction from the same.

After he and counsel for the respondents had made submissions on the application, counsel for the applicant moved for an amendment to the draft order.

Counsel for the respondents did not object to its amendment.

The new draft order merely sought an interim interdict against the three respondents with the eviction being reserved for the final relief.

I find it difficult to comprehend the logic of seeking an amendment of that nature, at that stage, as counsel for both sides had argued the matter fully on the merits as related to the interdict and the eviction.

In my view, no prejudice will occur to any of the litigants if I dispose of the matter on the merits as if it were an opposed application rather than for relief in interim terms.

Although the applicant sought to file an amendment to the draft order, the application to amend the same was only introduced after both parties had addressed the court in argument on the basis of the original draft order. It seems to me, therefore, that the dispute between the parties has been ventilated in full and it does not assist either of the parties for this court to ignore that fact.

I also agree with the submission in the respondents heads of argument that the nature of relief sought is in final terms.

Even if I considered the matter on the basis of the amended draft order, it would not change much as the relief being sought is not materially different in the two draft orders.

I proceed now to consider the other point in limine raised by the respondents.

The respondents had contended, that, the failure to join the Provincial Lands Inspectorate was fatal to the applicant's case.

I disagree.

The farm was acquired, and now vests in the State, which is the owner of the land. I have to consider whether there is any effect to the application consequent to the non-citation of the responsible Minister.

It becomes necessary, therefore, that I consider the nature of the relief being sought by the applicant.

The sum total of the relief sought by the applicant is an interdict against the respondents from utilizing the permanent structures and improvements on the subdivision that he has been offered by Government.

It is common cause, that, although the entire farm was gazetted, and has since been acquired, the former owners, in the guise of the second and third respondents, are still in occupation. It also seems that the third respondent is the majority shareholder in a company that is running farming operations on the farm.

Although the third respondent made this averment, there was challenge from him that the wrong person had been brought to court; he has deposed to an affidavit opposing the application on the merits and did not persist with the challenge when the matter was called.

All the respondents have been in occupation since the farm was acquired, and, my view, from an assessment of the facts, is that the respondents have been in possession of the homestead, the barns, and the borehole same for the entire period that the applicant has been in occupation of the subdivision.

The simple fact is that when he moved in they were in occupation and have not been evicted from the same.

In terms of section 3(1) of the Gazetted Lands (Consequential Provisions) Act [Chapter 20:28] no person may hold, use, or occupy gazetted land without lawful authority.

In the Gazetted Lands (Consequential Provisions) Act, lawful authority is defined as an offer letter, a permit, or a land settlement lease.

The applicant is in possession of an offer letter, and, therefore, he has lawful authority to occupy the part of the farm allocated to him.

The respondents have contended that the offer letter is irregular.

The lawfulness of the offer letter is not before me and I cannot comment on its validity. That is for the authorities to resolve.

What is at issue, however, is whether or not the applicant has the locus standi or right to claim the relief that he is claiming against the respondents.

Appealed
SC21-14 : FLEXIMAIL (PRIVATE) LIMITED vs GIFT BOB SAMANYAU AND THIRTY-EIGHT OTHERS
Ruled By: CHIDYAUSIKU CJ, MALABA DCJ, ZIYAMBI JA, GARWE JA and PATEL JA

At the conclusion of submissions by counsel, the parties in this case agreed that this matter should have been determined by the Labour Court and not the High Court. It was also common cause that a determination by the Labour Court was necessary before the Supreme Court could be seized with this matter. Consequently, it was agreed ...

SC01-15 : FIRSTEL CELLULAR (PRIVATE) LIMITED vs NETONE CELLULAR (PRIVATE) LIMITED
Ruled By: ZIYAMBI JA, GARWE JA & PATEL JA

This is an appeal against the decision of the High Court granting summary judgment against the appellant in the sum of US$8,330,470=52 together with interest at 2.5% per annum above the prime overdraft Bank rate and costs of suit.

The claim against the appellant arose from a Service Provider Agreement concluded between the parties on 10 March 2006 (the Agreement). The Agreement required the appellant to pay the sums due thereunder within thirty days of receiving the respondent's invoices.

It is common cause that the appellant owed the respondent the outstanding amount claimed as at 30 September 2010.

The respondent issued summons on 16 November 2010, and, following the appellant's appearance to defend, applied for summary judgement on 14 February 2011.

The court a quo held that the respondent's claim was unimpeachable and that the appellant had no plausible defences to the claim. In particular, the court found that there was no supervening impossibility due to the currency regime changeover between January and March 2009, entailing any objective impossibility of recovering debts from the appellant's customers. Additionally, there was no condition precedent in the Agreement that those customers should first pay the appellant before it became obliged to pay the respondent. Lastly, there was no principal and agent relationship between the parties to preclude the recovery of payments from the appellant upon presentation of the respondent's invoices.

The grounds of appeal herein arise from the defences raised in the High Court, viz: supervening impossibility of performance, recovery from customers as a condition precedent for payment, and the existence of a principal and agent relationship between the parties.

In essence, the question to be determined is whether the learned judge was correct in holding that the respondent's claim was unassailable and that the appellant had no bona fide defences to that claim.

In addition, the appellant's heads of argument raise a further ground of appeal not pleaded in its Notice of Appeal. It is argued that the order granted by the court a quo is vague as it does not specify the applicable rate of interest and the dates when the amounts due accrued interest....,.

VAGUENESS OF COURT ORDER

The court a quo granted summary judgment as prayed for in terms of the draft order. The latter is regrettably terse and simply orders that summary judgement be entered in terms of the summons.

In the summons, the respondent's claim is for payment of the sum of US$8,330,470=52 with:

”Interest thereon at a rate of 2.5% per annum above the prime overdraft rate of the Standard Chartered Bank of Zimbabwe, from the date each payment was due to the date of payment.”

Counsel for the appellant contends that this part of the court order is vague and unclear as regards the rates of interest applicable and their respective dates of application.

As I have already indicated, this is not a ground of appeal that was raised in the notice of appeal. Nevertheless, it is a point of law that can be raised at any stage of the proceedings, provided that the other party is not thereby prejudiced.

Counsel for the respondent accepts that it would not be improper or prejudicial to the respondent for the point to be addressed and determined at this stage.

In my view, there is nothing vague or unclear in the court order as read with the summons.

The applicable rates of interest are undoubtedly available from the Bank cited and the dates from which those rates apply will be apparent from the relevant tax invoices presented by the respondent to the appellant.

In any event, this is an issue that should most appropriately be agreed between the parties themselves, or, failing such agreement, be referred to the court a quo for determination and quantification.

SC71-17 : TELECONTRACT (PRIVATE) LIMITED vs POSTAL AND TELECOMMUNICATIONS REGULATORY AUTHORITY and MINISTER OF INFORMATION, COMMUNICATION, TECHNOLOGY, POSTAL AND COURIER SERVICES and ANOTHER
Ruled By: GWAUNZA JA, MAVANGIRA JA and UCHENA JA

Counsel for the appellant urged this court to nevertheless determine the matter on the merits based on the evidence on record. This court, as a Court of Appeal, cannot usurp the functions of the court a quo and make a decision on the merits of the matter when the court a quo declined ...

Appealed
SC12-20 : ZIMASCO (PVT) LTD vs CASPER TSVANGIRAI and BAOBAB REAL ESTATE and THE REGISTRAR OF DEEDS BULAWAYO
Ruled By: GARWE JA, HLATSHWAYO JA and GUVAVA JA

This is an appeal against the whole decision of the High Court sitting in Bulawayo under judgment number HB16-14, dated 30 January 2014, in which the appellants' application for absolution from the instance at the close of the first defendants case was dismissed.BACKGROUND FACTSThe facts which gave rise to this ...

BACKGROUND FACTS

The facts which gave rise to this matter are mainly common cause and may be summarized as follows:

On 10 June 2008, the appellant and the first respondent entered into an agreement of sale of a certain piece of land known as Stand 1004 Redcliff Township, situate in the District of Que Que (hereinafter referred to as the property). The property was owned by the first respondent.

In terms of the first respondent's summons and declaration before the court a quo, the purchase price for the property was said to be set at a local currency equivalent to US$180,000. The appellant purchased the property with the aid of the second respondent, a registered real estate agent.

The dispute centered on the amount of the purchase price which was payable.

The first respondent alleges that it was a term of the agreement that if the payment was to be made by cheque the amount would be based upon the prevailing informal market rate on the date of such payment.

It is not in dispute that the appellant paid Z$720,000,000,000,000 (Z$720 trillion) on 11 June 2008 through an interbank transfer.

The first respondent was thereafter requested to sign a power of attorney to effect transfer of the property by the second respondent. The first respondent alleged that it was his understanding that the transfer would only pass upon receipt of the full purchase price. The first respondent averred that the appellant, or the second respondent, removed some pages from the written agreement of sale and altered, inter alia, the purchase price so that it read the sum of Z$720 trillion without his knowledge or consent. The first respondent further indicated that the appellant and the second respondent then attached the forged pages to the authentic document bearing the first respondent's signature to make a complete “agreement of sale”.

Following the signing of the power of attorney to transfer the property, the property was transferred into the appellant's name.

According to the first respondent, the amount paid by the appellant, when he received the money, was equivalent to US$96,000. This left a balance of US$84,000, or its equivalent, in Zimbabwe dollars, in respect of the purchase price.

The first respondent alleged that the appellant should pay the difference but the appellant argued that it had paid the purchase price in full in terms of the agreement.

Following this dispute, the first respondent instituted summons seeking the nullification of the purported Agreement of Sale and cancellation of the Deed of Transfer in favour of the appellant. In the alternative, the first respondent prayed for the appellant to pay the outstanding balance of US$84,000, or its equivalent, together with interest.

PROCEEDINGS IN THE HIGH COURT

After the first respondent instituted summons, the appellant and the second respondent entered an appearance to defend. In its plea, the appellant denied allegations of falsifying the Agreement of Sale.

The appellant contended that the purchase price was always in Zimbabwean dollars and not quoted in United States Dollars. The second respondent confirmed the appellant's story.

The appellant, thereafter, filed a counter claim for the eviction of the first respondent from the property. It also claimed payment of arrear rentals and holding over damages in the sum of $400 per month plus interest from the first respondent.

At the close of the first respondent's case, the appellant made an application for absolution from the instance. The appellant further asked the court to grant its counter-claim. The basis upon which this application was made was three pronged;

(i) Firstly, it argued that the respondent could not claim that there was under payment when he had failed to prove the exchange rate on 11 and 12 June 2008, when the payment was made, to sustain the assertion that the payment made was not enough if converted to United States dollars.

(ii) Secondly, that the power of attorney contained a purchase price of $720 trillion. The first respondent was not disputing his signature thereon. It thus submitted that the caveat subscripto maxim applied regarding the signed power of attorney.

(iii) Thirdly, that the basis of its claim for eviction was the rei vindicatio. It further alleged that because they possessed the title deeds of the property it was prima facie the owner of the property and the onus now lay on the first respondent to justify why the eviction sought was not warranted.

On that basis, it was submitted that it was entitled to the order in terms of its counterclaim for the first respondent's eviction, arear rental, and holding over damages.

It was common cause that the appellant made a payment in the sum of $720 trillion dollars through an inter-bank transfer commonly known as an RTGS.

The appellant contended that even if it was accepted that the purchase price was pegged in United States dollars, which was denied, where payment is made through a Bank transfer, the date of the payment was the date when the application to pay is made to the Bank and not the date the money is reflected in the account of the transferee. The appellant thus submitted that payment of the full purchase price was made on the date that the application for transfer of the funds was made with the Bank.

The first respondent contended that the purchase price for the property was the equivalent of US$180,000 and that the time of payment would be the time that he received the money in his Bank account and was able to use the money - and not when the application for an interbank transfer was made.

He argued that, because of hyperinflation at the time, when he received the money in his account on 13 June 2008, it was less than the agreed amount when converted into United States dollars.

He submitted that the appellant, therefore, had not paid the purchase price in full.

It was also his submission that the original Agreement of Sale that he signed indicated that the purchase price was the Zimbabwe dollar equivalent of US$180,000 but the agreement was tampered with such that the amount that was eventually reflected in the agreement was Zimbabwe $720 trillion.

The court a quo refused to grant the application for absolution from the instance made by the appellant.

The court reasoned that in view of the letter written by the appellant's legal practitioner in respect to the purchase price being quoted as equivalent to US$180,000 it was necessary for the appellant to explain what the exchange rate was on 11 and 12 June when payment was made.

With regards to the allegation that the signed power of attorney was proof of the purchase price, the court held that the issue could not be determined because of the allegation of fraud.

The court also found that it was necessary for the appellant to prove its counter claim for damages in respect to the arrear rentals and holding over damages.

As a result, the court also declined to grant the appellant's counter claim.

Dissatisfied with the determination of the court a quo, the appellant, having been granted leave, noted an appeal to this court on the following grounds:

“1. The court a quo erred in placing upon the appellant the onus to prove what the exchange rate was on the 11th and 12th June 2008 under circumstances where the onus was upon the 1st respondent and had to be discharged by him.

It so erred in failing to grant absolution from the instance on the basis of 1st respondent's failure to prove that he had not been paid the contract sum.

2. The court a quo further erred in not giving effect to the fact that 1st respondent had signed transfer documents knowing what those were and which bore the purchase price which he had already paid and which he now sought to discount. It particularly erred on coming to the conclusion that the issue could not be dealt with at that stage.

3. The court a quo further erred in failing to come to the conclusion that as appellant sought a rei vindicatio in its claim in reconvention, the failure by the 1st respondent to rescind the agreement would ipso jure entail the success of the action for vindication.

4. The court a quo further erred in failing to come to the conclusion that the damages for unlawful occupation could competently be awarded, at least on the basis of the 1st respondent's confession.”

THE APPELLANT'S SUBMISSIONS ON APPEAL

In its submissions before this court, the appellant argued that the first respondent bore the onus to prove, prima facie, that the sum of $720 trillion dollars that he received was not the full purchase price for the property. The appellant further argued that the first respondent also had the onus to prove the exchange rate that was applicable as at the date of payment so as to successfully argue that $720 trillion dollars did not amount to the US$180,000 that he alleged had been agreed to as the purchase price.

It was the appellant's contention that the approach of the court a quo, in holding that the onus lay on the appellant to prove the exchange rate on 11 and 12 of June 2008, was erroneous.

The appellant also submitted that, by signing the power of attorney to effect transfer, the first respondent had accepted that he had been paid the full purchase price and that he was estopped from denying same.

The appellant also stated that, in any event, the power of attorney was quoted in Zimbabwean dollars in the amount of $720 trillion and that was therefore the purchase price.

The appellant further submitted that the court a quo should have granted its application for absolution from the instance, and, thereafter, granted its claim for eviction of the first respondent together with holding over damages as claimed.

FIRST RESPONDENT'S SUBMISSIONS ON APPEAL

The first respondent argued that the decision of the court a quo was appropriate in the circumstances. The first respondent asserted that he had proved a prima facie case of fraud and forgery which the appellant was called upon to answer.

The first respondent further submitted that he had proved that the original Agreement of Sale was fraudulently altered without his knowledge. The purchase price clause which stated that the purchase price was the equivalent of US$180,0000 was altered to reflect the purchase price of Z$720 trillion.

The first respondent stated that this was proved by correspondence between the parties when they discussed the issue of the purchase price.

He further submitted that he was not obliged to prove the exchange rate on 11 and 12 June as he was of the view that payment was made on 13 June. He also alleged that he had successfully proved the exchange rate on the date he received the money.

The first respondent also denied that the appellant was entitled to its counter claim for eviction as the basis of the eviction was based on the contract which stipulated that the first respondent was to grant the appellant vacant possession upon payment of the full purchase price.

ISSUES FOR DETERMINATION BEFORE THIS COURT

Two issues arise from both the grounds of appeal and the submissions made by counsel before this Court. The issues to be determined by this court are as follows:

1. Whether or not the requisite evidentiary burden required to grant absolution from the instance at the end of the first respondent's case was discharged.

2. Whether or not the appellant was entitled to an order for the first respondent's eviction and damages.

1. WHETHER OR NOT THE REQUISITE EVIDENTIARY BURDEN REQUIRED TO GRANT ABSOLUTION FROM THE INSTANCE AT THE CLOSE OF THE FIRST RESPONDENT'S CASE WAS DISCHARGED

As stated above, the first respondent instituted proceedings against the appellant seeking the nullification of the Agreement of Sale in terms of which he had sold a piece of property to the appellant. His claim was also that the Deed of Transfer that had been made in favor of the appellant should be cancelled.

The first respondent prayed, in the alternative, that the outstanding balance for the property be paid.

After leading evidence to the effect that he had not been paid the full purchase price in accordance with the Agreement of Sale, the respondent closed his case.

The appellant then applied for absolution from the instance on the basis that the respondent's claim had not been established as insufficient evidence had been led to show that the Agreement of Sale had been altered.
It was also alleged by the appellant that the agreed purchase price of the property was always in Zimbabwean dollars and not the United States dollars equivalent as claimed by the first respondent. It was submitted, on behalf of the appellant, that, in the event that the court accepted that the purchase price was pegged in United States dollars, then, insufficient evidence had been placed before the court by the first respondent to establish a valid claim as he was unaware of the prevailing market exchange rates on 11 and 12 of June 2008.

It is trite that after a plaintiff has closed its case, a defendant, before commencing his own case, may apply for absolution of the plaintiff's claim. Should the court accede to this application, the judgment will be one of 'absolution from the instance'; see CILLIERS AC, LOOTS C and NEL HC, HERBSTEIN and Van WINSEN, The Civil Practice of the Supreme Court of South Africa (4th edn, Juta and Co Ltd)…,.

A decree of absolution from the instance is derived from Roman Dutch Law. It is the appropriate order to make after all the evidence led by the plaintiff has not laid out a prima facie case upon which a court may find for the plaintiff.

If, at the end of the plaintiff's case, there is insufficient evidence upon which a reasonable man could find for him, the defendant is entitled to absolution. See LH HOFFMAN, DT ZEFFERT, The South African Law of Evidence (4th ed)…, who notes the following:

“It has also been said that the term 'absolution from the instance' is used to describe the finding that may be made at either of two distinct stages of trial. In both cases, it means that the evidence is insufficient for a finding to be made against the defendant.”

It is trite that the court cannot mero motu consider whether absolution must be granted. It is an option which is available to the defendant, upon application.

When an application for absolution from the instance is made at the end of the plaintiff's case the test is: what might a reasonable court do, that is, is there sufficient evidence on which a court might make a reasonable mistake and give judgment for the plaintiff? If the application is made after the defendant has closed his case the test is: what ought a reasonable court do?

In deciding what a court may or may not do, it is implied that the court may make an incorrect decision, because, at the close of the plaintiff's case, it will not have heard all the evidence.

In the case of Nobert Katerere v Standard Chartered Bank Zimbabwe Limited HB51-08, it was stated thus:

“The court should be extremely chary of granting absolution at the close of the plaintiff's case. The court must assume that, in the absence of very special considerations, such as the inherent unacceptability of the evidence adduced, the evidence is true.

The court should not, at this stage, evaluate and reject the plaintiff's evidence.

The test to be applied is not whether the evidence led by the plaintiff establishes what will finally have to be established. Absolution from the instance, at the close of the plaintiff's case, may be granted if the plaintiff has failed to establish an essential element of his claim; Claude Neon Lights (SA) Ltd v Daniel 1976 (4) SA 403 (A); Marine & Trade Insurance Co Ltd v Van Der Schyff 1972 (1) SA 26 (A); Sithole v PG Industries (Pvt) Ltd HB47-05.”

What flows from the above cases is that absolution from the instance will not be granted if there is sufficient evidence, which a court, directing its mind reasonably to such evidence, could or might (not should or ought to) find for the plaintiff.

In casu, the first respondent averred that after the appellant paid him the equivalent of US$96,000, there was a balance of US$84,000.

It is common cause that payment was done through an inter-bank transfer on 11 June 2008. The first respondent received payment on 13 June 2008.

The first respondent, in his evidence, did not prove what the exchange rate was on 11 and 12 June 2008.

The first respondent alleged that he was not obliged to do so as his case was that he was only obliged to prove the exchange rate on the date that the money reflected in his account.

The evidence before the court a quo showed that as soon as the $720 trillion reflected in his account, the first respondent quickly contacted the appellant to inform it that the money deposited into his account had a shortfall of US$84,000.

The appellant did not respond, only to do so sometime in December 2008 indicating that the deposited amount was equivalent to the US$180,000.

The first respondent testified that the amount of US$96,000 was arrived at using the rate he was given by Trust Bank on 13 June 2008.

At the time the first respondent received the amount transferred, it was less than the United States dollar stipulated amount. There was, however, no evidence on which rate was being used at the time the money was transferred.

The appellant seems to suggest that the money it paid was equivalent to the United States dollar amount agreed to by the parties. The rate, however, was not stated in the agreement.

Once the appellant stated that the amount deposited was equivalent to US$180,000, the onus shifted from the first respondent to the appellant, as it now carried the evidentiary burden to prove that the transfer that it had made into the first respondent's account was equivalent to the US$180,000.

It was the view of the court a quo that it was incumbent upon the appellant to lead evidence to buttress its allegation that the amount it paid on 11 June 2008 was equivalent to the United States dollar amount. This was on the basis that the appellant had submitted that the amount paid on that date was equivalent to US$180,000.

It was thus incumbent upon the appellant to state the rate that it used in coming up with that assertion.

The court a quo made a finding that the appellant had to answer the question regarding the rate of exchange on 11 and 12 June 2008. This finding was made in light of the letter written by the appellant's legal practitioners affirming that the Zimbabwean dollar purchase price paid by the appellant to the first respondent was equivalent to US$180,000.

This position, taken by the appellant's legal practitioners, had to be established by evidence of the exchange rate on 11 and 12 June 2008.

It is trite that “he who alleges must prove”.

The maxim was applied in the cases of Circle Tracking v Mahachi SC04-07 and Goliath v Member of the Executive Council for Health, Eastern Cape 2015 (2) SA 97 (SCA).

In the absence of such evidence, the court, as the adjudicating authority, cannot make its determination.

I share the sentiments expressed in Delta Beverages (Pvt) Ltd v Murandu SC38-15, where it was stated that:

“I take the time to point out that parties are expected to argue their cases so as to persuade the court to see the merit, if any, in the arguments advanced for them. They are not expected to make bald, unsubstantiated averments and leave it to the court to make of them what it can.”

It is common cause that when the first respondent was asked what the exchange rate was on 11 and 12 June 2008 he indicated that he did not know. This was after the first respondent had indicated that he had received a sum less than the agreed US$180,000 on 13 June 2008.

In my view, this was a pertinent question which had to be answered by the first respondent. This is so regard being had to the argument by the appellant that the rate had to be calculated on the date that the money was paid into the Bank.

This position is premised on the principle stated by CHRISTIE R.H in Business Law in Zimbabwe (1st edn, Juta & Co Ltd, Cape Town, 1998) which stated that;

“If payment by cheques is permissible under the contract, its acceptance by the creditor, as held in Marshall v Ivory 1951 SR 76, 82, 1951 (2) SA 555 at 558, is conditional on it being subsequently honoured; so, if it is honoured, however, the time of payment is taken to be the time at which it was delivered to the creditor, even if it would not be possible to present it to the debtor's bank for payment until some later date.”…,.

Payment by interbank transfer is similar in all respects to payment by cheque. Proof of payment is calculated on the date that the transfer is accepted by the Bank and not on the date that it is received by the recipient.

Based on the above, the relevant date in the circumstances is therefore 11 June when the transfer was processed.

The onus thus lay with the first respondent to show that the amount paid on that date was not equivalent to the purchase price as agreed.

The court a quo's decision was clearly premised on the assertion by the appellant's legal practitioners that the amount paid by the appellant was equivalent to US$180,000. The relevant part of the letter which was written by the appellant's legal practitioners read as follows:

“17 December 2008
Mkushi Foroma and Maupa Legal Practitioners KWEKWE

RE: ZIMASCO (PRIVATE) LIMITED V C. TSVANGIRAI STAND 1006 REDCLIFF TOWNSHIP

Your letter of 17 November 2008 refers.

We now have our client's instructions and respond thereto as follows;

1. That Zimasco is aware of only one Agreement of Sale which is the one they signed for $720 trillion.

2. That the purchase price of $720 trillion paid was then equivalent to an amount of US$180,000 (which was discussed and agreed to by the parties). Using an agreed rate of $4 billion to a US$3. That the Agreement of Sale was signed in the afternoon of the 10th of June 2008 by Zimasco. Payment was effected on the 11th June 2008 within 24 hours of signature of the Agreement of Sale….,.”

Having alleged the above, it was the first respondents duty to prove to the court a quo that the amount paid was not equivalent to US$180,000 that had been agreed.

It was him, as plaintiff, who claimed that the amount paid to him was equivalent to US$96,000 only.

The exchange rate which was proved by the first respondent related to the date when the money reflected in his account. The rate proved was of no consequence in view of the fact that the rate had to be determined on the date that it was paid into the Bank by the appellant.

The date when it reflected in his account was of no moment to the resolution of the dispute between the parties.

It was the first respondent, as plaintiff, who alleged that he had not been paid in full and that what was paid was equivalent to US$96,000 only. The burden was on him to show how the sum of Z$720 trillion equalled to US$96,000 only. The duty was on the first respondent to prove that insufficient money had been paid warranting the cancellation of the Agreement of Sale or ordering the appellant to pay the alleged balance.

It seems to me that the court a quo erred and misdirected itself in finding that the appellant had to prove the exchange rate on 11 and 12 June 2008. It was for the respondent to prove his case.

Accordingly, absolution from the instance should have been granted by the court a quo.

2. WHETHER OR NOT THE APPELLANT WAS ENTITLED TO AN ORDER FOR THE FIRST RESPONDENT'S EVICTION AND DAMAGES

Having found that the court a quo erred in declining to grant absolution from the instance, the question of whether the appellant was entitled to an order for the eviction of the first respondent, arear rentals, and holding over damages, as counter claimed, must be heard and determined by the court a quo.

It is common cause that, following payment of the purchase price, the property was transferred into the appellant's name. Once the claim for eviction is brought two requirements must be proved;

(i) Firstly, that the appellant had ownership of the property; and

(ii) Secondly, that the first respondent was in unlawful possession of the property.

It was thus incumbent upon the appellant to lead evidence in support of the claim for eviction of the respondent.

With respect to the holding over damages and the arrear rental, the appellant has to lead evidence to prove the amounts claimed. They cannot be accepted on his mere say so.

DISPOSITION

The court a quo erred when it failed to grant absolution from the instance in this case.

The appellant had claimed costs in the event that it succeeded. In my view. costs must follow the cause.

Accordingly the appeal be and is hereby allowed in part with costs.

The judgment of the court a quo is hereby set aside and substituted with the following:

“1. The defendant is hereby absolved from the instance with costs.

2. The matter is hereby remitted to the court a quo for a determination of the counter claim.”

SC48-09 : HALWICK INVESTMENTS t/a WHELSON TRANSPORT vs GARAI NYAMWANZA
Ruled By: SANDURA JA, ZIYAMBI JA and GARWE JA

This is an appeal against the decision of the Labour Court setting aside the proceedings of a disciplinary committee constituted by the appellant and remitting the matter for a re-hearing before a different panel.

The background leading to the institution of disciplinary proceedings against the respondent is common cause.

The respondent was employed by the appellant as a driver. At the time the incident giving rise to the disciplinary proceedings took place, he was driving a truck belonging to the appellant carrying fertilizer destined for Zambia. There were also a number of other trucks belonging to the appellant carrying fertilizer to Zambia. At Chirundu Border post there was a delay in clearing the truck as one bill of entry was missing. The respondent then telephoned a Chief Superintendent Mandipaka of the Zimbabwe Republic Police and made a report to the effect that the appellant's clearing agents were smuggling fertilizer out of Zimbabwe. As a result of that report some sixteen trucks, some belonging to the appellant, were delayed at the border post whilst the police investigated the report made by the respondent.

Upon full investigation, however, the missing bill of entry was found and it was established that there was no intention on the part of the appellant, or its agent, to smuggle the fertilizer out of the country.

The appellant's clearing agent, thereafter, wrote a letter of protest to the appellant highlighting the inconvenience caused by the report and the expenses which the company had been forced to incur to have the matter resolved.

Against that background, the appellant instituted disciplinary proceedings against the respondent on a number of allegations of misconduct.

The disciplinary committee found the respondent guilty of misconduct and determined that his employment be terminated with effect from 14 December 2005. The respondent appealed to the appellant's Managing Director, who, by letter dated 23 December 2005, upheld the decision of the disciplinary committee. On 30 December 2005, the respondent filed a notice of appeal with the Labour Court, Harare, seeking a review of the proceedings. On 3 January 2006, however, the respondent and the appellant executed a document that read as follows:

“I, NYAMWANZA GS, in my capacity as Driver being duly authorized hereto, hereby confirm that I have, on this 03/01/06 day of Jan 2006, accepted from WHELSON TRANSPORT the sum of $15,168,014,179 in full and final settlement of my/our claim/entitlement arising out of Terminal Benefits and I confirm that my/our acceptance of the aforesaid amount determines finally my/our claim and that I/we have no future/retrospective claims against WHELSON TRANSPORT of any nature whatsoever, including interest costs, collection commission arising out of the subject matter aforesaid, or otherwise.

I therefore do hereby sign as acknowledgement and in agreement with the above without alterations or cancellations.”

The document was signed by the respondent.

Notwithstanding the above document, the respondent proceeded with his appeal before the Labour Court. He sought a review of the proceedings before the disciplinary committee on three grounds. These were;

(i) Firstly, that his senior, a Mr Ndoro, played the dual role of chairperson of the disciplinary committee and witness during the disciplinary hearing;

(ii) Secondly, that no hearing actually took place; and

(iii) Thirdly, that he was not given the opportunity to be heard.

In its submission before the Labour Court, the appellant raised two issues. These were;

(i) Firstly, that having executed the document dated 3 January 2006, the respondent waived any rights he may have had to challenge the decision to dismiss him whether by way of appeal or review.

(ii) Secondly, that the respondent had not established good legal ground for setting aside the dismissal.

The court a quo did not consider the issue of waiver raised. It only dealt with the question of procedural irregularity.

In determining that there had been a procedural irregularity and that the matter be remitted for a hearing, the Labour Court remarked:

“In this case, there was a serious procedural irregularity in that the Chairman of the Committee was the witness. He led evidence from the bench. Obviously, there was a real risk of bias in the findings by the Committee. However, from the facts of the matter which are follows:

Appellant was employed as a driver with the respondent. On the day in question, appellant was driving one of the respondent's trucks ferrying fertilizers to Zambia. When the appellant got to Chirundu Border Post and had found that one bill of entry form was missing he phoned the police and advised that respondent was smuggling fertilizers outside the country. As a result of the report 16 trucks belonging to respondent were delayed at the border whilst the police were carrying on investigations.

Respondent lost time and money. The investigations revealed the report was false.

The appellant was charged and dismissed from employment. Since the facts are common cause, to some extent, I will not order reinstatement of the appellant as he clearly has a case to answer.”

The appellant attacks the decision of the Labour Court on four grounds. These are:-

1. That the Labour Court misdirected itself by not dealing with the defence of waiver raised by the appellant....,.

I proceed to deal with the issue of waiver which is the first ground of appeal raised by the appellant.

Reference has already been made to the document signed by the respondent in which he accepted payment of a sum of money in full and final settlement of all his claims and in which he confirmed that his acceptance of the money finally determined any claim he may have had of any nature whatsoever.

In its heads of argument before the court a quo, the appellant specifically raised the issue of waiver.

It was the appellant's contention that by entering into the above agreement the respondent had waived his right to appeal or to take on review the termination of his employment. The appellant had further contended that the ordinary grammatical meaning of the agreement was that the respondent had made an undertaking that the execution of the agreement determined finally any claims of any nature whatsoever.

Despite the fact that the issue had been raised, the court a quo did not consider it at all and made no reference to the submission in its judgment.

This, in my view, was a misdirection.

I would agree with the appellant that the failure to deal with a defence raised by one of the parties amounts to a failure to hear and determine the matter according to law.

The question that necessarily arises at this stage is how the misdirection should be corrected.

The appellant has suggested that, since the facts are common cause and all that needs to be done is to determine whether, on the facts, waiver was established, this Court should itself determine the matter since all that is involved is the construction of a contract.

Unfortunately, this branch of the law is not as clear as the appellant would seem to suggest.

The position is now settled that it is not permissible for an Appellate Court to interfere with the discretionary power vested in a lower court unless it is shown that the lower court had committed such an irregularity or misdirection or exercised its discretion so unreasonably or improperly as to vitiate its decision – the Civil Practice of the Supreme Court of South Africa by HERBSTEIN & Van WINSEN, 4ed…,.

In the case of Johnsen v AFC 1995 (1) ZLR 65 (S)…, GUBBAY CJ further clarified the position when he remarked as follows…,:

“…, clearly, a distinction was drawn between the position of an Appellate Court where, on the one hand, the court of first instance had not exercised a judicial discretion at all, and, on the other, where it had exercised the discretion - but wrongly.

In the latter occurrence, the Appellate Court is not inhibited from setting aside the original discretion. It must examine, anew, the relevant facts and circumstances in order to exercise a discretion itself by way of review, which may uphold, reverse or vary, the order made by the court below.

In re J (an infant) 1981 (2) SA 330 (Z) at 335D-E, I ventured to state the principle, as I understood it, thus:

'If the (primary) court erred in the exercise of its discretion, and as all the facts relevant thereto are undisputed, this Court is now free to exercise its own discretion…,. If the primary court acts upon a wrong principle, if it allows extraneous or irrelevant matters to guide or affect it, if it makes mistakes of fact, if it does not take into account some material consideration, then its determination should be reviewed and the Appellate Court may exercise its own discretion in substitution - provided always it has the materials for doing so.'”

In Johnsen v AFC 1995 (1) ZLR 65 (S) the appellant had sought an order declaring, inter alia, that the AFC was not entitled to recover any amount claimed to be due in respect of an escalation of expense, however caused, of the equipment for the purchase of which the loans were granted.

The learned Judge who heard the application was of the view that this was not a proper case for the grant of a declaratory order because;

(a) Firstly, what was sought was a legal opinion from the Court;

(b) Secondly, that such relief, if granted, would not bring litigation between the parties to finality; and

(c) Thirdly, that there was an alternative remedy by way of an interdict.

This Court rejected that finding and came to the conclusion that the omission of the court a quo to have regard to the terms of the agreement of loan as a factor to be weighed in the exercise of its judicial discretion constituted a misdirection. This Court remarked…,:

“In my view, the failure by the court a quo to construe the agreement of loan caused it to overlook that a declarator, though not necessarily ending all litigation over the issue of liability between these parties, nonetheless would have achieved finality on the applicability of the summary execution procedures….,.”

This Court then decided to exercise its judicial discretion since the same materials that were before the court a quo were also before it.

The position was also aptly summarized by STEGMANN J in Tjospomie Boerdery (Pty) Ltd v Drakensberg Botteliers (Pty) Ltd & Anor 1989 (4) SA 31…, when he stated:

“1. There is no rule of law to the effect that in every appeal against the exercise of any discretionary power vested in court of first instance the Court of Appeal has no jurisdiction to interfere with the decision appealed against unless such decision is shown to have been un-judicial in one of the respects mentioned in Ex parte Neethling and Others 1951 (4) SA 331 (A) at 335D-E.

2. In an appeal against the exercise of a discretionary power by a court of first instance, the first task of the Court of Appeal is to examine the nature of the discretionary power, and to decide whether it belongs to the category of discretionary powers contemplated by the decision in Ex parte Neethling and Others.

3. If the power is found to belong to such category, the Court of Appeal has no jurisdiction to interfere with the exercise of the power decided on by the court of first instance unless such decision is shown to have been unjudicial in one of the respects mentioned in Ex parte Neethling and Others, ie that such decision was capricious; that it was based on a wrong principle; that it was not reached by unbiased judgment; or that it was not based on substantial reasons.

4. If the discretionary power is not found to belong to such category, the Court of Appeal must decide to what category it does belong.

One possibility is that it may be found to belong to the same category as the discretionary power in Mahomed v Kazi's Agencies (Pty) Ltd and Others 1949 (1) SA 1162 (N).

5. If the power is found to belong to the last-mentioned category, the function of the Court of Appeal is to hear all such arguments as may be addressed on the basis of the record before it, and to give due consideration to the decision of the court of first instance.

6. In some cases, it may be possible to conclude that the exercise of the discretionary power by the court below was 'wrong' in some sense other than the sense of 'un-judicial' contemplated by Ex parte Neethling and Others.

However, discretionary powers being what they are, there is usually no objective criterion according to which the exercise of such power can be judged to be 'right' or 'wrong'. The criteria according to which it may be judged to be 'judicial' or 'unjudicial' are dealt with in Ex parte Neethling and Others.

However, there are always criteria according to which the exercise of a discretionary power may be judged to be 'appropriate' or 'in-appropriate'. Such criteria depend upon the circumstances of the particular case. In the very nature of things, therefore, when the subject matter of an appeal is the exercise of a discretionary power of the kind referred to in para 5 above, the Court of Appeal is not bound to uphold the decision of the court below unless satisfied that such decision was 'wrong'.

7. In an appeal against the exercise of such a discretionary power, the function of the Court of Appeal is to consider whether, in the light of all relevant factors, the exercise of the power by the court of first instance was appropriate to the circumstances of the particular case. If it was, the appeal must fail. If it was not, the Court of Appeal must exercise the discretion anew, and must substitute its own discretion for the discretion of the court below.”

I am satisfied that the authorities referred to above correctly reflect the law on this aspect.

There was a failure by the court a quo to determine an issue that had been properly raised by the appellant.

The Court completely ignored the issue of waiver raised and proceeded to determine the matter on the basis of procedural impropriety. There was a failure by the court a quo to appreciate that the question of waiver could finally determine the issues between the parties, depending on the interpretation that would be given to the agreement reached between the two sides.

The contents of the agreement are not in dispute.

In these circumstances, I am satisfied that no purpose would be served by remitting this matter to the court a quo for it to place an interpretation on the contents of the agreement entered into between the two parties.

Since the contents of the agreement are common cause, the only issue that arises is whether the facts establish waiver.

It has never been suggested that the document was the result of duress, mistake or undue influence.

I hold the view, therefore, that this Court can properly determine the issue without the need to remit the matter to the court a quo.

SC40-20 : STUTTAFORDS REMOVALS (PRIVATE) LIMITED vs GODFREY NYAMAZUNZU
Ruled By: MAKARAU JA, GOWORA JA and BERE JA

This is an appeal against the whole judgment of the Labour Court of Zimbabwe dated 14 July 2018 wherein an application for condonation for failure to file an application for leave to appeal in time was dismissed.

Briefly, the background to this matter is as follows:

The respondent was employed as an accountant by the appellant. He was charged with misconduct, that is, wilful disobedience of a lawful order given by the employer. The respondent was found guilty and his contract of employment was terminated.

The respondent then appealed to the Labour Court which upheld his appeal on 8 April 2016.

In terms of section 35 of S.I.59 of 2006 the appellant ought to have sought leave to appeal to this Court within 30 days from the date of the judgment of the Labour Court.

Having failed to observe the prescribed time limits the appellant sought condonation for the late noting of its application for leave to appeal before the Labour Court.

In deciding the application for condonation, the Labour Court concluded that the appellant had not been candid with the court on its explanation for the delay. The court held that it was unnecessary for it to deal with the other principles applicable in applications for condonation. The court proceeded to dismiss the application for condonation before it with costs.

It is this finding of the court a quo which has led to this appeal.

The appellant, having obtained leave to appeal to this Court on 24 November 2017, noted this appeal on the grounds stated hereunder:

“1. The Labour Court erred in law in its refusal of the application for condonation for failure to comply with the Rules on the basis that there were 'no compelling circumstances which justified a finding in Applicant's favour', when such is not the test applicable in an application such as the one which was before the court.

2. The Labour Court erred in law, in finding that it was unnecessary to consider all the principles applicable in an application such as the one that was before it, with the result that the court did not consider all the other factors which weighed heavily in favour of the application being granted.”

ISSUE FOR DETERMINATION

Whether or not the court a quo erred in dismissing the application for condonation.

THE LAW

The issue that arises from these grounds of appeal is whether the test applicable in matters for condonation was properly applied to the facts of this present matter by the court a quo.

The requirements for condonation have been set out in a plethora of cases, including the case of Bessie Maheya v Independent Africa Church SC58-07. In that case, the court stated the following:

“In considering applications for condonation of non-compliance with its Rules, the Court has a discretion which it has to exercise judicially in the sense that it has to consider all the facts and apply established principles bearing in mind that it has to do justice. Some of the relevant factors that may be considered and weighed, one against the other, are:

(i) The degree of non-compliance;

(ii) The explanation therefore;

(iii) The prospects of success on appeal;

(iv) The importance of the case;

(v) The respondent's interests in the finality of the judgment;

(vi) The convenience to the Court; and

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

A reading of the record shows that the court a quo took into account one of the requirements to be considered in an application for condonation. Consequently, the enquiry that the court a quo made was inconclusive.

The court only considered the extent of the delay and ended there. It did not have regard to the other considerations for the granting of condonation. This is apparent from the judgment of the court a quo where the learned judge concluded her judgment by stating:

“I am convinced that this is a case in which the sins of the legal practitioner are visited on the client. I therefore do not consider it necessary to deal with whether or not other principles applicable in condonation are favourable to applicant.”…,.

Issues to do with the prospects of success on appeal, the importance of the case, the respondent's interests in the finality of the judgment, the convenience to the court, and the avoidance of unnecessary delays in the administration of justice were completely brushed aside by the court a quo. See Paul Gary Friendship v Cargo Carriers Limited & Anor SC01-13.

The finding that the explanation for the delay was unreasonable became the basis for the court a quo's justification in not considering the other factors that ought to be taken into account in condoning a party who is in breach of the Rules.

With this finding, the court a quo resorted to visiting the sins of the legal practitioners on the client and dismissed the application for condonation.

In light of the above, counsel for the appellant argued that as the court a quo had failed to consider all the requirements for condonation, cumulatively, the appeal had to be allowed.

Per contra, counsel for the respondent contended that the court a quo had power to exercise its discretion in such matters even without considering all the laid down requirements. He further argued that this could be done without taking into account the merits of the matter hence the appeal lacked merit.

I do not agree with this proposition of the law.

It was incumbent upon the court a quo to deal with all the considerations in the determination of the application for condonation. Failure to do so was a misdirection on the part of the court. It ought to have first applied the laid down principles to the facts of the case before proceeding to justify the stance it took in opting to dismiss the application for condonation.

In the case of United Plant Hire (Pty) Ltd v Hills & Ors 1976 (1) SA 717 (A)…, the principles of the law are re-stated as follows:

“It is well established that, in considering applications for condonation, the Court has a discretion, to be exercised judicially upon a consideration of all of the facts; and that, in essence, it is a question of fairness to both sides.

In this enquiry, relevant considerations may include the degree of non compliance with the Rules, the explanation therefor, the prospects of success…, (on the merits), the importance of the case, the respondent's interest in the finality of his judgment, and the avoidance of unnecessary delay in the administration of justice.

The list is not exhaustive.

These factors are not individually decisive but are inter-related and must be weighed one against the other; thus, a slight delay and a good explanation may help compensate for prospects of success which are not strong.”…,.

Condonation remains a sole discretion of the court, which discretion has to be exercised judicially upon a consideration of all facts, at all times with a view of doing justice between man and man.

A reading of United Plant Hire (Pty) Ltd v Hills & Ors 1976 (1) SA 717 (A) shows that such exercise of discretion must be done after a consideration of all the relevant factors.

The case of Ngirazi v Saurosi & Anor HB84-18 exhibits how the courts weigh the factors one against the other in granting condonation. It was stated as follows:

“It is settled in this jurisdiction that where the explanation for the delay is unsatisfactory then the prospects of success of the appeal must be really great before the court can exercise its discretion to condone the non-compliance.

As stated by BEADLE CJ in Kuszaba-Dabrowski et uxor v Steel N.O. 1966 RLR 60 (AD)…,;

'.., the more unsatisfactory the explanation for the delay, so much greater must be the prospects of success of the appeal be before the delay will be condoned; and the converse must of course be equally true; the more satisfactory are the explanations for the delay, the more easily will the court be inclined to condone the delay provided it thinks there is prospects of the appeal succeeding.'”

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

It is apparent from the above cases that all the laid down factors ought to be taken into account when dealing with an application for condonation.

This was not done in the application a quo.

Instead of individually dealing with these factors, and weighing them one against the other, the court a quo opted to deal with only the explanation for the delay.

This was a misdirection on the part of the court a quo.

In the case of Tshova Mubaiwa Transport Co-Operative Limited and Ors v Mpofu and Ors HB167-04, it was further stated that;

“While these courts have on many occasions held that a litigant chooses his legal representative and it is through that choice that he should either succeed or fail in that litigation. However, this approach should not be adopted as a cut and dry principle. Applicant's explanation, together with other factors supra, should also be considered…,. Therefore, to allow one party to find a way out of the problem through a technical fault will be a failure by these courts to do justice between man and man.”…,.

The court a quo failed to determine the issues that were before it. It failed to make a determination on whether or not the appellant had satisfied all the requirements for condonation. This was a serious mis-direction that warrants interference by this Court.

This is a case where a remittal of the matter to the court a quo for a consideration of all the requirements for condonation to be done. Those principles ought to be weighed one against the other before the application can be determined. This is so because the merit in one of the principles may help in compensating the weaknesses or lack of merit in the other laid down principles.

Accordingly, it is ordered as follows:

1. The appeal succeeds with costs.

2. The judgment of the court a quo is set aside.

3. The matter is remitted to the court a quo for consideration of the proper requirements for condonation.

SC94-20 : ZIMBABWE HOMELESS PEOPLE'S FEDERATION and OTHERS vs MINISTER OF LOCAL GOVERNMENT AND NATIONAL HOUSING and ZVIMBA RURAL DISTRICT COUNCIL and LEENGATE PL and MINISTER OF LANDS
Ruled By: PATEL JA, MAVANGIRA JA and MATHONSI JA

This is an appeal against the judgment of the High Court dismissing an application by the appellants for a declaratory order and consequential relief pertaining to various fundamental rights, in particular, the right of children to shelter.

The application was dismissed with no order as to costs.

The first appellant is an association of homeless people with public interest in the right to housing. The second and sixth appellants are members of the first appellant and brought the application a quo on behalf of their minor children, i.e. the third, fourth, fifth, seventh and eighth appellants. For ease of reference, the association, its members, and their minor children will all be collectively referred to as “the appellants”.

The first respondent is the Minister of Local Government and National Housing, responsible for housing and the administration of local authorities. The second respondent is Zvimba Rural District Council, the local authority wherein a peri-urban area called Haydon Farm is located. The third respondent is a housing development contractor which acquired the right to develop the said farm. The fourth respondent is the Ministry of Lands, Land Reform and Rural Resettlement which was cited as the acquiring authority of the farm.

It is common cause that the appellants settled on Haydon Farm in the year 2000, constructed permanent houses, and commenced farming activities on the farm. In 2005, the fourth respondent acquired the farm and designated it as urban land under the jurisdiction of the first respondent. Part of the land was allocated to the City of Harare and certain other parts to the second and third respondents.

A low density suburb is currently sprouting on the farm.

The appellants' residential structures were demolished in 2005. They now live in cabins and shacks and are prohibited from constructing permanent structures. They were then given notice to vacate the farm so as to enable the third respondent to carry out the construction of houses thereon.

It is not in dispute that the appellants have no alternative accommodation and that their children attend a school within the area.

Judgment of the High Court

The court a quo found that the right to shelter, under section 28 of the Constitution, is subject to the availability of State resources and that the State must take reasonable measures within the limits of available resources to enable citizens to have adequate shelter. The State is only obliged to provide for the progressive realisation of the right to shelter. Section 28 does not create any right to shelter but only sets out a national objective which is not enforceable.

As regards section 19 of the Constitution, the court took the view that this provision merely prescribes national aspirations pertaining to the rights of children. This provision is also qualified by the availability of resources. The State must put in place policies and measures to ensure that the interests of children are paramount. However, the primary obligation lies on parents to properly care for their children. This provision does not create any enforceable rights. The State is only responsible for those children who have been removed from their family environment.

Turning to section 81 of the Constitution, the court held that this provision did not create any absolute, independent, and justiciable right to shelter for children. There was no primary obligation on the State to provide shelter for children in the care of their parents. The State was only obliged to take measures, within its available resources, to ensure the progressive realization of the right to shelter. It is the parents who have the primary obligation to ensure that their children have adequate shelter. In the instant case, the children in question were not in State care and had not been removed from their parents.

With respect to Haydon Farm, the court observed that the appellants' stay on the land had not been regularised and that the acquiring authority had other plans for the land. Additionally, the appellants could not demand alternative land as a pre-condition to vacating the farm. The court could not compel the fourth respondent to allocate land to the appellants. This was a function that was purely within the domain of the State. The appellants could not insist on being allocated land within an urban area.

According to the court, the conduct of the respondents was in pursuit of the legitimate aim of urban development and expansion of the City in a planned and orderly fashion. There was a pressing social need for urban housing and development. The forced eviction of the appellants, and others in their position, was for the general public good and was justified. However, to avoid their arbitrary eviction, the appellants must be given the opportunity for genuine consultation and adequate notice of the scheduled eviction in accordance with the due process of law.

In the event, the court held that the appellants had failed to show the existence of a clear right for the interdictory relief that they sought. The application was accordingly dismissed with no order as to costs.

Grounds of Appeal and Relief Sought

The stated grounds of appeal in this matter are conspicuously repetitive. Shorn of that obvious defect, they relate, in essence, to the interpretation and application of sections 74 and 81 of the Constitution. Section 74 codifies the freedom from arbitrary eviction, while section 81 enshrines the rights of children.

With respect to section 74, the appellants attack the judgment a quo for having failed to protect the appellants from arbitrary eviction without due process and a valid court order.

As regards section 81, the appellants asseverate the justiciability and enforceability of the right to shelter in favour of children. The judgment a quo is impugned for having failed to properly consider the scope and extent of the State's obligations under section 81 insofar as children in parental care are concerned.

The relief craved by the appellants is threefold;

(i) Firstly, they seek an interdict against the respondents from ejecting the minor appellants from the informal settlement on Haydon Farm.

(ii) Secondly, they seek a declarator to the effect that the right of children to housing is justiciable and enforceable as an independent right not dependent upon the general right to housing or shelter.

(iii) Thirdly, the appellants seek substantive relief commanding the first and fourth respondents to allocate serviced Stands and construct minimum core houses on the informal settlement presently occupied by the appellants. Alternatively, the first respondent is to be ordered to provide alternative land on which it must allocate residential Stands conforming to the same specifications.

Right to Shelter under International Law and the Constitution

The right to shelter is generally recognised, both under international law and municipal law, as a fundamental socio-economic right. The dearth of adequate housing lies at the heart of the myriad deplorable iniquities that bedevil societies generally, not only in developing countries but also in the developed world. As has been observed in several jurisdictions, the courts play a pivotal role in ensuring the eradication of social inequalities and actualising socio-economic rights, thereby promoting and advancing the attainment of social justice. See People's Union for Democratic Rights & Ors v Union of India & Ors 1983 (1) SCR 456; Soobramoney v Minister of Health (Kwazulu Natal) 1998 (1) SA 765 (CC).

In the sphere of international law, there are two key instruments that enshrine the rights of children and the concept of their best interests. The first is the United Nations Convention on the Rights of the Child (1989). The second is the African Charter on the Rights and Welfare of the Child (1990).

Article 3(1) of the United Nations Convention on the Rights of the Child (1989) stipulates that “the best interests of the child shall be a primary consideration” in all actions concerning children. By virtue of Article 3(2), “State Parties undertake to ensure the child such protection and care as is necessary for his or her wellbeing”, taking into account the rights and duties of parents and legal guardians, “and, to this end, shall take appropriate legislative and administrative measures.”

These provisions are mirrored and re-affirmed in Article 4 of the African Charter on the Rights and Welfare of the Child (1990).

With respect to the role of parents, Article 27(2) of the United Nations Convention on the Rights of the Child (1989) recognises that parents “have the primary responsibility to secure, within their abilities and financial capabilities, the conditions of living necessary for the child's development.” Nevertheless, in terms of Article 27(3), States Parties are also enjoined “in accordance with national conditions, and within their means” to “take appropriate measures to assist parents” and “in case of need, provide material assistance and support programmes, particularly with regard to nutrition, clothing, and housing.”

To similar effect, Article 20 of the African Charter on the Rights and Welfare of the Child (1990) places the primary obligation to implement children's rights on parents, but, also obligates the State to assist parents in that endeavour, with particular reference to nutrition and housing.

Both the United Nations Convention on the Rights of the Child (1989) and the African Charter on the Rights and Welfare of the Child (1990) have been ratified by Zimbabwe, the former on 11 September 1990 and the latter on 19 January 1995. Consequently, by dint of section 46(1)(c) of the Constitution, it is incumbent upon our courts to take them into account in interpreting the Declaration of Rights entrenched in Chapter 4 of the Constitution.

This is reinforced by section 327(6) of the Constitution which dictates the adoption of any reasonable interpretation of domestic legislation that is consistent with any treaty or convention which is binding on Zimbabwe in preference to any alternative interpretation that is inconsistent with that treaty or convention.

The next question concerns the justiciability and enforceability of the relevant rights dealt with by the court a quo and presently under scrutiny on appeal, i.e. sections 19, 28, 74 and 81 of the Constitution.

Sections 19 and 28, which set out national objectives vis-à-vis children and shelter respectively, are located in Chapter 2 of the Constitution. Section 19(2)(b) enjoins the State to “adopt reasonable policies and measures, within the limits of the resources available to it, to ensure that children…, have shelter and basic nutrition, health care, and social services.”

Section 28 calls upon the State and the Government to “take reasonable legislative and other measures, within the limits of the resources available to them, to enable every person to have access to adequate shelter.”

In my view, these provisions are essentially hortatory in nature, given that they are qualified by the condition that they are to be realized “within the limits of the resources available” to the State and the Government. In this sense, they cannot be said to be strictly justiciable and enforceable in themselves.

Nevertheless, they are not to be regarded as being entirely superfluous and otiose and therefore devoid of any legal significance whatsoever. They remain interpretively relevant for the purpose of informing and shaping the specific contours of the substantive rights enshrined elsewhere in the Constitution….,.

Chapter 4 of the Constitution sets out the Declaration of Rights, divided into several Parts.

Part 1 deals with the application and interpretation of Chapter 4. Part 2 enumerates those rights that are considered to be fundamental rights and freedoms. Part 3 elaborates certain rights and freedoms in relation to their application to particular classes of people. Part 4 provides for the enforcement of fundamental human rights and freedoms, while Part 5 delineates the limitation of those rights and freedoms.

The specific provisions that are germane for the purposes of this appeal are sections 74 and 81.

Section 74 guarantees the freedom from arbitrary eviction and appears in Part 2 under the rubric of fundamental human rights and freedoms. Section 81 spells out the rights of children and appears in Part 3 relative to the elaboration of certain rights.

Counsel for the appellants submits that the rights accorded by sections 74 and 81 are justiciable and enforceable. He relies in this respect on section 44 of the Constitution which sets out the duty of the State, every person, and the Government, at every level, to “respect, protect, promote and fulfil the rights and freedoms set out in [Chapter 4].”

Counsel for the first and fourth respondents adopts a curiously contentious position grounded in the particular location of the provisions under consideration. Sections 19 and 28, dealing with children and adequate shelter, are to be found not in Chapter 4 but in Chapter 2 of the Constitution. Chapter 2 relates to national objectives and aspirations to be progressively attained according to available resources. Additionally, section 81 is located in Part 3 rather than Part 2 of Chapter 4. Consequently, so it is argued, sections 19, 28 and 81, taken together, cannot be interpreted to confer any justiciable or enforceable right to shelter in favour of children.

Counsel for the second respondent takes a similar stance premised on the argument that first generation civil and political rights are absolute and fully enforceable. However, second generation social and economic rights, so he contends, are not absolute, justiciable or enforceable.

I am unable to find any merit whatsoever in the arguments propounded by counsel for the respondents.

Both sections 74 and 81 are located in Chapter 4 of the Constitution, the former under Part 2 and the latter under Part 3 of that Chapter. Clearly, there can be no argument about the justiciability and enforceability of section 74.

As regards section 81, the correct position, relative to the application of Part 3, is amply clarified by section 79 which provides as follows:

“(1) This Part elaborates certain rights and freedoms to ensure greater certainty as to the application of those rights and freedoms to particular classes of people.

(2) This Part must not be construed as limiting any right or freedom set out in Part 2.”

The objective underlying Part 3 of Chapter 4 is unequivocally clear. It is to elaborate certain rights and freedoms so as to ensure greater certainty in their application to particular classes, namely, women, children, the elderly, the disabled, and war veterans. The objective is certainly not to dilute, diminish or devalue the rights that are particularised in Part 2, but, rather, to fortify those rights by elaborating and imbuing them with a greater measure of certitude.

It follows, in my view, that the rights accorded to children under sections 74 and 81 of the Constitution are not only justiciable but also constitutionally enforceable.

Access to Adequate Shelter or Housing

Section 28 of the Constitution, which appears in Chapter 2, under the broad rubric of National Objectives, provides that:

“The State, and all institutions and agencies of Government, at every level, must take reasonable legislative and other measures, within the limits of the resources available to them, to enable every person to have access to adequate shelter.”…,.

It is immediately apparent that the obligation imposed upon the State, and other governmental institutions and agencies, to avail access to adequate shelter is one that is to be fulfilled within the limits of the resources available to them. This qualification is significant but does not absolve the State of its administrative obligation to take reasonable legislative and other measures to enable the populace, as a whole, to have access to adequate shelter.

The equivalent provision, under the South African Constitution, is contained in section 26(1) which provides for a “right of access to adequate housing.”

The obvious distinction between this provision and our section 28 is that, in addition to the obligation imposed upon the State, it also confers a corresponding right to housing.

In the leading case of Government of the Republic of South Africa v Grootboom 2001 (1) SA 46 (CC), it was observed that access to land, services, and a dwelling is also included in the right to access to adequate housing. Additionally, the State, through legislative and other measures, must create the conditions for access to adequate housing for people at all economic levels of society (at paragraph 35). The obligation upon the State is to achieve “the progressive realisation of this right” by examining and lowering legal, administrative, operational, and financial hurdles over time. However, this does not deprive the obligation of all meaningful content. The State remains bound to move, as expeditiously and effectively as possible, towards the goal of full realisation of the right, with full use of the maximum resources available (at paragraph 45).

In any event, as I have already intimated, the obligation imposed upon the State, in terms of our section 28, to adopt reasonable measures, is significantly qualified by the limits of available resources.

As was explained in Government of the Republic of South Africa v Grootboom 2001 (1) SA 46 (CC) at paragraph 46:

“…, the obligation to take the requisite measures is that the obligation does not require the State to do more than its available resources permit. This means that both the content of the obligation, in relation to the rate at which it is achieved, as well as the reasonableness of the measures employed to achieve the result, are governed by the availability of resources. Section 26 does not expect more of the State than is achievable within its available resources….,.

There is a balance between goal and means. The measures must be calculated to attain the goal expeditiously and effectively but the availability of resources is an important factor in determining what is reasonable.”…,.

Protection against Arbitrary Eviction

Section 74 of the Constitution guarantees the freedom from arbitrary eviction and stipulates that:

“No person may be evicted from their home, or have their home demolished, without an order of court made after considering all the relevant circumstances.”

Commenting on the South African equivalent, i.e. section 26(3), which is ad idem with our section 74, CURRIE & De WAAL: The Bill of Rights Handbook (6th ed. 2013)…, summarise this provision as follows:

“The general right of access to housing can be negatively enforced against improper invasion in the form of arbitrary evictions. Section 26(3) puts the matter beyond doubt by expressly entrenching a conventional negative right, unqualified by considerations relating to the State's available resources, against arbitrary evictions and demolitions.”

Within the broader context of housing rights generally, the learned authors…, observe that:

“…., mass eviction is a retrogressive step on the road to the promotion of the right of access to adequate housing and needs to be justified, not just on its own terms as an eviction, but also within the bigger picture of progressive housing delivery.”

The meaning of the word “home”, as used in section 74, is to be very broadly construed.

The word embraces both permanent and temporary places of abode as well as shacks and informal dwellings. It has also been conceptually defined to mean a shelter against the elements providing some of the comforts of life with some degree of permanence. See Ross v South Peninsula Municipality 2001 (1) SA 589 (C); Port Elizabeth Municipality v Various Occupiers 2005 (1) SA 217 (CC)…,.; CURRIE & De WAAL: The Bill of Rights Handbook (6th ed. 2013)…,.; City of Harare v Mukunguretsi & Ors SC46-18…,.; Zuze v Trustees of Mlambo & Anor SC69-19…,.

In Zuze v Trustees of Mlambo & Anor SC69-19…, this Court elaborated the essential elements of the freedom from arbitrary eviction and demolition under section 74:

“The essential elements of the protection afforded by section 74 are twofold;

(a) The first is that no person may be evicted from his home or have his home demolished 'without an order of court'. This is a basic procedural requirement to ensure that the law is followed in conformity with due process. This was underscored in the City of Harare case (supra), at paras. 12 & 15, as a prerequisite to the lawful demolition of the respondents' homes….,.

(b) The second element relates to the possible arbitrariness of an eviction and necessitates that the court seized with the matter must consider 'all the relevant circumstances' before it grants an order of eviction or demolition.

With respect to the South African equivalent of our section 74, i.e. section 26, the provision has been construed to confer not only a procedural right but also a substantive benefit to include the issue of whether or not the prospective evictee has access to alternative housing.”

As regards what constitutes “all the relevant circumstances” for the purposes of section 74, the Court took the view that the legality or otherwise of occupation by the potential evictee was immaterial and did not detract from the scope and extent of the protection afforded by the section. It was held…,:

“In the final analysis, what is required in considering all the relevant circumstances is a balancing exercise between the rights and interests of all the parties involved in or affected by the eviction dispute.

In the instant case, the relevant circumstances are relatively clear. The appellant was a bona fide occupier who was not aware that the subdivision that he occupied was illegal. He had been residing on the land in question for almost nine years. What is not apparent from the record is whether he had suitable alternative accommodation or land to occupy consequent upon his eviction from the property.

What emerges from the foregoing factual conspectus is that the appellant had a direct and substantial interest in the matter notwithstanding that his occupation of the property might have been illegal. In terms of section 74 of the Constitution, he had a procedural right to be heard apropos all the relevant circumstances pertaining to his occupation of the property.”

The relative immateriality of the applicant's illegal occupation was further underscored, at pp.18-19:

“There is no doubt that the appellant has no substantive real rights in the property in question. Nevertheless, although section 74 of the Constitution does not confer any substantive real rights, it operates to guarantee the procedural rights, that I have elaborated above, on any person who stands to be evicted from his home. Moreover, the ambit of the protection accorded by section 74 is not confined to strictly legal occupants of land or property. Having regard to the plain and ordinary connotation of a 'home', that protection extends as well to unlawful occupiers of any property that can be characterised as constituting a home.”

In my view, the privacy and sanctity of one's domestic space, and the potential trauma of being forcibly or involuntarily ejected from one's home, cannot, in any situation, be over-emphasized.

As was recognised in Port Elizabeth Municipality v Various Occupiers 2005 (1) SA 217 (CC)..,:

“Section 26(3) evinces special constitutional regard for a person's place of abode. It acknowledges that a home is more than just a shelter from the elements. It is a zone of personal intimacy and family security. Often, it will be the only relatively secure space of privacy and tranquillity in what (for poor people in particular) is a turbulent and hostile world. Forced removal is a shock for any family, the more so for one that has established itself on a site that has become its familiar habitat.

As the United Nations Housing Rights Programme report points out:

'To live in a place, and to have established one's own personal habitat with peace, security and dignity, should be considered neither a luxury, a privilege nor purely the good fortune of those who can afford a decent home. Rather, the requisite imperative of housing for personal security, privacy, health, safety, protection from the elements and many other attributes of a shared humanity, has led the international community to recognize adequate housing as a basic and fundamental human right.'”

In any event, it is salutary to point out that section 74 does not preclude eviction generally and clearly acknowledges the possibility of informal settlers being evicted under due process - even if this results in the loss of their home. However, this does not mean that homelessness should invariably and immediately eventuate in all cases.

The private landowner of property that is occupied by illegal settlers may have to be patient in the course of eviction. By the same token, the State, or relevant local authority, may have to take the requisite measures, within their available resources, to avert or mitigate the spectre of homelessness. Such limitations upon the rights of private landowners, and the imposition of correlative obligations upon the State and local authorities, may be warranted in the interests of justice and equity and dictated by the prevailing circumstances.

The aforegoing considerations were aptly highlighted in City of Johannesburg Metropolitan Municipality v Blue Moonlight Properties 39 (Pty) Ltd 2012 (2) SA 104 (CC)…,.:

“It could reasonably be expected that when land is purchased for commercial purposes the owner, who is aware of the presence of occupiers over a long time, must consider the possibility of having to endure the occupation for some time. Of course, a property owner cannot be expected to provide free housing for the homeless on its property for an indefinite period. But, in certain circumstances, an owner may have to be somewhat patient and accept that the right to occupation may be temporarily restricted, as Blue Moonlight's situation in this case has already illustrated. An owner's right to use and enjoy property at common law can be limited in the process of the justice and equity enquiry…,.” [para. 40]

“The relief sought in the Occupiers' cross-appeal must therefore be considered in order not to render them homeless. The date of eviction must be linked to a date on which the City has to provide accommodation. Requiring the City to provide accommodation 14 days before the date of eviction will allow the Occupiers some time and space to be assured that the order to provide them with accommodation was complied with and to make suitable arrangements for their relocation. Although Blue Moonlight cannot be expected to be burdened with providing accommodation to the Occupiers indefinitely, a degree of patience should be reasonably expected of it and the City must be given a reasonable time to comply. The date should not follow too soon after the date of the judgment.” [para. 100]

The same considerations were further elaborated in City of Johannesburg v Changing Tides 74 (Pty) Ltd 2012 (6) SA 294 (SCA)…,.:

“Reverting then to the relationship between sections 4(7) and (8), the position can be summarised as follows;

A court hearing an application for eviction at the instance of a private person or body, owing no obligations to provide housing or achieve the gradual realisation of the right of access to housing in terms of section 26(1) of the Constitution, is faced with two separate enquiries;

(i) First, it must decide whether it is just and equitable to grant an eviction order having regard to all relevant factors.

Under section 4(7) those factors include the availability of alternative land or accommodation. The weight to be attached to that factor must be assessed in the light of the property owner's protected rights under section 25 of the Constitution, and on the footing that a limitation of those rights in favour of the occupiers will ordinarily be limited in duration. Once the court decides that there is no defence to the claim for eviction and that it would be just and equitable to grant an eviction order it is obliged to grant that order.

Before doing so, however, it must consider what justice and equity demands in relation to the date of implementation of that order and it must consider what conditions must be attached to that order.

(ii) In that second enquiry, it must consider the impact of an eviction order on the occupiers and whether they may be rendered homeless thereby or need emergency assistance to relocate elsewhere.

The order that it grants as a result of these two discrete enquiries is a single order. Accordingly, it cannot be granted until both enquiries have been undertaken and the conclusion reached that the grant of an eviction order, effective from a specified date, is just and equitable. Nor can the enquiry be concluded until the court is satisfied that it is in possession of all the information necessary to make both findings based on justice and equity.”

Ejection without Due Process or Court Order

Reverting to the situation in casu, the essence of the appellants' complaint, in the first ground of appeal, is that the court a quo failed to find that the respondents could not eject the appellants without due process and without a valid court order. This ground was not specifically motivated in argument before this Court but was not abandoned, and, therefore, remains to be dealt with and determined.

In its judgment, the court a quo was evidently alive to the need to prevent the arbitrary eviction of the appellants. The learned judge opined that “the applicants and their children must be given an opportunity for genuine consultation. Adequate notice to all those affected of the scheduled eviction, information on the proposed evictions, and the alternative purpose for which the land is required must be given”. He proceeded to find that “notice of the proposed eviction must be given within a reasonable time. The evictions must be supervised and should not be done in the terror of night. The respondents may not evict the applicants without due process of law.”

In any event, the court declined to grant the interdictory relief sought barring the respondents from ejecting the appellants from the informal settlement situated on Haydon Farm.

It should be borne in mind that the application before the court a quo was for a declarator and consequential relief having regard to the particular circumstances of the appellants' occupation of Haydon Farm. They had been given some unspecified form of notice to vacate the farm and were required to move out to enable the third respondent to carry out the construction of houses on the land. However, what was before the court was not an actual application for eviction or a counter-application to resist any claim for eviction. Thus, the court was not called upon to consider all the relevant circumstances or whether or not the requirements of due process had been complied with for the specific purpose of granting or declining an eviction order.

The criteria and considerations that I have delineated above vis-à-vis section 74 of the Constitution would only have been relevant in evaluating the right to shelter that was claimed by the appellants in terms of section 81(1)(f) of the Constitution.

This is a somewhat different inquiry…,.

In any event, it is indisputably clear that there was no application for eviction before the court a quo. The court was not called upon to evict the appellants at the behest of the respondents or anyone else. What it did was to deal with the specific application before it and to decline the declaratory and interdictory relief that was sought by the appellants. Nevertheless, in so doing, it explicitly found that the appellants must be given adequate notice of the proposed eviction and that any such eviction must be duly supervised. More emphatically, it also found, in unequivocal terms, that the respondents could not evict the appellants “without due process of law”, and, therefore, by necessary implication, without a valid court order.

It follows that the first ground of appeal in casu is entirely misconceived and misplaced. It must accordingly be dismissed.

Right of Children to Shelter

Section 81 elaborates the particular rights of children. In the portions that are relevant for present purposes, it declares that:

“(1) Every child, that is to say every boy and girl under the age of eighteen years, has the right —

(a)…,.;

(b)…,.;

(c)…,.;

(d) To family or parental care, or to appropriate care when removed from the family environment;

(e)…,.;

(f) To education, health care services, nutrition and shelter;

(g)…,.;

(h)…,.; and

(i)…,.

(2) A child's best interests are paramount in every matter concerning the child.

(3) Children are entitled to adequate protection by the courts, in particular by the High Court as their upper guardian.”

Counsel for the appellants submits that section 81 of the Constitution is distinguishable from certain other rights incorporated in the Declaration of Rights. In particular, environmental rights (section 73), the right to education (section 75), the right to health care (section 76) and the right to food and water (section 77) are all qualified by the injunction to achieve their progressive realisation within the limits of the resources available to the State. In contrast, the rights of children entrenched in section 81 are not so qualified. They are only subject to the limitations codified in section 86 of the Constitution. They must therefore be regarded as standing on their own. Furthermore, so he submits, section 81(1)(f) applies to every child irrespective of the primary parental obligation. The State is obligated to provide for the child - especially where the parents concerned are indigent.

Counsel for the first and fourth respondents does not take any issue with these submissions. She also accepts that section 81 applies whether the child in question is under parental care or is institutionalised under State care.

However, she contends that there is no obligation on the State to provide for any child under parental care. Consequently, so she submits, the primary obligation to provide shelter lies on the parents of the child concerned.

She further relies upon Government of the Republic of South Africa v Grootboom 2001 (1) SA 46 (CC) for the proposition that there is no primary obligation on the State to provide shelter. The equivalent provision in the South African Constitution, i.e. section 28(1)(c), is identical to our section 81(1)(f), and, therefore, the decision in Government of the Republic of South Africa v Grootboom 2001 (1) SA 46 (CC) should not be distinguished or departed from.

Counsel for the second respondent agrees with these submissions and adds that section 81(1)(f) only obliges the State to step in where children have not been provided for by the parents and have been institutionalised.

In the South African context, CURRIE & De WAAL: The Bill of Rights Handbook (6th ed. 2013)…, opine that the textual differences between section 28(1)(c) and sections 26 and 27 (relating to the provision of housing, health care, food, water and social security for everyone) would support the interpretation that section 28(1)(c) was intended “to impose a direct duty on the State to ensure that children must have their socio-economic rights met immediately, and that budgetary arguments cannot account for failure on the part of Government.”

This interpretation is bolstered by the decision in Governing Body of the Juma Masjid Primary School v Essay N.O. 2011 (8) BCLR 761 (CC). In that case, the court highlighted the distinctive features of the right to a basic education from the right to further education under section 29 of the South African Constitution…, as follows:

“It is important, for the purpose of this judgment, to understand the nature of the right to 'a basic education' under section 29(1)(a).

Unlike some of the other socio-economic rights, this right is immediately realisable. There is no internal limitation requiring that the right be 'progressively realised' within 'available resources' subject to 'reasonable legislative measures'. The right to a basic education, in section 29(1)(a), may be limited only in terms of a law of general application which is 'reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom'.

This right is therefore distinct from the right to 'further education' provided for in section 29(1)(b). The State is, in terms of that right, obliged, through reasonable measures, to make further education 'progressively available and accessible'.”

As regards the decision in Government of the Republic of South Africa v Grootboom 2001 (1) SA 46 (CC), CURRIE & De WAAL: The Bill of Rights Handbook (6th ed. 2013)…, observe that the effect of that decision vis-à-vis children's socio-economic rights, such as the right to housing, “underwent a positive adjustment in the TAC case.”

In that case, Minister of Health v Treatment Action Campaign 2002 (5) SA 721 (CC), the court dealt with access to treatment to avoid mother-to-child transmission of HIV/AIDS in the context of children born in public hospitals to indigent mothers. The court was called upon to interpret sections 28(1)(b) and 28(1)(c) of the South African Constitution, the equivalent of our sections 81(1)(d) and 81(1)(f), apropos the provision of basic health care services by the State and/or by parents and the family.

The court recalled its earlier judgment in Government of the Republic of South Africa v Grootboom 2001 (1) SA 46 (CC) where it was held that paras. (b) and (c) of section 28(1) must be read together so that “a child has the right to family or parental care in the first place, and the right to alternative appropriate care only where that is lacking.” The court then proceeded to qualify its earlier decision insofar as concerns the position of children born to indigent mothers who could not afford to pay for basic health care services. The obligations of the State, in that particular situation, were underscored and articulated, at paras. 76-79, as follows:

“Counsel for the Government, relying on these passages in the Grootboom judgment, submitted that section 28(1)(c) imposes an obligation on the parents of the newborn child, and not the State, to provide the child with the required basic health care services.

While the primary obligation to provide basic health care services no doubt rests on those parents who can afford to pay for such services, it was made clear in Grootboom that '[t]his does not mean…, that the State incurs no obligation in relation to children who are being cared for by their parents or families.'

The provision of a single dose of nevirapine to mother and child for the purpose of protecting the child against the transmission of HIV is, as far as the children are concerned, essential. Their needs are 'most urgent' and their inability to have access to nevirapine profoundly affects their ability to enjoy all rights to which they are entitled. Their rights are 'most in peril' as a result of the policy that has been adopted and are most affected by a rigid and inflexible policy that excludes them from having access to nevirapine.

The State is obliged to ensure that children are accorded the protection contemplated by section 28 that arises when the implementation of the right to parental or family care is lacking. Here we are concerned with children born in public hospitals and clinics to mothers who are, for the most part, indigent and unable to gain access to private medical treatment which is beyond their means. They and their children are, in the main, dependent upon the State to make health care services available to them.”

It is axiomatic that the Constitution must be interpreted in a holistic and seamless fashion. Each provision is to be interpreted, without doing violence to the actual language used, in a manner that is consistent and accords with every other relevant provision, so as to achieve the underlying purpose of those provisions. They must be construed as being mutually complementary rather than as being contradictory to one another. In short, the Constitution must be construed as a unified whole.

Reverting to section 81(1) of our Constitution, I am persuaded to adopt the more purposive approach to the inter-relationship between paragraphs (d) and (f) of section 81(1). I do not think that those paragraphs must necessarily be read so that paragraph (f) is construed as being subordinated to or diminished by paragraph (d). In other words, the obligation of the State, to provide shelter to children in need in terms of section 81(1)(f), is not contingent upon the absence of parental care or other appropriate care under section 81(1)(d). The obligation of the State in this respect is not negated or diluted by the primary duty of care ordinarily imposed upon parents.

In most situations where socio-economic normalcy is possible, where children are living with their parents, the parental duty of care must predominate so as to proportionately reduce the State's correlative obligations. However, where the parents themselves are financially or otherwise incapacitated from fulfilling their parental obligations, it then becomes incumbent upon the State to intervene and carry out its own obligation to ensure that the children's welfare is adequately addressed and safeguarded.

In my view, this interpretation is entirely concordant with the ultimate objective of section 81, viz. to secure the best interests of the child.

To conclude on this aspect, the primary duty of care reposed with parents in respect of their own children does not operate to absolutely absolve the State of its underlying obligation of care towards those children.

Best Interests of the Child

By virtue of section 81(2) of the Constitution, the best interests of the child are paramount in every matter concerning the child. With reference to the equivalent section 28(2) in the South African Constitution, CURRIE & De WAAL: The Bill of Rights Handbook (6th ed. 2013)…, make the point that this provision constitutes “a right, and not merely a guiding principle” and “in addition to being a self-standing right it also strengthens other rights.”

In this connection, the learned authors cite the case of Minister of Welfare and Population Development v Fitzpatrick 2000 (3) SA 422 (CC)…,:

“Section 28(1) is not exhaustive of children's rights. Section 28(2) requires that a child's best interests have paramount importance in every matter concerning the child. The plain meaning of the words clearly indicates that the reach of section 28(2) cannot be limited to the rights enumerated in section 28(1) and section 28(2) must be interpreted to extend beyond those provisions. It creates a right that is independent of those specified in section 28(1)….,.

…,. However, the 'best interests' standard appropriately has never been given exhaustive content in either South African law or in comparative international or foreign law. It is necessary that the standard should be flexible as individual circumstances will determine which factors secure the best interests of a particular child.”

While the best interests of the child must be treated as being paramount, they do not necessarily override other rights entrenched in the Declaration of Rights. This important rider was emphasised in De Reuk v Director of Public Prosecutions (Witswatersrand Local Division) 2004 (1) SA 406 (CC)…,:

“In the High Court judgment, the view is expressed that persons who possess materials that create a reasonable risk of harm to children forfeit the protection of the freedom of expression and privacy rights altogether, and that section 28(2) of the Constitution 'trumps' other provisions of the Bill of Rights.

I do not agree.

This would be alien to the approach adopted by this Court that constitutional rights are mutually inter-related and inter-dependent and form a single constitutional value system. This Court has held that section 28(2), like the other rights enshrined in the Bill of Rights, is subject to limitations that are reasonable and justifiable in compliance with section 36.”

The same qualified approach was adopted in Centre for Child Law v Minister of Justice and Constitutional Development 2009 (6) SA 632 (CC)…,:

“…,. The constitutional injunction that '[a] child's best interests are of paramount importance in every matter concerning the child' does not preclude sending child offenders to jail. It means that the child's interests are 'more important than anything else', but not that everything else is un-important: the entire spectrum of considerations relating to the child offender, the offence, and the interests of society may require incarceration as the last resort of punishment.”

It is also necessary to bear in mind that the paramountcy principle itself is not self-defining but generally indeterminate. It must perforce take colour from and be informed by the particular circumstances of each case, having regard to those factors that will effectively secure the best interests of the child. The intrinsic flexibility of the “best interests” provision was ably articulated in the case of State v M 2008 (3) SA 232 (CC)…,:

“Once more, one notes that the very expansiveness of the paramountcy principle creates the risk of appearing to promise everything in general while actually delivering little in particular. Thus, the concept of 'the best interests' has been attacked as inherently in-determinate, providing little guidance to those given the task of applying it….,.

These problems cannot be denied. Yet, this Court has recognised that it is precisely the contextual nature and inherent flexibility of section 28 that constitutes the source of its strength….,.

Viewed in this light, indeterminacy of outcome is not a weakness. A truly principled child-centred approach requires a close and individualised examination of the precise real-life situation of the particular child involved. To apply a pre-determined formula for the sake of certainty, irrespective of the circumstances, would in fact be contrary to the best interests of the child concerned.”

The decision in State v M 2008 (3) SA 232 (CC) also highlights the point that the paramountcy principle, although seemingly emphatic and unfettered, is not absolute but subject to reasonable limitation. As was appositely observed, at paras. 25 and 26:

“A more difficult problem is to establish an appropriate operational thrust for the paramountcy principle. The word 'paramount' is emphatic. Coupled with the far-reaching phrase 'in every matter concerning the child', and taken literally, it would cover virtually all laws and all forms of public action, since very few measures would not have a direct or indirect impact on children, and thereby concern them. Similarly, a vast range of private actions will have some consequences for children.

This cannot mean that the direct or indirect impact of a measure or action on children must, in all cases, oust or override all other considerations. If the paramountcy principle is spread too thin it risks being transformed from an effective instrument of child protection into an empty rhetorical phrase of weak application thereby defeating rather than promoting the objective of section 28(2).

The problem, then, is how to apply the paramountcy principle in a meaningful way without unduly obliterating other valuable and constitutionally-protected interests.

This Court, far from holding that section 28 acts as an overbearing and unrealistic trump of other rights, has declared that the best interests injunction is capable of limitation….,. Accordingly, the fact that the best interests of the child are paramount does not mean that they are absolute. Like all rights in the Bill of Rights their operation has to take account of their relationship to other rights which might require that their ambit be limited.”

SC94-20 : ZIMBABWE HOMELESS PEOPLE'S FEDERATION and OTHERS vs MINISTER OF LOCAL GOVERNMENT AND NATIONAL HOUSING and ZVIMBA RURAL DISTRICT COUNCIL and LEENGATE PL and MINISTER OF LANDS
Ruled By: PATEL JA, MAVANGIRA JA and MATHONSI JA

Reasonable Limitations and Reasonable MeasuresSection 86 of our Constitution prescribes the manner in and extent to which fundamental human rights and freedoms may be subjected to limitation or derogated from. Section 86(1) stipulates that rights and freedoms “must be exercised reasonably and with due regard for the rights and freedoms ...

Reasonable Limitations and Reasonable Measures

Section 86 of our Constitution prescribes the manner in and extent to which fundamental human rights and freedoms may be subjected to limitation or derogated from. Section 86(1) stipulates that rights and freedoms “must be exercised reasonably and with due regard for the rights and freedoms of other persons.”

Section 86(2) states that rights and freedoms “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.” Section 86(2) also delineates the relevant factors that are to be taken into account in determining the fairness, reasonableness, necessity, and justifiability of any such limitation. The list of these relevant factors is not exhaustive.

Additionally, section 86(3) enumerates those rights enshrined in Chapter 4 that may not be limited by any law or violated by any person.

The right of access to housing or shelter is not specifically included in the rights so enumerated.

Counsel for the appellants, relying on Government of the Republic of South Africa v Grootboom 2001 (1) SA 46 (CC), submits that socio-economic rights generally are justiciable and that the State must formulate and implement reasonable policies and programmes to achieve those rights in accordance with section 19 of the Constitution.

The response of the State, in casu, is to deny its obligations and its attitude is cavalier and unacceptable.

It has simply asked the appellants “to join the queue for land” - even though they have been settled on Haydon Farm since 2000 in tandem with the Land Reform Programme.

The draft order prayed for by the appellants is designed to achieve the progressive realization of the appellants' right to shelter.

Counsel for the first and fourth respondents contends that the appellants are not entitled to the relief that they seek. They are illegal settlers and their actions cannot be sanitised. They should, like any other citizen seeking shelter, apply to the relevant authorities to be allotted other land for their settlement. She further argues that, if the appellants are poor and cannot provide shelter for themselves, the children will be institutionalised and the State will take over and provide for their welfare.

When questioned by the Court, counsel for the first and fourth respondents reluctantly conceded that it would be preferable to leave children with their parents as this option would be more practicable and less costly for the State.

Counsel for the appellants, in his replying submissions, also agreed that children should not be taken away from their family and parents and that it would clearly be more expensive for the State to institutionalise children. Furthermore, to remove children from their family would be socially damaging and give rise to their proclivity towards crime and violence.

Section 25 of the Constitution enjoins the State and its institutions and agencies, inter alia, “to protect and foster the institution of the family.”

The National Objectives pertaining to children are captured in section 19 of the Constitution.

In particular, section 19(1) calls upon the State to “adopt policies and measures to ensure that, in matters relating to children, the best interests of the children are paramount.” More specifically, section 19(2)(b) requires the State to “adopt reasonable policies and measures, within the limits of the resources available to it, to ensure that children…, have shelter and basic nutrition, health care, and social services.”

The obligation of the State, to adopt reasonable policies and measures subject to the limitation of available resources, was extensively canvassed in Government of the Republic of South Africa v Grootboom 2001 (1) SA 46 (CC) in considering the right of access to adequate housing. It is instructive to highlight the principal observations of the court in that case, at paras. 41-44:

“The measures must establish a coherent public housing programme directed towards the progressive realisation of the right of access to adequate housing within the State's available means. The programme must be capable of facilitating the realization of the right. The precise contours and content of the measures to be adopted are primarily a matter for the legislature and the executive. They must, however, ensure that the measures they adopt are reasonable….,.

It is necessary to recognise that a wide range of possible measures could be adopted by the State to meet its obligations. Many of these would meet the requirement of reasonableness. Once it is shown that the measures do so, this requirement is met.

The State is required to take reasonable legislative and other measures. Legislative measures by themselves are not likely to constitute constitutional compliance. Mere legislation is not enough. The State is obliged to act to achieve the intended result, and the legislative measures will invariably have to be supported by appropriate, well-directed, policies and programmes implemented by the executive…,.

An otherwise reasonable programme that is not implemented reasonably will not constitute compliance with the State's obligations.

In determining whether a set of measures is reasonable, it will be necessary to consider housing problems in their social, economic and historical context and to consider the capacity of institutions responsible for implementing the programme. The programme must be balanced and flexible and make appropriate provision for attention to housing crises and to short, medium, and long term needs. A programme that excludes a significant segment of society cannot be said to be reasonable. Conditions do not remain static, and, therefore, the programme will require continuous review.

…,. To be reasonable, measures cannot leave out of account the degree and extent of the denial of the right they endeavour to realize. Those whose needs are the most urgent, and whose ability to enjoy all rights therefore is most in peril, must not be ignored by the measures aimed at achieving realisation of the right. It may not be sufficient to meet the test of reasonableness to show that the measures are capable of achieving a statistical advance in the realization of the right.

Furthermore, the Constitution requires that everyone must be treated with care and concern. If the measures, though statistically successful, fail to respond to the needs of those most desperate, they may not pass the test.”

The court proceeded to examine the reasonableness of the measures adopted by the State.

It noted that the housing programme in question was not haphazard but represented a systematic response to a pressing social need by seeking to build a large number of houses for those in need of better housing. Furthermore, appropriate legislative measures had been undertaken at both the national and provincial levels, through the Housing Act, so as to produce a workable legislative framework for the delivery of houses nationally [paras. 54 and 55].

Nevertheless, the court questioned, and found lacking, the adequacy of the national housing programme in relation to those in desperate need of shelter. The sentiments of the court, at paras. 56-69, are particularly germane to the circumstances in casu:

“This Court must decide whether the nationwide housing programme is sufficiently flexible to respond to those in desperate need in our society and to cater appropriately for immediate and short-term requirements. This must be done in the context of the scope of the housing problem that must be addressed….,.” [para. 56]

“Section 26 requires that the legislative and other measures adopted by the State are reasonable. To determine whether the nationwide housing programme, as applied in the Cape Metro, is reasonable within the meaning of the section, one must consider whether the absence of a component catering for those in desperate need is reasonable in the circumstances….,.” [para. 63]

“…,. The housing development policy, as set out in the Act, is in itself laudable. It has medium and long term objectives that cannot be criticised. But, the question is whether a housing programme that leaves out of account the immediate amelioration of the circumstances of those in crisis can meet the test of reasonableness established by the section.” [para. 64]

“…,. The desperate will be consigned to their fate for the foreseeable future unless some temporary measures exist as an integral part of the nationwide housing programme. Housing authorities are understandably unable to say when housing will become available to these desperate people. The result is that people in desperate need are left without any form of assistance with no end in sight…,.” [para. 65]

“…,. The nationwide housing programme falls short of obligations imposed upon national Government to the extent that it fails to recognise that the State must provide for relief for those in desperate need. They are not to be ignored in the interests of an overall programme focused on medium and long-term objectives….,.” [para. 66]

“In conclusion, it has been established in this case that as of the date of the launch of this application, the State was not meeting the obligation imposed upon it by section 26(2) of the Constitution in the area of the Cape Metro. In particular, the programmes adopted by the State fell short of the requirements of section 26(2) in that no provision was made for relief to the categories of people in desperate need identified earlier….,.” [para. 69]

The related question that arises in the context of the broader realization of the right to housing is whether it is always unreasonable to order the eviction and relocation of persons, even if this would entail their temporary or short-term homelessness.

Approximately nine years after Government of the Republic of South Africa v Grootboom 2001 (1) SA 46 (CC), in the case of Residents of Joe Slovo Community, Western Cape v Thubelisha Homes 2010 (3) SA 454 (CC), this question was answered in the negative. It was held, at paras. 115 and 116:

“The applicants are being evicted and relocated in order to facilitate housing development. In the circumstances, their eviction constitutes a measure to ensure the progressive realisation of the right to housing within the meaning of section 26(2) of the Constitution….,.

Eviction is a reasonable measure to facilitate the housing development programme. In addition, all the factors discussed in relation to the question whether it is just and equitable to grant the eviction order also justify a conclusion that the eviction is, in the circumstances, reasonable.”

This decision brings to the fore the perennial tension between the rights of the community at large and those of its less privileged segments.

While it is always desirable to reconcile and accommodate the interests of all sections of the community, this may not always be realistic or practicable. Each unique situation must be considered on its own peculiarities and subjected to the governing test of reasonableness, regarded as between groups or individuals and as between the State and its citizens. Ultimately, the criterion of flexibility in balancing competing interests comes into play so as to determine whether or not it is just and equitable to order the eviction of the persons concerned in all the relevant circumstances of the case.

Appropriate Relief

In the particular context of eviction, I have already observed that the eviction of people living in informal settlements may take place, even if this results in the loss of their homes. See Port Elizabeth Municipality v Various Occupiers 2005 (1) SA 217 (CC)…,. Nevertheless, it remains imperative in that situation that eviction and relocation should take place in conformity with justice and equity. This was emphasised in Joe Slovo Community, Western Cape v Thubelisha Homes 2010 (3) SA 454 (CC)…,:

“I have come to the conclusion that, provided that the order for the eviction and relocation of the applicants makes appropriate provision for the safe, dignified, and humane relocation of all the people involved, the eviction and relocation of the applicants will be in accordance with justice and equity. I would propose an order that would, as far as possible, achieve this.”

Section 175(6)(b) of our Constitution empowers every court, “when deciding a constitutional matter within its jurisdiction”, to “make any order that is just and equitable.”

In framing an appropriate order that is just and equitable, the courts are at large to take into account all the relevant circumstances of the case, including the nature of the right infringed and the nature of the infringement. Moreover, whilst being attuned and sensitive to the doctrine of separation of powers, they should be astute not to be unduly constrained or intimidated by considerations of Governmental policy.

This was emphatically spelt out in Minister of Health v Treatment Action Campaign 2002 (5) SA 721 (CC)…,:

“This Court has made it clear, on more than one occasion, that, although there are no bright lines that separate the roles of the legislature, the executive, and the courts from one another, there are certain matters that are pre-eminently within the domain of one or other of the arms of Government and not the others. All arms of Government should be sensitive to and respect this separation. This does not mean, however, that courts cannot or should not make orders that have an impact on policy.” [para. 98]

“…,. Where State policy is challenged as inconsistent with the Constitution, courts have to consider whether, in formulating and implementing such policy, the State has given effect to its constitutional obligations. If it should hold in any given case that the State has failed to do so, it is obliged, by the Constitution, to say so. In so far as that constitutes an intrusion into the domain of the executive, that is an intrusion mandated by the Constitution itself….,.

Even simple declaratory orders against Government or organs of State can affect their policy and may well have budgetary implications. Government is constitutionally bound to give effect to such orders whether or not they affect its policy and has to find the resources to do so….,.” [para. 99]

“…,. Section 38 of the Constitution contemplates that where it is established that a right in the Bill of Rights has been infringed a court will grant 'appropriate relief'. It has wide powers to do so, and, in addition to the declaration that it is obliged to make in terms of section 172(1)(a), a court may also 'make any order that is just and equitable.'” [para. 101]

“We thus reject the argument that the only power that this Court has in the present case is to issue a declaratory order. Where a breach of any right has taken place, including a socio-economic right, a court is under a duty to ensure that effective relief is granted. The nature of the right infringed and the nature of the infringement will provide guidance as to the appropriate relief in a particular case. Where necessary, this may include both the issuing of a mandamus and the exercise of supervisory jurisdiction.” [para.106]

“What this brief survey makes clear is that in none of the jurisdictions surveyed is there any suggestion that the granting of injunctive relief breaches the separation of powers. The various courts adopt different attitudes to when such remedies should be granted, but, all accept that within the separation of powers they have the power to make use of such remedies – particularly when the State's obligations are not performed diligently and without delay.” [para. 112]

Analysis of Judgment A Quo

It is necessary to set out the approach adopted by the court a quo in its interpretation of section 81(1)(f) of the Constitution and its application to the circumstances before the court. The learned judge held as follows:

“Section 81(1)(f) creates the right to shelter but does not create an absolute, independent, and separate justiciable right to shelter for children. Section 81(1)(f) does not place a primary obligation on the State and its agents to provide shelter to children who are in the care of their parents on demand….,.

The State is obliged to take reasonable legislative and other measures within the resources available to it to ensure progressive realisation of the right and ensure that children enjoy parental care….,. The parents have a primary obligation to ensure that their children have shelter. The children are not in the care of the State nor have they been removed from their parents. These children are different from those who are in the care of State institutions who are the primary responsibility of the State and hence there is no primary obligation on the State to provide them with shelter.

All the State is required to do is to create an enabling environment by putting in place a legislative framework, and other measures, for parents to ensure that they are able to provide their children with shelter. Section 81(1)(f) does not create an absolute right to shelter for children.”

The gravamen of these findings is twofold;

(a) The first is the proposition that section 81(1)(f) of the Constitution does create a right of shelter for children but not one that is absolute, independent and justiciable, and, by implication, not one that is legally enforceable.

(b) The second is the conclusion that section 81(1)f) does not place any primary obligation on the State to provide shelter for children who are in the care of their parents. In that situation, the State is enjoined to take reasonable legislative and other measures, which are to be progressively realized, so as to enable parents to provide their children with shelter.

I take the view, with great respect, that the first proposition is contradictory and questionable, albeit not in its entirety, and that the second cannot be sustained on a proper purposive construction of section 81, taken as a whole and as read with other relevant provisions of the Constitution.

As I have endeavoured to demonstrate earlier, the paramountcy principle enunciated in section 81(2) of the Constitution is conceived to secure the best interests of the child. It is a self-standing, independent right and operates to fortify the rights entrenched in section 81(1).

However, the best interests of the child do not necessarily override or trump other rights and interests.

The concept of “best interests” is an indeterminate and flexible one that must take its shape and content from the particular circumstances of each given case. To this extent, it is correct to take the view that the paramountcy principle embodied in section 81(2) as well as the right to shelter guaranteed by section 81(1)(f) are not unfettered or absolute but are subject to reasonable qualification and limitation where this is necessary and justified.

Nevertheless, although the parameters of the rights set out in section 81(1)(f) may not necessarily be unlimited, I have no doubt in my mind that they are justiciable.

Section 81 appears in Part 3 of the Declaration of Rights. That part is designed to elaborate the rights particularised in their application to certain classes, including children, so as to configure them with greater certitude. In addition, the right to shelter conferred upon children by section 81(1)(f) is further enhanced by section 19(2)(b) of the Constitution. The latter provision enjoins the State to adopt reasonable policies and measures, within the limits of available resources, to ensure that children have shelter. As I have already concluded earlier, it is incontrovertibly clear that the right to shelter for children, as entrenched in section 81(1)(f), and as bolstered by section 19(2)(b), is eminently justiciable and legally enforceable.

The more problematic area of concern relates to the respective roles of the State and parents vis-à-vis children who are under parental or familial care.

In this situation, there can be no doubt that the primary duty to afford shelter to children reposes in their parents. The obligation of the State, in this context, is probably best described as being essentially secondary and supportive in nature, to wit, to assist parents in the provision of shelter and nutrition to their children. However, as was acknowledged even in Government of the Republic of South Africa v Grootboom 2001 (1) SA 46 (CC), this does not mean that the State incurs no obligation in relation to children under the care of their parents or families.

In my view, in certain circumstances, section 81(1)(f) may be invoked to impose a direct duty on the State, despite budgetary or other material constraints. This duty was unreservedly recognised in Minister of Health v Treatment Action Campaign 2002 (5) SA 721 (CC) as regards the provision of urgent and essential health care for children born in public hospitals and clinics to mothers who are mostly indigent.

I fully endorse the rationale of that decision and would cautiously extend it beyond incapacity due to penury to that arising from any other insuperable disability.

The direct duty of the State towards children under parental care is also affirmed in the two international instruments that I have adverted to earlier, viz. the United Nations Convention on the Rights of the Child (1989) and the African Charter on the Rights and Welfare of the Child (1990). Zimbabwe is a party to both of these instruments, and, consequently, our courts are constitutionally bound to take them into account in interpreting the Declaration of Rights.

Both instruments recognise that the primary responsibility to secure the conditions of living necessary for the development of children lies on their parents. At the same time, however, they also declare that member States are obligated to take appropriate measures to assist parents, and provide material assistance and support programmes in cases of need, as regards nutrition, clothing, and housing.

To conclude on this aspect, the obligations of the State, in terms of section 81(1)(f), are not contingent upon the absence of parental or familial care. Those obligations are not counterposed but complementary to the primary duty of parental care envisaged in section 81(1)(d). In particular, the State must fulfil its own obligation to provide shelter to children whose parents are financially or otherwise incapacitated from fulfilling their parental obligations.

In short, the primary duty of parental care does not absolve the State of its direct obligation to secure and provide for the best interests of the child.

In arriving at its decision to dismiss the application before it, the court a quo reasoned as follows;

(i) Firstly, the appellants had no legal right to be on the land, having settled there illegally without any lease, permit or offer of the land concerned. In short, their stay on the land had not been regularised.

(ii) Secondly, the respondents had other plans for the land and the appellants could not demand alternative land as a condition to vacate Haydon Farm. The court could not compel the respondents to allocate land to the appellants as that was a function that was purely in the domain of the State.

(iii) Thirdly, the appellants could not insist on being allocated land in an urban setting. Section 81(1)(f) of the Constitution did not impose on the State an obligation to provide housing, land, or shelter to anyone on demand.

(iv) Finally, the court found that the respondents were pursuing a legitimate aim. The development of the area was necessary for urban development and expansion in a properly planned and orderly fashion. There was a pressing social need for housing and urban development. The interference with the appellants' occupation of the land was in the general public interest and was for a good cause.

In the event, the court concluded that the forced eviction of the appellants was justified.

I fully appreciate that in making the above findings the court a quo was engaged in the process of exercising its discretion in the matter.

It is also trite that an Appellate Court will not interfere with the exercise of judicial discretion by a lower court unless that court is found to have proceeded on some material mis-appreciation or mis-application of the law and/or the facts or where it has relied on some extraneous or irrelevant consideration or has failed to take into account some particularly relevant matter.

In casu, I am of the considered view that the learned judge a quo critically misdirected herself in the following respects;

(a) First and foremost, any proper analysis of a matter involving the possible eviction of persons necessitates, apart from the purely procedural requirement of a court order, a detailed and substantive consideration of all the relevant circumstances.

As was elaborated in Zuze v Trustees of Mlambo & Anor SC69-19…, this entails a balancing exercise between the rights and interests of all the parties involved in or affected by the eviction dispute. This would include not only the prospective evictees and the landowner but also the State and its agents and institutions.

(b) Secondly, and in any event, as was emphasised in Zuze v Trustees of Mlambo & Anor SC69-19…, the ambit of the protection accorded against arbitrary eviction is not confined to strictly legal occupants of the land or property concerned. Additionally, the rights of the landowner, whether public or private, may have to be temporarily circumscribed so as to obviate the possibility of homelessness. And, if that is found to be impracticable, the State or relevant local authority may have to be imposed upon in order to temporarily accommodate the evictees.

In casu, the court a quo appears to have concentrated on the rights and interests of the respondents and the fact that they were pursuing the legitimate aim of urban development to address the pressing social need for housing and urban development.

While these considerations are very laudable, there is very little on record, apart from bald and sketchy assertions, to substantiate the supposed housing development programme and the pressing social need therefor.

More significantly, the court paid minimal regard to the rights and interests of the appellants themselves. It focused, instead, quite erroneously, on the illegality of their occupation and their failure to regularise the same. It pointedly failed to take into account the facts that the appellants did not have the luxury of any alternative accommodation and that the minor appellants have been attending school in the informal settlement. It also disregarded the significant and critical reality that the appellants had been in occupation of their permanent homes on the farm since the year 2000, until those homes were demolished in 2005, and have since occupied their impermanent homes thereafter. Lastly, but equally importantly, the court did not consider possible alternative measures that could have been taken by the respondents to accommodate the appellants elsewhere, either temporarily or permanently. It simply chose to distance itself from the appellants' predicament and consigned them to the ravages of impending homelessness.

Disposition

To conclude, I take the view that the court a quo erred in failing to correctly evaluate and apply the considerations calling for determination under section 74 of the Constitution apropos the potential eviction of any person from his or her home. The court further erred in its interpretation of section 81(1)(f) of the Constitution and consequently failed to appreciate the proper scope and extent of the right to shelter conferred upon children in terms of that provision.

It follows that the appeal must succeed, in the main, in respect of the second, third and fifth grounds of appeal. The first ground of appeal, as I have already concluded, is un-meritorious and is therefore dismissed.

The fourth ground of appeal invokes section 81(5) of the Constitution, a manifestly non-existent provision, and is obviously quite superfluous. It is accordingly struck out.

What remains is to formulate the appropriate relief that should be granted in favour of the appellants. In that regard, it seems useful to restate the principles that should guide this Court in framing an order that is just and equitable in the circumstances of this case.

As is expressly enjoined by the Constitution, fundamental rights and freedoms must be exercised reasonably and with due regard for the rights and freedoms of others. In this respect, it is imperative not to lose sight of the rights and interests of the respondents. Consequently, they cannot be called upon to adopt much more than reasonable policies and measures, within the limits of the resources available to them, to secure the rights and interests of the appellants.

In any event, it must be borne in mind that the appellants are relatively destitute and in desperate need of shelter. Moreover, in furtherance of the institution of the family, in conformity with section 25 of the Constitution, it would be more practicable and preferable for the minor appellants to stay with their parents instead of being institutionalised under State care.

Ultimately, as I have stated earlier, it is necessary to apply the pivotal criteria of reasonableness and flexibility in balancing competing interests so as to arrive at an appropriate order that is just and equitable having regard to all the relevant circumstances of this case.

The draft order prayed for in casu has three distinct components;

(i) The first is an interdict against eviction from the informal settlement on Haydon Farm.

(ii) The second is a dectaratur, relative to the right of children to shelter.

Both of these prayers, with appropriate modifications, are quite compatible with the rationes decidendi expounded in this judgment.

The more problematic component is the substantive relief that is sought by the appellants.

(iii) The principal prayer in this respect is that the first and fourth respondents be ordered to set up a joint committee, inclusive of the appellants, to allocate serviced residential Stands to the appellants on the informal settlement presently occupied by them, and, thereafter, within a period of 12 months, to construct minimum core houses on such Stands for and on behalf of the appellants.

In the alternative, the first respondent is to be ordered to provide alternative land on which it must allocate residential Stands in compliance with the abovementioned undertakings and specifications.

Apart from the logistical minutiae involved in the delivery of what the appellants seek, there is a glaring paucity of factual data on record as to the larger elements of the relief prayed for. This relates, inter alia, to the relevant development plans, cost implications, and scope of coverage of the works envisaged.

One assumes that there might be in existence specific development plans, possibly incorporating some form of housing programme, not only for Haydon Farm but also in respect of the Zvimba Rural District Council area as a whole.

The second element is equally critical in assessing the budgetary and financial capacities of the first, second, and fourth respondents, qua institutions of the State, to provide the requisite land, infrastructure, and building material.

Lastly, one cannot discount the probability that there are other destitute families and children in need of shelter, both on Haydon Farm and within the District area. It would be highly remiss and unreasonable to selectively focus on the appellants' needs without having regard to the housing needs of other persons in the area who are similarly situated. All of these larger elements are issues that should have been properly raised and thereafter thoroughly canvassed and ventilated in the proceedings a quo.

In my considered opinion, without this larger picture, this Court is not in any informed position to command the first, second, and fourth respondents to comply with their underlying constitutional obligations in terms of sections 19(2)(b) and 28 of the Constitution, viz. to adopt and take reasonable measures, within the limits of the resources available to them, to ensure that the appellants have access to adequate shelter.

In short, the Court is critically hamstrung in its ability to afford the particular substantive relief that is craved by the appellants.

On the other hand, as I have already stated, they remain entitled to the more specific declaratory and interdictory relief that they seek. As regards the latter, it may be necessary to add a further injunction to secure their stay on Haydon Farm against any interference with their homes and agricultural activities for the duration of their stay on the farm.

The grant of the aforestated relief affords to the appellants the requisite respite in the short term against the possibility of being rendered homeless in the immediate future. However, it does not address their housing situation thereafter. Equally importantly, it does not concretize the precise scope and nature of the respondents' obligations in casu, nor does it take into account or resolve their long term developmental concerns in respect of Haydon Farm.

These are matters which, as I have already stated, should have been thoroughly and meaningfully addressed a quo but remain unresolved at this stage.

In the event, it seems to me that the most judicious way forward is to remit this matter to the court a quo to enable it to fully adjudicate and definitively determine these outstanding issues. In this respect, it will be necessary for all the parties to present the requisite additional evidence in such form and manner as the court a quo may direct as being best suited to achieve that purpose.

Without attempting in any way to be exhaustive, I consider that the principal issues that should be canvassed and determined in the proceedings a quo would be the following:

(i) The specific housing requirements to adequately accommodate the appellants;

(ii) The material and financial resources available to the appellants themselves;

(iii) The possibility of voluntary or assisted relocation of the appellants to a different locality;

(iv) The availability of temporary accommodation elsewhere pending the provision of permanent housing;

(v) The requisite material and financial resources allocated for housing development purposes that may have been budgeted for and are available to the first, second, and fourth respondents;

(vi) The technical and financial implications for the third respondent of modifying or delaying the housing development project in question.

As for costs, I see no compelling reason to deviate from the usual path that costs should follow the cause. The appellants, having succeeded in the main, are entitled to their costs on the ordinary scale.

It is accordingly ordered that:

1. The appeal is partially allowed with costs.

2. The judgment of the court a quo is set aside.

3. It is declared that the right of children to shelter, enshrined in section 81(1)(f) of the Constitution, is justiciable and enforceable as an independent right of all children, including children under parental care, subject to reasonable qualification and limitation where necessary and justified.

4. The matter is remitted to the court a quo to determine, following the adduction of further evidence by the parties, and having regard to the principles and guidelines set out in this judgment, the respective obligations of the respondents as regards the rights and interests of the appellants, subject to such reasonable qualifications and limitations as may be necessary and justified in the circumstances of this case.

5. Pending the final determination of the court a quo, pursuant to paragraph 4 above, the respondents and all those claiming authority through them be and are hereby interdicted from ejecting the appellants from the New Park Farm informal settlement situated on Haydon Farm, Old Mazowe Road, Mt.Hampden, Harare, or from interfering in any way with the homes and agricultural activities of the applicants within that informal settlement.

SC105-20 : CHRISTMAS MAZARIRE vs THE RETRENCHMENT BOARD and OLD MUTUAL SHARED SERVICES (PVT) LTD
Ruled By: MAKARAU JA, GOWORA JA and HLATSHWAYO JA

On 12 October 2015, the first respondent declined jurisdiction to quantify the appellant's retrenchment package upon the termination of his employment with the second respondent.

Aggrieved by the decision, the appellant brought a review application before the Labour Court, seeking among other relief, to have the first respondent's decision set aside. He was unsuccessful.

This is an appeal against the entire judgment of the Labour Court handed down on 4 November 2016 dismissing, with costs, the application for review.

Background Facts

The appellant was employed by the second respondent as General Manager (Risk). By letter dated 6 March 2014, the second respondent advised the appellant of its intention to terminate his services by way of retrenchment. The termination of services was to be effective on 31 March 2014.

A dispute arose between the parties as to the package payable to the appellant upon retrenchment. On 3 April 2014, the second respondent referred the dispute to the first respondent.

The first respondent heard the referral on 26 June 2014. It declined to determine the matter which it referred back to the employer, the second respondent. The first respondent's reasons for declining jurisdiction and referring the dispute back to the employer are not on record. They are not necessary for the determination of this appeal.

Subsequently, the second respondent issued the appellant with a “notice to retrench” after reinstating his salary in full. The dispute relating to the package payable to the appellant upon retrenchment remained unresolved and was referred back to the first respondent. Through a process that has not been fully explained in the papers filed of record, the matter was escalated to and was resolved by the Minister of Public Service, Labour and Social Welfare who, on 2 March 2015, authorised the second respondent to retrench the appellant. It is common cause that before approving the retrenchment of the appellant, the Minister received recommendations from the first respondent.

It is further common cause that the appellant's retrenchment was approved on condition the second respondent paid a gratuity equivalent to one month's salary for every year of service, a stabilisation allowance equivalent to two month's salary and a severance payment equivalent to 13,5 month's salary.

In implementing the retrenchment, the second respondent used the appellant's pensionable salary to quantify the total package payable. This dissatisfied the appellant who contended that the second respondent ought to have used his total guaranteed monthly salary as the basis of the quantification. He referred the matter back to the first respondent, seeking determination of the dispute as to what would constitute an accurate computation of his package.

This referral would constitute the third referral of the dispute to the first respondent.

The first respondent did not set the matter down for hearing. In a letter addressed to the parties, and dated 12 October 2015, it declined jurisdiction in the following terms:

“Kindly be advised that the Retrenchment Board has no jurisdiction over disputes arising from terms and conditions of employment. Please refer the matter to a labour officer as per section 93 of the Labour Act Chapter 28.01.”

Contending that the first respondent had acted irregularly in abdication of its statutory duty by declining jurisdiction in the matter, the appellant filed an application for review in the court a quo. As indicated above, the court a quo dismissed the application with an appropriate order of costs.

The proceedings a quo

In his application for review, the appellant alleged that the first respondent had acted irregularly in, inter alia, declining jurisdiction in the matter when the statute setting it up empowered it to act as requested. It was his argument that the issue of the correct formula to be used in computing his retrenchment package had remained undetermined notwithstanding that it was one of the deadlocked positions that had been referred to the first respondent in March 2015 before the Minister approved the appellant's retrenchment. It was his further contention that the first respondent had irregularly and incompetently directed that the dispute be referred to a Labour Officer, who, in the circumstances of the matter, had no jurisdiction over the retrenchment of the appellant.

The first respondent did not oppose the application.

The second respondent did.

It contended that the first respondent was correct in declining jurisdiction in the matter. In the main, and against the main thrust of the appellant's contentions, it contended that once the first respondent had made its recommendations to the Minister, on the retrenchment package, it became functus, having discharged its statutory duties. It further argued that the decision to retrench was ultimately that of the Minister, and, if the appellant was unhappy with the implementation of the Minister's decision, his relief lay in appealing against or bringing that decision on review.

After finding that the grievance by the appellant was against the Minister, who made the final computation of the retrenchment package, the court dismissed the application for review with an appropriate order of costs.

Aggrieved by that decision the appellant noted this appeal.

The Appeal

The appellant raised two grounds of appeal as follows:

1. The court a quo grossly erred and misdirected itself on the facts and the law by failing to determine whether or not the first respondent's decision to decline jurisdiction was proper.

2. The court a quo erred on a point of law and further grossly erred and misdirected itself on the facts which error amounts to an error of law by dismissing the appellant's application for review, inter alia, on the following grounds:

“(a) That the Minister had made '…, the final computation of the package…,' on the recommendations of the first respondent, hence, it was the Minister's decision which should have been challenged;

(b) That the decision which the applicant is not happy with is that of the Minister when it is common cause that the appellant was not happy with the second respondent's unilateral interpretation of the word 'salary' and upon representations thereto, the first respondent declined jurisdiction.”

The issue that arises in this appeal is, therefore, whether the court a quo erred in failing to determine the issue that was before it, or, alternatively, in determining the issue after misdirecting itself on the facts.

The Law

It is a settled position at law that failure to determine a material issue that is before the court is a gross irregularity that vitiates the decision made.

The broad position of the law was recognised by UCHENA JA in Nzara and Ors v Kashumba and Ors SC18-18 where he had this to say:

“A court is not entitled to determine a dispute placed before it, wholly based on its own discretion, which is not supported by the issues and facts of the case. It is required to apply the law to the facts and issues placed before it by the parties.”

Thus, the general and trite position of the law, that requires no further debate, is that a court cannot go on a frolic of its own and determine the dispute before it by raising its own issues or facts and resolving the dispute on such.

Looking at the basic role of the court from a slightly different angle, GOWORA JA, in PG Industries v Bvekerwa SC53-16, observed that:

“The position is settled that where there is a dispute on a question, be it a question of fact or point of law, there must be a judicial decision on the issue in dispute. The failure to resolve the dispute vitiates the order given at the end of the proceedings.”

Whilst GOWORA JA, in PG Industries v Bvekerwa SC53-16, was dealing with a case where the lower court had failed to deal with a preliminary issue that arose in the matter before it, the position still holds that even where there is a sole issue to be determined and the court does not determine that issue, but focuses on irrelevant or incorrect issues, the failure to deal with the correct issue is fatal to the proceedings.

There are a number of other legal principles that converge to discourage a court from going on a frolic of its own and determining a matter on an issue that is not raised by the parties in their papers and arguments. These include the duty of the court, where it is of the view that a certain factual or legal position is dispositive of the matter before it, to invite the parties to address it on the point before resolving the dispute wholly or partly on the point. A detailed discussion of this and other principles is not necessary in this appeal as there was no dispute as to the applicable law.

Analysis

As stated above, the issue before the court was whether the refusal by the first respondent to exercise jurisdiction in the third referral of the dispute to it by the appellant was irregularly made.

A reading of the judgment a quo indicates that the court appears to have laboured under the erroneous understanding that the review before it related to the second referral of the matter to the first respondent, which led to the Minister of Public Service, Labour and Social Welfare Minister stepping in and approving the retrenchment of the appellant on 2 March 2015. This appears from the passage in the judgment a quo containing the ratio of the decision, which reads:

“Page 154-155 of the record shows that the Minister eventually made a decision after the Retrenchment Board recommendation. Section 12(8) of the Labour Act states that even where the Board fails to make a recommendation, the Minister can still get relevant documentation and still make a decision. In this case, it is the Minister who made the decision after recommendations from the Board. It is this court's view that the grievance in this case is against the Minister who made the final computation of the package…,. The Minister made the decision and thus the complaint should be raised against the Minister and not the Board which merely made recommendations.”…,.

With respect, the decision of the first respondent that was under the spotlight was not on the second referral of the matter in March 2014 but on the third referral, which decision was communicated to the parties on 12 October 2015.

I note that the court a quo does not, at any stage, advert to this decision in its judgment.

Having made this first error, the court a quo fell into the second and more serious error which vitiates its decision. It formulated its own issues for determination.

(a) Firstly, it formed the view that the issue before it was “the computation of the retrenchment package” due to the appellant.

Whilst the computation of the package was at the centre of the dispute between the parties, it was not the immediate issue that fell to be determined in the review application a quo. As indicated above, the immediate issue to be determined was whether the second denial of jurisdiction by the first respondent over the matter was properly arrived at.

(b) Secondly, and as building up to its ratio, the court a quo raised and determined an issue that was not an issue for the parties.

It made a finding that the final package had been computed by the Minister. This finding was against the common position of both parties. It was common cause that the computation of the package had been done by the second respondent and not by the Minister. Therefore, the identity of who made the final computation of the appellant's retirement package was not in issue and was therefore not a point on which a finding by the court was necessary.

I further note, in passing, that had the court a quo canvassed with counsel its view of the turning point in the application for review and the facts which it thought were in dispute between the parties, an eminently prudent practice for any court, this appeal may have been obviated.

However, this was not so.

I find merit in the appellant's grounds of appeal. The court a quo failed to determine the issue that was before it. It raised its own and gravely misconstrued the facts giving rise to the dispute in resolving the issue it had raised for itself.

Disposition

Having fallen into error in not only formulating the incorrect issue for its determination but in basing its decision on incorrect facts, the decision of the court a quo cannot stand. It must be set aside and the matter remitted for fresh determination.

Costs of this appeal will follow the cause. I see no reason for departing from this general position in this appeal.

In the result, I make the following order:

1. The appeal is allowed with costs.

2. The decision of the court a quo is set aside.

3. The matter is remitted to the court a quo for determination de novo.

SC58-19 : COMPETITION AND TARIFF COMMISSION vs IWAYAFRICA ZIMBABWE (PRIVATE) LIMITED
Ruled By: GWAUNZA DCJ, MAKARAU JA and BHUNU JA

This is an appeal against the judgment of the High Court, absolving the respondent from the instance at the close of the appellant's case as plaintiff in that court.The FactsThe appellant is a statutory body set up in terms of section 4 of the Competition Act [Chapter 14:28] (“the Act”); ...

This is an appeal against the judgment of the High Court, absolving the respondent from the instance at the close of the appellant's case as plaintiff in that court.

The Facts

The appellant is a statutory body set up in terms of section 4 of the Competition Act [Chapter 14:28] (“the Act”); its functions, as set out in section 5 of the Competition Act, are as follows:

(a) To encourage and promote competition in all sectors of the economy; and

(b) To reduce barriers to entry into any sector of the economy; and

(c) To investigate, discourage, and prevent restrictive practices; and

(d) To study trends towards increased economic concentration, with a view to the investigation of monopoly situations and the prevention of such situations where they are contrary to the public interest; and

(e) To advise the Minister in regard to a number of issues that are listed in the Act.”

The respondent is in the business of providing internet services. So is Africa Online (Private) Limited (“Africa Online”). The two target different segments of the market, with Africa Online providing its services mainly to large corporates whilst the respondent caters for the lower end of the market.

On a date that is not given in the evidence, the respondent made approaches to the appellant, seeking information and advice on the necessary steps to take in merging with Africa Online. Such approach was not followed up with any notification in terms of the Competition Act.

An anonymous letter was written to the appellant informing it of an alleged merger between the respondent and Africa Online. There is a dispute as to whether or not when the appellant received the anonymous letter, it had commenced investigations into the alleged merger. For the purposes of this judgment, the dispute is of no import. What is common cause is that immediately after, or immediately before receiving the letter, the appellant commenced its investigation into the alleged merger.

The investigation entailed, and included, visiting the offices of the respondent in Mutare and Bulawayo and conducting a raid at the Harare offices. The investigations revealed that the respondent and Africa Online shared directors, offices, personnel, and strategies.

On the basis of these findings, the appellant issued summons against the respondent in the court a quo, on 9 September 2013, principally claiming an order declaring the existence of a notifiable merger between the respondent and Africa Online. The appellant also prayed for an order compelling the respondent to comply with the provisions of the Competition Act requiring the respondent to notify the appellant of the merger and to pay the requisite fee.

The suit was defended.

In its plea, the respondent denied having merged with Africa Online as alleged and put the appellant to the proof thereof. In consequence thereof, it denied being under any legal duty to notify the appellant of the merger as demanded.

The matter proceeded to trial on two issues. These were captured in the joint pre-trial conference minute as;

(i) Firstly, whether or not the defendant merged with Africa Online; and

(ii) Secondly, if the two entities had merged, whether or not such constitutes a notifiable merger in terms of the Competition Act and the relevant regulations.

After leading evidence from two witnesses, the appellant closed its case.

Thereafter, the court a quo absolved the respondent from the instance, as stated above, finding, in its final analysis, that there was no evidence before it upon which a reasonable court might give judgment against the defendant.

The Appeal

Aggrieved by the decision, the appellant noted this appeal, raising seven grounds of appeal.

In the main, the appellant attacks the findings of the court a quo as an improper consideration of the matter that was before it, in that, it took into account extraneous factors that are not provided for in the law. In particular, it was contended, in the grounds of appeal, that the court a quo expected the appellant to lead evidence on issues that are not required to be proved by the law, and, in the absence of such unnecessary evidence, erroneously absolved the respondent from the instance.

The Law

The law on when a court may grant absolution from the instance at the close of the plaintiff's case is settled; see Supreme Service Station (1969) (Private) Limited v Fox & Goodridge Limited 1971 (1) ZLR 1 (A) and United Air Charters (Private) Limited v Jarman 1994 (2) ZLR 341 (S). The court granting absolution must be satisfied that there is no evidence before it upon which a reasonable court might find for the plaintiff.

Expressed differently, the court considering an application for absolution from the instance must ask itself if there is no evidence at all on each and every essential averment that the plaintiff must make to sustain the cause of action. If there is some evidence on all the essential averments, absolution should not be granted. If there is evidence on some but not on all the essential averments, absolution may be granted, for, in that instance, the plaintiff will not be able to sustain and perfect its cause of action. This is so because an application for absolution from the instance stands on pretty much the same footing as an application for the discharge of an accused person at the close of the State case - albeit on a lower threshold of the burden of proof.

It follows, then, that a court granting absolution must be clear on the essential averments that a plaintiff has to make to sustain the cause of action.

Where the cause of action, as in casu, is based on the provisions of a statute, the essential elements of the cause of action are to be found within the four corners of the statute and not anywhere else.

Analysis

The appellant's cause of action is an alleged merger between the respondent and Africa Online. It is based on the provisions of the Competition Act, which, in section 2, defines a merger as “…, the direct or indirect acquisition or establishment of a controlling interest by one or more persons in the whole or part of the business of a competitor, supplier, customer, or other person…,.”

Thus, not in any order of importance or sequence, the averments necessary to sustain an action where a merger, as defined in the Competition Act is alleged, are:-

(a) The acquisition or establishment of an interest in the business of another;

(b) By the respondent;

(c) Which interest enables the respondent to control the assets or activities of that other.

For a court to grant absolution from the instance, in a suit in which a merger under the Competition Act is alleged, it must therefore be satisfied that there is no evidence before it showing that the respondent acquired or established an interest in the business of another which interest enables it to control the assets or activities of that other.

In finding that the appellant had not placed prima facie evidence before the court to sustain its cause of action, the court a quo agreed with the respondent's submission that the appellant had failed to lead evidence showing that the respondent had acquired majority shareholding in Africa Online. It also found that the respondent and Africa Online did not fish from the same pond as they had different target markets; that there was no evidence placed before it that a monopoly had been created and competition stifled, and that there was no evidence of a controlling interest in the sense of one entity having the upper hand or the wherewithal to dictate to the other or manipulate the market.

With respect, the court a quo took into consideration factors extraneous when assessing whether or not the appellant had adduced prima facie evidence to sustain the cause of action that it had brought against the respondent. It did not make reference to or seek to be guided by the provisions of the statute providing for the cause of action.

For instance, the court a quo found that the respondent and Africa Online did not fish from the same point. This was an unnecessary finding to make. In the suit a quo, it was not necessary for the appellant to aver and prove that the respondent and Africa Online were not in competition for the same market. This is because a merger, in terms of the Competition Act, can be established between any persons who may not be in any recognised relationship. It was therefore not necessary that the appellant lead evidence to show that the respondent and Africa Online shared the same market as this is not a requirement of the law.

Secondly, the court a quo granted absolution from the instance on the added basis that there was no evidence placed before it that a monopoly had been created and competition stifled. The law does not require that a monopoly be created as a result of the merger and that there be a stifling of competition. There was therefore no need for the appellant to lead evidence tending to show the creation of a monopoly and the stifling of competition following the alleged merger. Absence of such evidence was therefore an improper basis to ground the order that the court made.

Lastly, whilst the court a quo correctly identified the need for the appellant to lead evidence on the establishment of an interest in Africa Online that would enable it to control the assets or activities of Africa Online, it set the threshold of proof at a level higher than is stipulated in the law. The court required the appellant to lead evidence showing that as a result of the alleged merger, the respondent now had the upper hand and could dictate terms to Africa Online and also enable it to manipulate the market. This is not a requirement of the law.

On the basis of the above, I am satisfied that the court a quo erred and misdirected itself in granting absolution from the instance, after taking into consideration extraneous factors that were not necessary to be proven for the appellant to sustain its cause of action. The decision of the court a quo cannot stand and must be vacated.

Applying the test that I have set out…, to the facts of this matter, I am satisfied that the appellant adduced sufficient evidence before the court a quo to sustain its cause of action. It is therefore my finding that the appellant established a prima facie case for the respondent to rebut if it is to avoid judgment against it.

In view of the success of the appeal, costs of this appeal will follow the cause as prayed.

In the result, I make the following order:

(a) The appeal succeeds with costs.

(b) The judgment of the court a quo is set aside and substituted with the following:

“The application for absolution from the instance is hereby dismissed.”

(c) The matter is remitted to the court a quo for continuation of trial.

View Appeal
HH178-14 : WILLOUGHBY'S INVESTMENTS (PRIVATE) LIMITED vs PERUKE INVESTMENTS (PRIVATE) LIMITED and THE HONOURABLE MR JUSTICE (Ret) A. R. GUBBAY SC
Ruled By: ZHOU J

This is an application in terms of Article 34(2)(b)(ii) of the Arbitration Act [Chapter 7:15] for the setting aside of an arbitral award rendered by the second respondent in favour of the first respondent....,.In the draft order, the applicant asks this Court to set aside the award and to remit the matter to ...

SC88-05 : OLIVINE INDUSTRIES (PRIVATE) LIMITED vs CAUTION NHARARA
Ruled By: CHEDA JA, MALABA JA and GWAUNZA JA

In a judgment, No.LRT/H/238/2002, dated 26 September 2002, the Labour Relations Tribunal (now the Labour Court) made an order for the reinstatement of the respondent to his employment by the appellant. Part of the order read:

“In the event that reinstatement is no longer an option, the respondent be and is hereby ordered to pay the appellant damages in lieu of reinstatement, (the) quantum of which the parties may agree on, failure of which the parties may approach the Tribunal for quantification. (The) appellant (is) granted costs of suit and interest at the prescribed rate.”

The parties met as directed, but failed to agree on the quantum and returned to the Labour Court once more. Mr Sithole, a Trade Unionist, represented the then appellant (now the respondent).

Part of his address to the Tribunal reads as follows:

“The issue of Nharara was partly implemented as per the court order. The judgment, number LRT/H/238/2002, in that judgment, Your Honour, it was ordered that the respondent, being Olivine Industries, was ordered to reinstate the appellant without loss of salary and benefits. And what Olivine did, Your Honour, was simple (sic) to back-pay and they said the issue of reinstatement was a non-starter. We tried our level best, Your Honour, to reason with the respondent but to no avail. The respondent has his (sic) own interpretation of that court order.

The respondent was of the opinion, that, because the relationship was sour, they (sic) could not entertain the issue of reinstating Mr Nharara as per the court order. At the same time, they where (sic) not prepared to pay damages in lieu of reinstatement. And there was a bit of confusion until we had to write back in terms of the spirit of the court order we should refer it back to the Honourable Court, and that is exactly what we did on 11th of July 2003. And in our referral to this Honourable Court, we wrote that we could not agree. Olivine Industries decided to pay only back pay. Other benefits and damages they refused, hence our application for a set-down for this matter.”

The above shows that the parties returned to the Tribunal because of the disagreement on the quantum of damages the appellant should have paid the respondent. The appellant had obviously paid the respondent his back-pay as per part of the order made by the Tribunal.

After hearing both sides, the Tribunal proceeded to make the following order:

“1. The applicant is awarded back-pay from July 4, 1997 to October 11, 2001, together with all the benefits he would have been entitled to had he remained in the respondent's employ during that period.

2. That the respondent pays interest at the prescribed rate on the back pay calculated from October 11, 2001 to the final date of payment.

3. That the respondent pays the applicant eighteen months salary, at today's rates, as damages for the applicant's premature loss of his job, together with interest at the prescribed rate calculated from the date of this judgment to the date of payment in full.

4. That, from the back-pay, an amount of $1,052,010 (one million fifty-one thousand and ten dollars) be subtracted since the applicant has already received this amount.

5. That each party bears its own costs.”

The main grounds of appeal to this Court are that:

(a) The court a quo erred at law in awarding two remedies of back pay and damages, thus over-compensating him;

(b) The court a quo made a vague award of damages at “today's rates”; and

(c) The court a quo made an award that was neither asked for nor supported by either of the parties.

The appellant prays that this Court either re-assess an appropriate award of damages from the evidence on record or remit the matter to the court a quo with directions to make a proper assessment of an award of damages.

There are several cases that provide guidance in cases similar to this one.

Where an employee is found to have been wrongfully dismissed, reinstatement is normally ordered. Taking into account that in some cases reinstatement is found to be no longer desirable if relations between the parties have soured, provision was made for damages to be paid to the employee instead of reinstatement: see Gauntlett Security Services (Pvt) Ltd v Leonard 1997 (1) ZLR 583 (S); Chegutu Municipality v Manyora 1996 (1) ZLR 262; BHP Minerals Zimbabwe (Pvt) Ltd v Cranny Takawira SC81-99 (not reported); and Leopard Rock Hotel Co (Pvt) Ltd v Hilary Van Beek SC6/2000, SC06-00 (not reported).

In Leopard Rock Hotel Co. (Pvt) Ltd v Hilary Van Beek SC6/2000, SC06-00 this Court stated as follows:

“'Back-pay' is thus a concept associated with reinstatement. If an employee is reinstated she will normally be awarded back pay. If she succeeds in proving wrongful dismissal, but is not reinstated, she will be entitled to 'damages', a major element of which will be back-pay. Perhaps more correctly one should say the damages will be assessed by reference to the back-pay lost. But here, the back pay will be limited to a period from the date of wrongful dismissal to a date by which she could, with reasonable diligence, have obtained alternative employment. See Ambali supra and Myers supra.”

In this case, it had been argued that back-pay should be paid only up to the time the respondent could have been expected to have found, with reasonable diligence, alternative employment. What remained in dispute was when the payment of salary and benefits should cease.

It was, therefore, correct, to order that the respondent be awarded back-pay from 4 July 1997, together with interest. The back pay and benefits would represent what the respondent should have received had he not been wrongfully dismissed.

In additional damages, the award should take into account the period he should have taken to obtain alternative employment. No evidence was led on that issue.

It was also submitted that the respondent earned money repairing cellphones and selling tomatoes. This, too, should have been taken into account. No details were given.

While this Court would have liked to see this matter finalised, by making an order, such order cannot be made without evidence on the amounts earned by the respondent during that period.

The respondent can only be compensated by an amount that should be calculated at the rates applicable at the time and not at today's rates or some future unknown rates. An order for payment “at today's rates” is vague and inappropriate in the circumstances.

Today's rates will obviously be very different from the rates that prevailed at the time.

In the previous judgment, No. LRT/H/238/2002, wherein the respondent had succeeded, he was granted costs. No reason was given for changing the award for costs in judgment No. LC/H/55/2004. No appeal was lodged against the order of costs either.

Counsel for the appellant conceded that there was no reason for the Labour Court to change the order for costs.

Accordingly, the appeal succeeds to the extent that:

1. Paragraph 3 of judgment No. LC/H/55/2004 is set aside.

2. The order for costs is set aside.

3. The matter is referred back to the court a quo to hear evidence on the period the respondent would have been reasonably expected, with due diligence, to obtain alternative employment, and the amount that he earned from repairing cellphones and selling tomatoes;

4. The court a quo is ordered to award damages at the rates prevailing at that time and not at today's rates; and

5. There shall be no order as to costs.

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

The appellant was discharged from the Public Service. He had been suspended from duty by the Secretary to his Minister, and, later, served with charges to which were attached certain documents. The letter containing the charges was signed by a Mr Moyo on behalf of the Secretary to the Ministry.

The appellant duly replied, in writing, to the allegations. He required other documents.

He was not supplied with copies of those documents, nor were his legal practitioners, who also demanded copies of them. He was, however, allowed access to them and to make notes.

The Public Service Commission (“the Commission”) held its enquiry, and, as a result, the appellant was found guilty of misconduct and discharged.

He took the matter on review; the sole point of review being, that, the audi alteram partem rule had been breached because of the respondent's failure to supply the requested documents.

The learned judge a quo rejected that argument.

He was right to do so.

The appellant had access to all the relevant documents. He was supplied with some documents along with the charges, and was given access to the others. His legal practitioner had the opportunity to examine the documents, though it is not clear whether he did so. He replied to the charges, in writing, at some length.

In general, on the audi alteram partem rule and its applicability to proceedings under Public Service disciplinary regulations, see Jiah & Ors v Public Service Commission & Anor 1999 (1) ZLR 17 (S); Chitzanga v Public Service Commission HH28-00.

This was not a case like Binza v Acting Director of Works 1998 (2) ZLR 364 (H), where the employee and the court were denied access to the relevant documents.

Before this Court, the appellant took a different line. He raised several new points for the first time.

As he correctly stated, points of law can be raised for the first time on appeal.

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

The appellant argued that the disciplinary proceedings were void ab initio on several grounds –

(1) The suspension was defective;

(2) Even if the suspension was valid, it lapsed automatically after three months, as the charges did not involve financial prejudice to the State;

(3) The charges were invalid, having been preferred by someone other than his head of office, head of department, head of ministry, or the Commission itself;

(4) The charges were fatally defective.

He also argued that his case was not fairly considered, in that –

(5) The Commission did not verify the truthfulness or otherwise of his answers to the misconduct charges by referring to documents referred to it by the appellant;

(6) Information favouring the appellant, and which was available to the Commission, was not placed before it;

(7) There were serious disputes of fact which could not be resolved on the papers only;

(8) The Commission misdirected itself in law in a number of ways.

The respondents do not specifically address point (1) in their heads of argument. In my view, there is no substance in the appellant's submission on this point.

The grounds for suspension are very wide and the Secretary's action could be justified on any of a number of the grounds enumerated in section 8(1) of the Public Service Regulations.

It is also not true to say that the charges did not involve financial prejudice to the State. Clearly, financial prejudice is at the heart of all the charges.

The respondents argue, in respect of point (3), that as section 28 of the Public Service Regulations permits the delegation of disciplinary functions to any person, it must be presumed that Mr Moyo had been duly authorised by the Secretary to sign on his behalf.

As in Marumahoko v Chairman, Public Service Commission & Anor 1991 (1) ZLR 27 (H)…, there is nothing specific to show that the Secretary had authorised Mr Moyo to sign on his behalf.

The maxim omnia praesumuntur rite esse acta should not override the requirements of the Public Service Regulations.

It is likely that Mr Moyo was authorised, but, there is no specific evidence that he was.

However, it should be noted that the letter containing the charges was written “further to” the letter of suspension, which, itself, clearly adumbrated charges being brought. It is also relevant that section 28(2) of the Public Service Regulations states that the Commission may depart from or authorise any departure from the Regulations, or condone any irregularity or departure from any provision of the Public Service Regulations where the irregularity or departure has not resulted, or will not result, in a substantial miscarriage of justice.

It is not clear whether the Commission has formally condoned the irregularity, if indeed it was an irregularity. But, in the circumstances, the irregularity was, in my view, not such as to invalidate the proceedings, being one of the most technical kind and of no real significance.

The Commission reached its decision without the benefit of very important information, which might well have led it to a different conclusion.

It is clear, that, the Commission was aware that the appellant was trying to shift the blame, in respect of the first three charges, to the late Mr Guyo, but, it does not seem to have considered the report of the Board of Inquiry into the late Mr Guyo's activities (in this regard, the remarks of CHIDYAUSIKU JP in Marketing Sales Agents (Private) Limited v Minister of Lands and Water Development HH235-98 may well be pertinent).

No reason is given for this omission, and the respondents content themselves with saying, in their heads of argument, that, the disputes of fact go to the merits and could not be argued on review.

The respondents' submission is that the appellant should not be allowed to introduce the evidence relating to Mr Guyo's Board of Inquiry “as (the documents) concern another officer and could only have a bearing, possibly on the merits, which is not a reviewable ground.”

They concede, that, they would not be prejudiced if the evidence were to be admitted.

It seems to me that where a tribunal has reached a decision in the absence (for whatever reason) of vital evidence, it cannot be said to have reached a decision on the merits. It would be contrary to justice to allow the decision to stand.

It must be pointed out, though, that the fourth charge did not, apparently, concern Mr Guyo. It is a relatively minor charge.

If the Commission were to acquit the appellant on the charges where Mr Guyo was allegedly involved, it may take a different view of the penalty on the fourth charge.

I therefore consider it prudent that the whole matter be heard afresh.

I do not believe that this Court should consider the evidence. This is a situation where the appropriate course would be to set aside the Commission's decision and remit the matter to it, so that it can reconsider the case in the light of the report of the Board of Inquiry's findings into Mr Guyo's activities.

It also seems to me that this is a case where oral evidence should have been heard.

In the result, the appeal is allowed with costs. The matter is remitted to the Public Service Commission for a full hearing.

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

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

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

The High Court dismissed the claims with costs.

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

THE FACTUAL BACKGROUND

The basic facts surrounding the dispute are the following:

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

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

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

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

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

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

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

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

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

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

In dismissing the claims, the court a quo stated:

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

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

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

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

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

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

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

The appeal is premised on the following grounds:

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

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

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

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

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

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

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

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

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

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

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

THE ALLEGEDLY SIMULATED AGREEMENTS

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

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

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

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

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

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

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

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

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

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

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

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

This leaves Indium, Kingshaven, Shumba and his wife.

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

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

THE VALIDITY OF THE LEASE AND THE REI VINDICATIO

I turn, then, to discuss the real issue before the court a quo, that is, the claim for the eviction of Kingshaven, and through it, Shumba and his wife, from its premises.

The preamble to the lease agreement acknowledges that Jayesh Shah and Shaleetha Mahabeer have become the beneficial owners of shares in Indium Investments (Private) Limited. The relevant provision states:

“Whereas, by a sale of shares agreement between JAYESH SHAH and SHALEETHA MAHABEER, on the one part, and DANIEL SHUMBA and LINDA SHUMBA, on the other, JAYESH SHAH and SHALLETHA MAHABEER have become the beneficial owners of shares in INDIUM INVESTMENTS (PRIVATE) LIMITED.”

In turn, Indium is the registered owner of the premises.

In terms of clause 3.1 of the lease agreement, the lessee undertook to deposit an amount of Z$ One Billion as security for the due performance by it of its obligations under the lease. Rental for the premises was set at Z$ One Billion per month payable in advance and reviewable from time to time.

In recognition of the prior ownership of the shares in Indium, by Shumba and his wife, in terms of clause 13.1 of the lease, the latter were granted an option to re-purchase the shares in Indium. The option was to expire on 9 October 2008.

It is common cause that the option was not exercised.

In February 2008, Indium advised Kingshaven, that, it was in breach of its obligations under the lease to pay rentals and cancelled the lease. On 10 December 2008, the lease also expired through the effluxion of time. Indium again issued summons, this time claiming return of the premises by virtue of the expiry of the lease through the effluxion of time.

In the plea to the claim for their eviction from the premises, the respondents admitted, that, the appellant was the registered owner of the premises.

The claim, as pleaded by the appellant, was a simple actio rei vindicatio.

The nub of the actio rei vindicatio is that an owner is entitled to reclaim possession of his property from whosoever is in possession thereof. As was stated in Chetty v Naidoo 1974 (3) SA 3…,:

“It may be difficult to define dominium comprehensively (cf. Johannesburg Municipal Council v Rand Townships Registrar & Ors 1910 TS 1314 at 1319), but, there can be little doubt…, that, one of its incidents is the right to exclusive possession of the res, with the necessary corollary that the owner may claim his property wherever found, from whomsoever holding it.

It is inherent in the nature of ownership, that, possession of the res should normally be with the owner, and, it follows, that, no other person may withhold it from the owner unless he is vested with some enforceable right against the owner (e.g. a right of retention or a contractual right).”

As a consequence, once the ownership by Indium of the premises was acknowledged and accepted by the respondents, all that the court a quo had to determine was whether Kingshaven had any legal right to remain in possession of the same.

Therefore, the simple task before the court a quo was to decide whether or not a lease agreement existed between the parties as alleged, and, thereafter, to determine whether or not the claim for eviction on the lease was well founded.

This, the court failed to do.

It went on to make wider pronouncements on relationships that were not before it. It thereby misdirected itself.

The principle of rei vindicatio was applied in Stanbic Finance Zimbabwe Ltd v Chivhungwa 1999 (1) ZLR 262 (H) by MALABA J…, where he remarked as follows:

“The principle on which the actio rei vindicatio is based is that an owner cannot be deprived of his property against his will and that he is entitled to recover it from any person who retains possession of it without his consent.

The plaintiff, in such a case, must allege, and prove, that he is the owner of a clearly identifiable movable or immovable asset and that the defendant was in possession of it at the commencement of the action.

Once ownership has been proved, its continuation is presumed.

The onus is on the defendant to prove a right of retention: Chetty v Naiddo 1974 (3) SA 13 (A) at 20A-C: Makumborensa v Marini SC130-95 p2.

It follows, that, the action is based on the factual situation that prevailed at the time of the commencement of the legal proceedings.”

Once an owner proves that the property is his and that the defendant originally obtained possession of the res pursuant to a contract, the owner is obliged to prove that such a contract has expired or that he was entitled to cancel it and has indeed terminated it.

In Chetty v Naidoo 1974 (3) SA 3 it was emphasised that:

“…,. a plaintiff who claims possession by virtue of his ownership must, ex facie his statement of claim, prove the termination of any right which he concedes the defendant would have had but for the termination.”…,.

The only defences available to a defendant in the position of the respondent are the following;

(i) That he had a right to possess;

(ii) That he was not in possession; or

(iii) That the plaintiff is not the owner.

It is worth noting, that, the respondents did not plead any of these defences.

In truth, they could not have, as they had a lease with Indium the termination of which they did not deny or place in issue. The validity of the lease agreement is confirmed.

Counsel for the appellant has, however, further submitted, that, the court, in the face of this clear claim, then went on to grant judgment in favour of the respondents in the absence of a counter claim.

In African Farms and Townships v C.T. Municipality 1963 (20) SA 555 (AD) STEYNE CJ made the following remarks:

“Counsel for the appellant further argued, that, the order in the original proceedings, which as such is an order dismissing the application, is to be equated with absolution from the instance, leaving the issue undecided.

In my view, there is no substance in that argument.

As Sande, De Diversis Regulis ad l. 207, points out, the res judicata is not so much the sentential, the sentence, or the order made, as the lis or negotium, the matter in dispute or question at issue about which the sententia is given, or the causa which is determined by the sententia judicis.

As pointed out in Purchase v Purchase 1960 (3) SA 383 (N) at p385, dismissal and refusal of an application have the same effect, namely, a decision in favour of the respondent.

The equivalent of absolution from the instance would be that no order is made, or that leave is granted to apply again on the same papers.

In Commissioner of Customs v Airton Timber Co Ltd 1926 CPD 351 at p359, WATERMEYER J, draws a distinction between the actual judgment and the reasons for judgment, and expresses the view, in effect, that, where the decision of a particular question, although dealt with in the reasons for judgment, is not incorporated in the actual judgment, and the question is not necessarily determined by the judgment, the matter is not res judicata.

I do not understand this to mean, that, where a Court decides the particular issue raised and dismisses the application, the question decided is not res judicata. If that is what it does mean or imply, I would be unable to agree with it.

In the present case, having regard to the judgment, the import of the order is clearly that, on the issues raised, the Court found against the appellant and in favour of the respondents.”

A dismissal of the plaintiff's claim is a judgment in favour of a defendant.

It is my view, that, the dismissal had the effect of awarding the respondents judgment in their favour.

I turn next to the relief being sought.

In the prayer, the appellant seeks an order for the setting aside of the judgment of the court a quo and its substitution with an order entering judgment in its favour in terms of the summons.

In addition to the cancellation of the lease, Indium sought the following relief:

“2. An order directing the defendants, and all those claiming occupation through them, to vacate the premises situate Stand 450 Avondale West Township of Stand 390 Avondale West, otherwise known as 108 West Road, Strathaven, Harare (“the premises”).

3. An order that in the event that within forty-eight (48) hours of the date of the above order being issued and the defendants failing and/or neglecting and/or refusing to comply, the Sheriff for Zimbabwe, or his lawful deputy for Harare, duly assisted by the Zimbabwe Republic Police if need be, be authorised empowered and directed to eject the defendants from the premises, and all those claiming occupation through them, and to hand over vacant occupation of the premises to the plaintiff or its authorised agent or representative.

4. An order precluding and restraining the defendants from removing any item of property from the premises.

5. An order for payment of the sum of $Z2,567,000,000 (two billion five hundred and sixty seven million dollars) together with interest thereon calculated at the prescribed rate to the date of payment as follows;

5.1 On Z$567,000,000 (five hundred and sixty seven million dollars) with effect from 10 December 2007;

5.2 On Z$1,000,000,000 (one billion dollars) with effect from 1 January 2008; and

5.3 On Z$1,000,000,000 (one billion dollars) with effect from 1 February 2008.

6. An order for holding-over damages at the rate of Z$4,000,000,000 (four billion dollars) per month with effect from 1 March 2008 to the date that the plaintiff recovers vacant occupation of the premises aforesaid, such rate to be adjusted from time to time in accordance with market rates.

7. An order for interest on the sum of holding over damages aforesaid at the prescribed rate from the date each amount becomes due and payable.

8. An order for payment of the sum of Z$10,000,000,000 (ten billion dollars) together with interest thereon at the prescribed rate from the date of judgment to the date of payment.

9. Costs of suit as between legal practitioner and client.”

The appellant sought for an order confirming the cancellation of the lease.

It is common cause that the lease has expired through the effluxion of time. Its expiry is not in dispute and it is not necessary to confirm its cancellation.

As a consequence, an order for the eviction of the respondents from the premises will issue.

The interdict against the removal of items from the premises was never put in issue.

However, the claim for the payment of sums under various heads was not considered by the court a quo.

Neither counsel addressed us on the issue.

The record is clear, however, that, no evidence was adduced by Indium in respect of the sums of money being claimed under the various heads.

The claim for holding over damages is premised on the lease agreement and it would follow from a confirmation of the cancellation of the lease.

The same considerations would apply to the claim for arrear rentals as that would be a consequence of the finding that a valid lease existed between Kingshaven and Indium.

The amounts claimed were denominated in the local currency and were never converted to the United States Dollar currency in the trial below. They therefore remain an issue for determination by the court a quo.

In view of the position taken by the court a quo not to delve into the merits of the claim for ejectment and consequential relief flowing therefrom, it seems in order that the parties be given an opportunity to have that aspect of the dispute fully ventilated and determined by the court.

In the premises, it is only appropriate to grant relief in respect of the eviction and the interdict and to remit the matter to the court a quo for the determination of what sums of money, if any, may be due to Indium.

The trial court can take judicial notice of the fact, that, the country, and, indeed, every person in the country uses foreign currency to transact and that the country adopted a multi-currency regime with effect from February 2009.

It is also worthy to note, that, the Zimbabwe Dollar has since been demonetized.

To that end, justice would best be served if the parties were to adduce evidence from experts in the field of real estate as to any sums that may be owing under the headings on which the matter is remitted for the adduction of evidence.

With regard to the sums being claimed for payment of costs on the various agreements concluded between the parties, no evidence was led in the court a quo, either as to the amounts being claimed in the local currency, if any, or the rate of exchange that should be applied in converting the said sums to the US Dollar.

This claim must fail.

Accordingly, the appeal succeeds to the extent that the lease agreement is held to be valid and an order for the eviction of the respondents shall ensue.

The matter is remitted for the determination of the arrear rentals and holding over damages before the court a quo.

Accordingly, the following order will issue:

“IT IS ORDERED THAT:

1. The appeal is allowed with costs to the extent provided for hereunder:

(i) The judgment of the court a quo is set aside and substituted with the following:

(a) It is declared that the lease agreement between the plaintiff and the first respondent has terminated through the effluxion of time.

(a) The defendants, and all those claiming occupation through them, shall vacate the premises, being Stand 450 Avondale West Township of Stand 390 Avondale West, otherwise known as 108 West Road, Strathaven, Harare within seven (7) days of the date of this judgment, failing which the Sheriff for Harare or his lawful deputy is hereby authorised to eject them from the same and give vacant possession to the plaintiff or its duly authorised agent or representative.

(b) The defendants be and are hereby precluded and prevented from removing, with the exception of personal items belonging to them, any item of property from the premises.

(c) The claim for payment of Z$10,000,000,000, being costs for the preparation of various agreements concluded by the parties, is hereby dismissed with costs.

2. The issue relating to the payment of sums of money claimed under paras (e) to (g) of the prayer in the declaration are remitted to the court a quo for a determination on the substance of what sums are due and owing.”

HH42-08 : JAMESON MANDAVA vs TSITSI CHASWEKA
Ruled By: MAKARAU JP and HLATSHWAYO J

On 23 May 2005, the respondent issued summons out of Marondera Magistrates' Court. Her claim against the defendant, as it appears on the face of the summons, is recorded as “sharing property”. An affidavit was attached to the summons, curiously titled, in my view, as “Applicant's supporting affidavit (Property Sharing)”.

In the affidavit, the respondent alleged that she was in an unregistered customary union with the appellant, and that, during the subsistence of the union, the parties had acquired certain household goods and effects. She gave the estimate value of each item that she alleged the parties acquired. She further alleged that due to the violent conduct that the appellant exhibited towards her, the union between them had broken down irretrievably. She ended the affidavit by praying that the court confirms the distribution of the assets as suggested by her in the affidavit.

It is not clear on the record how the matter was set down for trial….,.

The record, however, indicates that on the day of the trial, the appellant was in attendance and verbally indicated that he was opposed to the proposals made by the respondent. Prior to the set down date, he had not filed any pleadings or other papers in the matter.

The matter proceeded to trial with the parties giving evidence. For the purposes of this appeal, it is in my view not necessary that I go into the details of the evidence that each party led.

After hearing the parties, the trial court made an award that dissatisfied the appellant, prompting him to note an appeal to this court. In his Notice of Appeal, the appellant challenged the distribution that was made in the lower court and prayed that it be set aside.

The parties were not legally represented at any stage of the legal battle between them. We thus could not engage them at all regarding the legal issues that arise in this appeal.

The legal points made in this judgment are therefore our opinions without the aid of argument by counsel.

The two issues that arise, are, in my view, so important that a copy of this judgment will be dispatched to the Chief Magistrate for his attention and for the benefit of other trial magistrates who may be falling into the same pitfalls that the trial magistrate in this matter fell.

I shall make the necessary order for this to be effected by the Registrar….,.

The second issue that arises in this appeal is one that escaped a number of trial magistrates from the nature of the appeals that are reaching this court.

The issue is of a socio-legal nature and requires intervention from Parliament to correct the anomaly that exists between registered and unregistered customary unions.

It is still part of our law that unregistered customary unions are not marriages for the purposes of the Matrimonial Causes Act [Chapter 5:13]. Consequently, parties to such unions cannot be divorced by the courts and their joint estate cannot be distributed in terms of the divorce of this country.

Trial magistrates who deal with the estates of parties to an unregistered customary union tend to fall into three errors:

(i) Firstly, they tend to proceed to deal with unregistered unions as if they are registered.

(ii) Secondly, they fail to avert to the choice of law provisions of our law; and

(iii) Finally, they tend to forget their monetary jurisdictional limit when distributing joint estates at General Law.

The trial magistrate in casu fell into all three traps.

In his award, he was attempting to effect a just and equitable distribution of the joint estate as if he was dealing with a marriage recognized as such at law. He applied the law of equity as provided for in section 7 of the Matrimonial Causes Act and attempted to sort the estate into three lots marked 'his', 'hers' and 'theirs' following the guidelines given to divorce courts by the Supreme court in Takafuma v Takafuma 1994 (2) ZLR 103 (SC).

The above is not to say that parties in an unregistered customary union cannot approach the court for relief.

They can.

However, when they do so, it is a requirement of our law that they chose which law they want to apply to the resolution of their dispute as between Customary and General Law, and, if they chose General Law, they must plead a cause of action recognizable at law as their “marriage” is not recognized as such.

In casu, no choice of law inquiry was gone into and it is clear that he was not applying Customary Law. However, since no cause of action at General Law had been pleaded, it is difficult to establish how he came up with the order that he made and which principles of law he applied.

Finally, the Magistrate's Court is a creature of statute with set jurisdictional limits in civil matters.

Assuming that a choice of law had been properly made, and that choice was General Law, that a valid cause of action had been pleaded, and the matter had properly proceeded to trial in terms of the Rules, the value of the estate that the trial court set to distribute far exceeded its monetary jurisdiction and the trial magistrate did not even advert to this issue.

The issues that I have highlighted above are not new to this Appeal Court.

I have had occasion to discuss the same issues in B Feremba v P Matika HH33-07. I will take the risk of repeating myself again in this judgment and exhort all trial magistrates approached to distribute the joint estates of persons in an unregistered customary union to ensure that the parties before have made the appropriate choice of law between Customary and General Law. Once a choice of law has been appropriately made, two further issues arise, but, only if General Law is chosen. These are:

(i) The cause of action; and

(ii) The monetary jurisdiction of the trial magistrate.

In view of the fact that the trial magistrate failed to observe any of the above, his decision cannot stand.

In the result, I make the following order:

1. The appeal is allowed.

2. The matter is hereby remitted to the Magistrate's Court for a trial de novo.

3. The parties are to file pleadings in accordance with the provisions of the Rules and a pre-trial conference has to be held in the matter before the trial.

4. Each party shall bear its own costs.

5. The Registrar of this court is directed to bring this judgment to the attention of the Chief Magistrate.

SC02-14 : C vs C (IN CAMERA)
Ruled By: ZIYAMBI JA, GARWE JA and PATEL JA

The trial in this matter was conducted before the High Court contrary to the clear terms of the order of this Court, dated 21 March 2013, which had directed that the issues of divorce and proprietary interests be dealt with at the same time. The law is clear that an extant order of this Court ...

SC57-19 : THE COLD CHAIN (PRIVATE) LIMITED t/a SEA HARVEST vs ROBSON MAKONI
Ruled By: GOWORA JA, HLATSHWAYO JA and MAVANGIRA JA

On 21 December 1999 at the 12km peg along the Rusape to Nyanga road a horrific collision involving the respondent and an employee of the appellant occurred. The former sustained frightful injuries. Sadly, the appellant's employee succumbed to injuries occasioned from the collision. The following facts are common cause. The respondent sued for and was awarded damages by the ...

The following facts are common cause.

The respondent sued for and was awarded damages by the High Court on 23 January 2008. The damages so awarded were the following:

(i) BP (Botswana Pula) 63,750 for the cost of replacement of a vehicle;

(ii) BP83,717=90 in respect of medical expenses.

(iii) BP1,800,000 for loss of income.

(iv) Z$3,500 towing charges.

(v) BP12,000,000 car hire charges.

(vi) Z$2,000,000 shock, pain and suffering.

(vii) Z$850,000 disability damages.

(viii) Z$1,000,000 future medical expenses.

The appellant was dissatisfied with the judgment and appealed to this Court against the finding of vicarious liability as well as the amounts awarded in Botswana Pula (BP). There was no appeal against the amounts denominated in the Zimbabwe dollar. On 28 February 2012 this Court, in the case of The Cold Chain (Pvt) Ltd v Robson Makoni SC09-12, issued an order in the following terms:

“IT IS ORDERED THAT:

1. The application to adduce further evidence is dismissed with costs.

2. The appeal against the finding of vicarious liability is dismissed.

3. The appeals in respect of the value of the replacement motor vehicle, vehicle hire charges, and lost income are allowed and the order of the court a quo is altered in the following respects:

(i) In paragraph (a), Botswana Pula 40,000 is substituted for BP63,000;

(ii) In paragraph (c), Botswana Pula 616,200 is substituted for BP1,800,000;

(iii) In paragraph (e), Botswana Pula 6,000 is substituted for BP12,000,000.

4. There will be no order as to costs of appeal.

It is common cause that the appellant paid the amounts denominated in Botswana Pula. In respect of the other sums it tendered payment in Zimbabwe dollar. The respondent rejected the tender. He contended that due to the erosion of the currency it had become moribund due to disuse, and, as such, he had no use for it. He could not tender the same for payment to anyone.

An impasse ensued which resulted in the respondent filing an application with the High Court for the conversion to United States Dollars of the sums awarded to him in the local currency.

The High Court found that it had no jurisdiction to convert the amounts thus awarded to United States dollars. It said:

“In conclusion, this Court's opinion on the issue of currency nominalism, in the circumstances of this case, is that, while on the whole this Court has inherent jurisdiction to ensure that the process of execution is neither abused nor unfair, it does not have jurisdiction to rewrite an order in the manner sought by the applicant. I hold the considered view that this Court cannot revalue an order for purpose of execution.”

In short, it declined jurisdiction.

The respondent was aggrieved and appealed to this Court and was successful. In Robson Makoni v The Cold Chain t/a Sea Harvest SC55-16, this Court said the following:

“The principles enunciated in the case of Dube (supra) demonstrate that the once and for all rule is not applicable to the facts of this case because the applicant is not seeking further damages for the injuries he sustained in the accident. He is seeking the conversion of the damages he was awarded by the High Court in 2008 in Zimbabwean dollars to United States dollars. The appellant's application is intended to facilitate the enforcement of the order of damages in Zimbabwean dollars. The once and for all rule prevents a plaintiff from seeking further damages from a cause of action previously sued on. It does not prevent him from seeking the currency adjustment of an order already granted by the court.

Courts have authority to adjust their orders but under prescribed circumstances. Those circumstances depend mainly on whether or not the court will be functus officio.

The court a quo erred by relying on the once and for all rule to hold that it had no jurisdiction to hear the appellant's application. The application was for the conversion of already granted Zimbabwean dollar awards to United States dollars, which both parties agree have not yet been paid as there is a dispute as to how payment should be made. It was thus premised on a subsequent dispute over how damages awarded by the High Court in 2008 should be enforced.

The court's awards had been made uncertain by the dollarization of the Zimbabwean economy.

The appellant could not have reasonably foreseen that the Zimbabwe currency was going to be rendered moribund by the introduction of the United States dollar as usable currency in Zimbabwe.”

The court therefore allowed the appeal and issued an order in the following terms:

“Accordingly, it is ordered as follows;

1. The appeal is allowed with costs.

2. The decision of the court a quo is set aside.

3. The matter is remitted back to the court a quo for a hearing and determination on the merits.”...,.

The further contention made on behalf of the appellant is that there was no jurisdictional basis for the court to exercise its original jurisdiction to convert the award to foreign currency on the basis that there was nothing to convert.

In Robson Makoni v The Cold Chain t/a Sea Harvest SC55-16 which was an appeal against a decision of the High Court in which that court had declined jurisdiction to grant an application for the conversion of the original award into foreign currency, this Court said:

“I am aware that the correction of judgments in terms of the court's jurisdiction to protect and regulate its processes in the interest of justice must be done within a reasonable time after the delivery of the judgment to be corrected. In this case, the judgment to be 'corrected' was taken on appeal. It thus had to await the decision of the Supreme Court after which the appellant sought payment. When the respondent refused to pay the appellant made the application which is the subject of this appeal. I am therefore satisfied that the appellant applied for conversion within a reasonable time. He, in other words, was not a sluggard.

Accordingly, this case should not be seen as opening the gates to all cases where judgments were denominated in Zimbabwean dollars and the affected parties failed or neglected to timeously do what the appellant in this case did, namely, seek the court's assistance to convert the awards to usable currency. A court order which is clear and enforceable at the time of delivery cannot be rendered nugatory and unenforceable by unforeseeable subsequent events which affect its clarity and render it unenforceable in its present form. The court a quo is entitled to protect and regulate its orders so that they remain enforceable.

I therefore hold that in terms of section 176 of the constitution, the court a quo has jurisdiction to hear and determine the appellant's application.”...,.

Appealed
SC01-21 : BERNARD MARANGE vs ZVIDZAI MARANGE and MINISTER OF RURAL DEVELOPMENT, PROMOTION AND PRESERVATION OF NATIONAL CULTURE AND HERITAGE and PRESIDENT OF ZIMBABWE
Ruled By: GWAUNZA DCJ, PATEL JA and BERE JA

This is an appeal against the whole judgment of the High Court setting aside the appointment of the appellant to the Marange chieftainship in 2016. It is a matter concerning the procedure to be followed in the appointment of chiefs in Zimbabwe pursuant to the advent of the current Constitution ...

Background

The substantive Chief Marange died on 6 September 2005. Two of his relatives acted in his place and stead following his death. Following a long and arduous selection process, the appellant was eventually installed as Chief Marange on 27 October 2016.

The first respondent challenged this appointment as having taken place irregularly and improperly. In particular, he averred that he was the people's preferred candidate for the position and that the second respondent (the Minister) had hand-picked the incumbent and imposed him on the people against their wishes.

The first respondent moved the court a quo to review the conduct of the Minister and to set aside the appointment of the appellant as Chief Marange. The appellant, together with the other respondents a quo, opposed the application on the basis that the court lacked jurisdiction to hear and determine the application by reason of the provisions of section 283 of the Constitution.

Judgment of the High Court

The court a quo rejected the point in limine taken by the respondents before it. It found that it did have the jurisdiction, by virtue of sections 26 and 27 of the High Court Act [Chapter 7:06], to inquire into the conduct of the Minister, as an administrative authority, and to ascertain whether that conduct fell within the law.

The court further found that the people chosen by the Minister to advise him on the selection process were not conversant with the customs and traditions of the Marange people.

The court took the view that the chieftainship dispute should have been resolved by the Minister in terms of section 283(c)(ii) of the Constitution. He should have referred the dispute to the Provincial Assembly of Chiefs to consider the matter and report back to him as provided by section 42(3) of the Traditional Leaders Act [Chapter 29:17]. Instead, he acted outside the law in accepting the recommendation of one of the commissions that had been illegally set up by him to identify a suitable candidate for the chieftainship. Consequently, he acted ultra vires the Constitution in appointing the appellant as Chief Marange.

As regards the first respondent's claim to the chieftainship, the court a quo found that the documents that he had produced did not substantiate his allegations. He did not produce anything to support his claim to be the people's choice. On the other hand, the court held that the first respondent had proved his case, for the setting aside of the appellant's appointment, on a balance of probabilities.

The court accordingly ordered that the appointment of the appellant, as the substantive Chief Marange, be set aside. Additionally, the appellant and the Minister were ordered to pay the costs of the application. In effect, the third respondent (the President) was entirely absolved of any responsibility for the Minister's unlawful conduct.

Grounds of Appeal and Relief Sought

The four grounds of appeal herein impugn the judgment of the court a quo on the following bases:

(i) The first is that the jurisdiction of the court to deal with chieftainship disputes was ousted by section 283 of the Constitution.

(ii) The second is that the dispute in this case arose when the first respondent challenged the appellant's appointment, and, it is at that point that the Minister should have referred the dispute for resolution by the President.

(iii) The third takes issue with the court, having found that the first respondent had not proven his case, but, nevertheless, granting the relief sought by him setting aside the appellant's appointment.

(iv) The fourth attacks the implied finding of the court to the effect that the appellant's appointment was not in accordance with the custom and practice of the people of Marange.

The relief sought by the appellant is that the appeal be allowed with costs and that the judgment a quo be set aside and be substituted with an order dismissing the application with costs.

The Governing Provisions

Section 280 of the Constitution recognises the institution, status, and role of traditional leaders under the Constitution, while section 281 underscores the principles to be recognised by traditional leaders. Section 282 spells out the functions of traditional leaders within their respective areas of jurisdiction.

Sections 285 and 286 of the Constitution provide for the establishment and functions of the National Council of Chiefs and Provincial Assemblies of Chiefs.

In terms of section 285(2), a Provincial Assembly of Chiefs must be established for each province by an Act of Parliament. By virtue of section 286(1)(f), one of the functions of a Provincial Assembly is “to facilitate the settlement of disputes between and concerning traditional leaders” within its Province.

The critical provision for consideration in casu is section 283 of the Constitution relating to the appointment and removal of traditional leaders. It is necessary to set it out in full as follows:

“An Act of Parliament must provide for the following, in accordance with the prevailing culture, customs, traditions and practices of the communities concerned —

(a) The appointment, suspension, succession and removal of traditional leaders;

(b) The creation and resuscitation of chieftainships; and

(c) The resolution of disputes concerning the appointment, suspension, succession and removal of traditional leaders; but —

(i) The appointment, removal, and suspension of Chiefs must be done by the President on the recommendation of the Provincial Assembly of Chiefs through the National Council of Chiefs and the Minister responsible for traditional leaders and in accordance with the traditional practices and traditions of the communities concerned;

(ii) Disputes concerning the appointment, suspension and removal of traditional leaders must be resolved by the President on the recommendation of the provincial assembly of Chiefs through the Minister responsible for traditional leaders;

(iii) The Act must provide measures to ensure that all these matters are dealt with fairly and without regard to political considerations;

(iv) The Act must provide measures to safeguard the integrity of traditional institutions and their independence from political interference.”…,.

Turning to the Traditional Leaders Act [Chapter 29:17], section 3(1) of this Act empowers and obligates the President to appoint chiefs to preside over communities inhabiting Communal Land and Resettlement areas.

In performing this function, the President is enjoined, by section 3(2), to give due consideration to the prevailing customary principles of succession, and, wherever practicable, to appoint a person nominated by the appropriate persons in the community concerned in accordance with those principles. In the event that such nomination is not made within two years after the chieftainship became vacant, the responsible Minister is then required, in consultation with the appropriate persons, to nominate a person for appointment as chief.

Section 3(3) of the Traditional Leaders Act enables the President, where he is of the opinion that good cause exists, to remove a chief from office. This power is subject to section 7 which prescribes the disciplinary procedures to be followed where a chief commits or is alleged to have committed a specific offence or act of misconduct.

Part IX of the Act provides for the establishment and functions of Provincial Assemblies and the Council of Chiefs.

In terms of section 35(1), there is constituted a Provincial Assembly for each province of all the chiefs of that province.

Section 35(2) requires every Provincial Assembly “to meet at least twice a year at such time and place as the Minister may from time to time determine.”

One of the principal functions of a Provincial Assembly, as stipulated by section 36(b), is “to consider and report on any matter which is referred to it by the Minister, the Council, or a member of such provincial assembly.”

Following exchanges with the Court, it was accepted, by both counsel, that section 283 of the Constitution does not constitute the actual Code that governs the appointment and removal of chiefs or the resolution of disputes in that connection.

What section 283 does is to enunciate the template to be applied in the formulation and implementation of that Code.

It is also common cause that the Traditional Leaders Act, duly modified so as to fully conform with the Constitution, provides the requisite legislative framework contemplated by section 283 of the Constitution.

Thus, even without having been exactly aligned to the Constitution, the Traditional Leaders Act makes it clear that it is the President who is vested with the power to appoint and remove chiefs from office and that he must do so in accordance with the prevailing customary principles of succession, following nominations by the local community and/or the responsible Minister.

To a significant extent, therefore, the provisions of the Traditional Leaders Act that I have alluded to are perfectly capable of being applied in accordance with the requirements of section 283 of the Constitution.

I am amply fortified in adopting this approach by having regard to paragraph 10 of the Sixth Schedule to the Constitution, which dictates the continuation in force of all existing laws to be construed in conformity with the Constitution.

Jurisdiction to entertain chieftainship disputes

As I have already stated, section 283 of the Constitution is not a substantive provision that impacts directly on the law governing the appointment and removal of traditional leaders. Rather, it declares what that law should provide in regulating, inter alia, the resolution of chieftainship disputes. Consequently, it cannot be construed, per se, as ousting the jurisdiction of the courts over such disputes.

At common law, the High Court enjoys original review jurisdiction. This jurisdiction is now codified in section 26 of the High Court Act [Chapter 7:06] which endows the court with the “power, jurisdiction, and authority to review all proceedings and decisions of all inferior courts of justice, tribunals, and administrative authorities within Zimbabwe.”

Section 27 of the High Court Act elaborates “the grounds on which any proceedings or decision may be brought on review” and includes “any gross irregularity in the proceedings or the decision.”

The powers of the court, on review of civil proceedings and decisions, are spelt out in section 28 which enables the court “subject to any other law, [to] set aside or correct the proceedings or decision.”

It is trite that Parliament is at large, subject to the Constitution, to curtail or oust the jurisdiction of any court. However, it is equally trite that any such ouster must be effected in clear and un-ambiguous terms.

In the present context, even if section 283 of the Constitution were to be regarded as a substantive provision, I am unable to discern anything in its language that might be construed, whether expressly or by necessary implication, to curtail or oust the review jurisdiction of the High Court.

By the same token, there is nothing contained in section 3 of the Traditional Leaders Act, being the relevant substantive provision currently in force, which might be taken as effecting any such ouster.

It follows from the foregoing that the court a quo was correct in adopting the stance that it was invested with the requisite jurisdiction to review the acts and conduct of the Minister, in his capacity as an administrative authority, on the recognised grounds of illegality, irrationality, or procedural impropriety.

More specifically, what is reviewable is not how the President exercises his discretion but whether those who formulate their advice to him acted on sound principle: see Rushwayo v Minister of Local Government & Anor 1987 (1) ZLR 15 (S)…,.; Chigarasango v Chigarasango 2000 (1) ZLR 99 (S); Moyo v Mkoba & Ors SC35-13; Munodawafa v Masvingo District Administrator & Ors HH571-15.

It further follows that the first ground of appeal, challenging the assumption of jurisdiction by the court a quo in a chieftainship dispute, as having been ousted by section 283 of the Constitution, is misplaced and cannot be sustained.

What remains in issue, however, is the decision made by the court, pursuant to the exercise of its jurisdiction, to set aside the appointment of the appellant as the substantive Chief Marange.

Appointment to substantive chieftainship

The court a quo proceeded on the basis that the commissions of inquiry established by the Minister were not provided for in the current Constitution or in the Traditional Leaders Act. One such Commission identified the appellant as a suitable candidate for the position of Chief Marange. This, according to the learned judge, offended section 283 of the Constitution. Both the Commission and the Minister acted ultra vires the Constitution. Their actions were nullities and therefore could not be allowed to stand.

The Minister was called upon to revisit the matter “properly guided by section 283 of the Constitution of Zimbabwe as read with section 42(3)(b) of the Traditional Leaders Act.”

In the event, the court was satisfied that the applicant (the first respondent herein) had proved his case on a balance of probabilities. It accordingly ordered that the appointment of the first respondent (the appellant herein), as the substantive Chief Marange, be set aside.

Both counsel are in agreement that the court a quo relied upon and applied the wrong provisions in setting aside the decision of the Minister and the appointment of the appellant.

As I have concluded earlier, section 283 of the Constitution is not directly applicable to the resolution of the dispute in casu.

As for section 42(3)(b) of the Traditional Leaders Act, which was referred to by the court a quo, there is no such provision in the Act. This provision simply does not exist.

It is clear, therefore, that the learned judge a quo mis-apprehended and mis-applied the law governing the appointment of chiefs. He consequently set aside the decision of the Minister and the ensuing appointment of the appellant, as Chief Marange, on the wrong legal basis.

Equally critically, it would appear that the court a quo opted to delve into the substantive merits of the respective positions advanced by the contesting parties.

The first respondent's case was that he was the people's preferred candidate for chieftainship and that the appellant had been hand-picked by the Minister and imposed upon the people of Marange against their wishes.

In support of his case, the first respondent tendered the supporting affidavits of nine other persons and two seemingly relevant documents. The court a quo rejected the first respondent's averments on the basis that he had failed to substantiate them and had produced nothing to support his claims.

In short, it was held that he had failed to prove his case.

The appellant's case was that the first respondent was disqualified for appointment as he had seriously violated certain cultural and customary practices. He therefore failed to meet the criteria to become a chief. As for himself, the appellant averred, that, at the third Commission of Inquiry, he was publicly selected as the only remaining candidate without any violations of the traditions, customs, and practices of the Marange clan. He defended his appointment as chief on the basis that he stood in the line of chieftainship of the clan, that he was the oldest surviving father of the clan without any customary or traditional infringements, and that proper consultations had been carried out with the clan leading to his election by the clan as its chief.

In weighing up these opposing positions, the court a quo commended the Minister's efforts in setting up the commissions of inquiry. However, the court found, that, the shortcoming in these efforts was that the people whom the Minister chose to drive the process were not in any way conversant with the customs, culture, and traditions of the Marange people.

In the event, the court found that the appellant had been irregularly appointed as the substantive Chief Marange and ordered that this appointment be set aside. However, having so concluded, the learned judge did not proceed to decree any corrective measure to rectify the irregularity. He simply left the parties to their own initiatives and devices.

What can be gleaned from all of the foregoing is the implied finding that the appellant's appointment, as Chief Marange, was not in accordance with the customs and practices of the Marange clan.

In this respect, therefore, there is some merit in the appellant's fourth ground of appeal, to the extent that the court itself was ill-equipped to venture into that particular field. In effect, the court appears to have overruled the decisions taken by the Minister and the President without having been possessed of the expertise or qualifications necessary to do so.

It is settled law that the courts should not take over the functions of an administrative authority and interfere with its actions or decisions by substituting them or setting them aside: see Affretair (Pvt) Ltd & Anor v M.K. Airline (Pvt) Ltd 1996 (2) ZLR 15 (S)…,.; Zimbabwe School Examinations Council v Mukomeka & Govhati SC10-20…,.

I would extend this broad principle to postulate that, in certain limited circumstances, it might become necessary and appropriate to invoke such judicial restraint, even where the administrative action or decision in question is shown to have been procedurally irregular. This might arise, for instance, where judicial interference would entail serious administrative disruption or result in some grave miscarriage of justice.

In any event, the general principle of judicial non-interference is not immutable and may be departed from in exceptional cases:

(i) Where the end result is a foregone conclusion and it would be a waste of time to remit the matter for corrective action;

(ii) Where further delay would prejudice the applicant;

(iii) Where the extent of bias or incompetence displayed is such that it would be unfair to force the applicant to submit to the same administrative jurisdiction;

(iv) Where the court is in as good a position as the administrative body or functionary to make the appropriate decision.

See Affretair (Pvt) Ltd & Anor v MK Airline (Pvt) Ltd 1996 (2) ZLR 15 (S)…,.; Gurta AG v Gwaradzimba N.O. HH353-13…,.; C.J. Petrow & Co (Pvt) Ltd v Gwaradzimba N.O. HH175-14…,.

In casu, I do not perceive any of the above exceptions as having been applicable to the circumstances before the court a quo.

The remittal of the matter to the Minister for corrective action would not have been a waste of time.

Indeed, corrective action was eminently necessary on the facts of the case. Further delay would not have prejudiced the applicant (the first respondent herein) given the genesis of the succession dispute in 2005 and the protracted period of time over which it had remained unresolved. There was no evidence before the court a quo that the Minister, or the President, had displayed such bias or incompetence as would have operated to subject the applicant to any further administrative unfairness: and, lastly, it cannot possibly be said that the learned judge was sufficiently conversant with the requisite criteria for appointment to the Marange chieftainship, to wit, the prevailing customary principles of succession and the administrative needs of the Marange community (cf. section 3(2)(a) of the Traditional Leaders Act).

There can be no argument against the finding a quo that the Minister acted unprocedurally in establishing and relying upon the recommendations of the various Commissions of Inquiry that were instituted to resolve the succession dispute over the Marange chieftainship.

The most competent body to which this matter should have been assigned, within the broad scheme of section 283 of the Constitution and the Traditional Leaders Act, would have been the Provincial Assembly of Chiefs responsible for the Marange community.

Given the Minister's failure to do so, the most salutary corrective measure would be to remit the matter to him and direct him to consult the Provincial Assembly with a view to seeking its recommendations on the resolution of the succession dispute.

Additionally, it would also be necessary to address the appointment of the appellant as the substantive Chief Marange.

The most obvious remedy in that connection would be to set aside that appointment as having emanated from a gross procedural irregularity. However, this would lead to a lacuna in the leadership of the Marange clan and resultant uncertainty in the administration of the clan's affairs.

In order to obviate this undesirable contingency, it seems to me that the preferable and less disruptive alternative would be to leave the appellant in situ as the clan's chief, albeit in an acting capacity, pending the final resolution of the chieftainship dispute. In my view, this would serve to ensure administrative continuity in the interests of good governance within the Marange community.

Disposition

Counsel for the first respondent submits that there is presently no law providing for the resolution of disputes by Provincial Assemblies.

This position is not entirely correct in light of my earlier interpretation of the continuing applicability, mutatis mutandis, so as to conform with the dictates of section 283 of the Constitution, of sections 35 and 36 of the Traditional Leaders Act [Chapter 29:17].

In any event, counsel for the first respondent accepts that the High Court has inherent jurisdiction to remit the matter to the Minister for onward referral to the Provincial Assembly concerned.

Counsel, for the appellant agrees that sections 35 and 36 of the Traditional Leaders Act afford suitable mechanisms for the resolution of the dispute in casu. He submits that the Minister can lawfully convene the Provincial Assembly and administratively refer the chieftainship dispute in casu to the Provincial Assembly for its recommendations.

I fully concur with that position.

In view of my earlier conclusions, and intended disposition of this matter, the third and fourth grounds of appeal are rendered redundant and do not call for further consideration or determination.

As for costs, given that both the appellant and the first respondent have enjoyed relative success in relation to the first and fourth grounds of appeal, I think it appropriate that each party should bear its own costs, both in the court below and herein on appeal.

In the result, I make the following order:

1. The appeal is partially allowed with each party to bear its own costs.

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

“(i) The appointment of the first respondent, as substantive Chief Marange, be and is hereby set aside.

(ii) The matter is remitted to the second respondent who is hereby directed:

(a) To convene a meeting of the Provincial Assembly of Chiefs responsible for the Marange community, at the earliest available opportunity, to consider and report back to him with its recommendations on the resolution of the dispute concerning the appointment of a substantive Chief Marange; and

(b) To submit the aforesaid recommendations to the third respondent to enable him to resolve the aforesaid dispute in accordance with the provisions of section 3 of the Traditional Leaders Act [Chapter 29:17].

(iii) Pending the resolution by the third respondent of the aforesaid dispute, the first respondent shall perform the functions of acting Chief Marange pursuant to section 4 of the Traditional Leaders Act [Chapter 29:17].

(iv) Each party shall bear its own costs.”

View Appeal
HH557-17 : ZVIDZAI MARANGE vs BERNARD MARANGE and MINISTER OF RURAL DEVELOPMENT, PROMOTION and PRESERVATION OF NATIONAL CULTURE and HERITAGE and PRESIDENT OF ZIMBABWE
Ruled By: MANGOTA J

Chikwavadombo Mastick Marange [“Chikwavadombo”] died on 8 September 2005. He was the substantive Chief Marange. Two persons acted in his place and stead, each in turn, after his death. These were one Ringisai Noah Marange and one Gilbert Marange.

The first respondent eventually succeeded him as Chief Marange.

The process of selecting Chikwavadombo's successor was long and arduous. It commenced at about the time of Chikwavadombo's funeral. It remained in place for some eleven (11) years running. It ended with the installation of the first respondent as Chief Marange. The installation took place on 27 October 2016.

The installation of the first respondent triggered the present application.

The applicant alleged that the first respondent was irregularly and improperly appointed to the position of Chief Marange. He said the incumbent Chief [“incumbent”] was imposed upon the people of Marange. The incumbent was, according to him, not the people's preferred candidate for the position. He stated that the people had chosen him, and not the incumbent, to be their Chief. He averred that the second respondent hand-picked the first respondent and imposed him on the people against the latter's wishes.

He moved the court to review the work of the second respondent and set the same aside, and, by implication, remove the first respondent from his position of Chief for the people of Marange.

The respondents opposed the application.

They agreed with the first respondent's in limine matter. They submitted that the court lacked jurisdiction to hear and determine the application. They anchored their argument on section 283 of the Constitution of Zimbabwe.

They stated that disputes which related to the appointment, removal, and suspension of a Chief should be resolved by the third respondent on the recommendations of the Provincial Assembly of Chiefs through the second respondent. They insisted that the applicant should have taken that route instead of approaching the court. He should, they said, have referred his grievance to the Provincial Assembly of Chiefs for dealing.

They moved the court to dismiss the application.

The application is, in my view, against the second, more that it is against the third respondent. The third respondent was not involved in the selection process which culminated in the nomination of the first respondent as the substantive Chief Marange. He was, in fact, presented with a fait accompli. The second respondent, who commenced the selection process and drove it through to the nomination stage of the first respondent, presented the third respondent with a recommendation upon which the latter had to, and did actually, act. He had no choice but to endorse his signature upon the recommendation of the second respondent. The third respondent operated upon the premise that the second respondent, to whom he assigned the Traditional Leaders Act, would not mislead him.

The respondents missed the point when they submitted that the court lacked jurisdiction to hear and determine the application.

The court does have the requisite jurisdiction to inquire into the conduct of the second respondent. It is, at law, permitted to scrutinise the process which the second respondent commenced and drove right through to the nomination by him of the first respondent as the people of Marange's preferred choice. It should ascertain if the process which brought about the result which the applicant complains of was within, or outside, the law.

The view which the court takes of the matter finds fortification from a reading of section 26 of the High Court Act [Chapter 7:06] [“the Act”]. The section confers power, jurisdiction, and authority on the court to review all proceedings and decisions of inferior courts of justice, tribunals, and administrative authorities within Zimbabwe.

Section 27 of the High Court Act spells the grounds for review. It reads:

“(1) Subject to this Act, and any other law, the grounds on which any proceedings or decision may be brought on review before the High Court shall be -

(a) Absence of jurisdiction on the part of the court, tribunal, or authority concerned;

(b) Interest in the cause, bias, malice or corruption on the part of the person presiding over the court or tribunal concerned or on the part of the authority concerned, as the case may be;

(c) Gross irregularity in the proceedings or the decision.”…,.

It is mentioned, in passing, that, the application was based on sections 26 and 27 of the High Court Act.

The application lays criticism on the manner in which the second respondent went about discharging his duties as the Minister to whom the President of Zimbabwe assigned the Traditional Leaders Act. The work of the second respondent is, to all intents and purposes, an administrative act. He dealt with that work in his capacity as an administrative authority.

That work is, therefore, reviewable by the court. It is reviewable to ascertain if it did not offend any of the above mentioned grounds for review.

It is pertinent to stress that administrative acts are subject to review.

The court has the power, authority, and jurisdiction to ascertain whether or not the acts are compliant with the law. Where they are, they remain undisturbed. Where they are not, the court has the power, and authority, to revisit them by either setting aside the result of the acts or by correcting them so that they remain in sync with the law.

On the merits, the applicant gave a clear and concise narration of the events which led to the appointment of the first respondent to the position of Chief Marange. His version was easy to follow. He made every effort to show that he was the preferred candidate for the position of Chief Marange.

He attached to his application the supporting affidavits of nine (9) persons.

He also attached to the same a letter which the second respondent allegedly addressed to the Office of the Attorney General on 21 April 2015 and a Cabinet Minute which the second respondent purportedly drew on 4 May 2016.

He produced no further evidence which supported his averments apart from the supporting affidavits of the nine (9) persons, the letter, and the purported Cabinet Minute.

His case was, therefore, akin to a still birth.

The supporting affidavits of the nine persons were deposed to on 1 November 2016. Four (4) of the nine (9) persons did, on 10 January 2017, depose to affidavits in which they denied having ever deposed to affidavits in support of the application. They stated that the signatures which appeared on the supporting affidavits of 1 November, 2016 did not belong to them. They denied having ever appeared before any Commissioner of Oaths to sign the affidavits.

Two (2) of the four (4) did, on 26 February 2017, depose to affidavits stating that their depositions to the affidavits of 10 January 2017 were made by them under duress. They said they were taken from their rural home to Harare where they were accused by an unidentified, physically-imposing man, of undermining the authority of the Government by supporting the applicant. They said they were told to make amends and were given drafted affidavits which they were made to sign and they signed those.

Three (3) of the four (4) did, on 14 March 2017, depose to affidavits in which they dissociated themselves from the applicant's case and cause.

It is evident, from the foregoing, that the deponents were used as a means to an end. They were, no doubt, at the mercy of the applicant and the first respondent. They went along with whoever approached and sought their support.

No weight can be attached to affidavits of persons who swang from one party to the other like a pendilum. The affidavits told a lie about themselves. In telling the lie as they did, they revealed the pressure to which the deponents were subjected in the parties' respective effort to ascend to the throne.

The supporting affidavits which the applicant attached to the application do not, therefore, support anything let alone his case.

The letter which the second respondent allegedly addressed to the Office of the Attorney General and the purported Cabinet Minute do carry very little, if any, weight. Neither the letter nor the Cabinet Minute was signed by anyone. Their origin was not clarified.

The applicant did not tell the court what method he used to access the two documents. They were not for his attention or consumption. They are privileged documents which are for the attention of no one else but Cabinet.

The net effect of the above analysed matters is that the applicant's case stood on nothing.

He made allegations which he failed to substantiate.

He said he was the people of Marange's choice for the position of Chief. He, however, produced nothing which supported his claim(s).

It is trite that he who alleges must prove. The applicant alleged. He did not prove.

The applicant's case would have been more convincing than it currently is if he attached to his application minutes of meetings which members of the house of Marange held in their effort to select the next Chief Marange. The minutes would have shown the members' deliberations as well as the person who emerged as the people's preferred choice for each meeting which was held. These would have constituted concrete evidence which would have left the court with little, if any, doubt as to the members' preferred choice.

Whilst the applicant could not show that he was the people's favourite, he was able to show the existence of a dispute which reared its ugly head in the selection process.

The dispute remained in the process from the time that the second respondent became alive to it to date. It could not be, and was not, wished away. The nomination of the first, by the second respondent did not put it to rest. It, if anything, escalated it resulting in the present application wherein the applicant moves the court to scrutinise the second respondent's work.

The first respondent, in his wisdom, attached to his opposing papers some minutes of meetings of members of the house of Marange. He attached minutes of the meeting of 1 March 2013 as well as those of 15 February 2013. He called them Annexures B and C respectively. The contents of the annexures showed that the applicant was, at some point, kicked out of the race. The relevant portion of the first annexure reads:

“It was agreed that if the Zibaba is unclean then he is not eligible to become chief. The chairperson confirmed about the houses that are unclean…,. The houses came out as Dzoma and Manjengwa houses (sic) committed incest…,. As a way forward, the houses agreed that they will continue the selection process using the Zvipomerwa method. The house found to be unclean will be out of the race…,.”

Minutes of deliberations of the meeting of 15 February 2013 read, in part, as follows:

“…, they said those Madzibaba should be clean…, of which the houses like Dzoma, Manjengwa and Muchisi were alleged to have some incest cases.”

The first respondent was wise enough to produce evidence which tended to show that the applicant fell out of the race. He selected what he believed would damage the applicant's claim. He left out any minutes which he considered to have been supportive of the applicant's case. I say so because the members held more than two meetings in their effort to select, from among them, a person who should have become chief Marange. Any minutes, therefore, which supported the applicant's cause would have assisted him to substantiate his claims.

That the applicant was a serious contender in the race to the chieftainship of Marange requires little, if any, debate. He stated as much. The second respondent supported his statement in the mentioned regard. He made a concession in paragraph 40 of his opposing affidavit. He said “it is admitted that at some point during this lengthy selection process applicant was nominated but rejected before appointment owing to infractions stated above.”

The second respondent held not less than five (5) meetings with the people of Marange. He held those in an effort to find a candidate whom the people would accept as their chief. He held the meetings through his representatives. The meetings did not produce a clear candidate whom the second respondent could recommend to the third respondent for appointment to the position of Chief Marange.

The second respondent's next move was to establish Commissions of Inquiry.

Three such Commissions were set up, each in turn. The first one's work took place in June 2014. The second one's work was in August 2014. The third one did its work on an unnamed date but after August 2014.

The second respondent's assertions were that the June 2014 Commission of Inquiry was set up owing to the inconclusive nature of the nomination of the applicant as chief. He said the August 2014 Commission was established because the previous Commission was inconclusive and did not produce a candidate.

It was evident to the second respondent that the position of Chief Marange was a hotly contested matter. He stated as much. He said the Marange chieftainship was bitterly contested. He stated that Government had, therefore, to be certain on the right candidate before making the appointment.

The second respondent's effort was, to some extent, commendable.

Its shortcoming was that the people whom he chose to drive the process were not in any way conversant with the customs, cultures, and traditions of the people of Marange.

Both of them, Mukwaira and Felix Chikovo, had to inquire from the Marange families the latter's succession customs with regard to the issue of chieftainship. As inquirers, they did what they thought was best for the people. They, in the process, cooked a raw deal which the people of Marange, or at least some of them, refused to accept.

The dispute, which should have been effectively resolved, centred on two contenders. These were the applicant and the first respondent.

The dispute could easily have been conclusively resolved if the second respondent had acted in terms of section 283(c)(ii) of the Constitution of Zimbabwe. He should, in other words, have referred the same to the Provincial Assembly of Chiefs.

It is one of the functions of the Provincial Assembly of Chiefs to consider and report on any matter which the second respondent refers to it.

Reference is made in this regard to section 42(3) of the Traditional Leaders Act.

The Provincial Assembly of Chiefs comprises all chiefs of a given Province. That Provincial Assembly is better qualified than anyone else to know the customs, traditions, and cultures of the people of their Province. They know what is and what is not taboo. They are, after all, the recognised custodians of the cultures and traditions as well as customs of all persons who inhabit their Province.

The work and recommendations of the Provincial Assembly of Chiefs for the Province of Manicaland would properly have guided the second respondent on the best course of action for him to take. The Provincial Assembly of Chiefs would have looked at the contenders' profiles, each in turn, the infractions they were alleged to have committed, and any other matter which was relevant to the resolution of the dispute. It would have made its recommendations upon which the second and third respondents would have properly acted in a conclusive manner.

The contenders' dispute appeared to have surfaced at about the time of the funeral of Chikwavadombo. It, however, became apparent to the second respondent in 2008 and the subsequent years. The method which he adopted for a resolution of the same, prior to the birth of the country's current Constitution, was above board. However, when the dispute spilled into the promulgation of the Constitution of Zimbabwe Amendment [No.20] Act of 2013 his work became a lot easier than it was during the old Constitution.

The second respondent should have realised that he could not continue to employ the old method of resolving the dispute. He should have realised that section 283 of the new Constitution offered him a clear guide which he could not ignore.

The drafters of the new Constitution made every effort to have disputes of the present nature referred to the custodians of people of the Province's cultures, customs, and traditions. They realized that such custodians are better placed than any outsider in interpreting vague situations which tend to arise on matters of customs and traditions and resolving disputes which, more often than not, tend to arise when a person, or persons, aspire(s) to be appointed to the position of chief of a people. They, therefore, stated, in unequivocal terms, that, such disputes be resolved by the President on the recommendation of the Provincial Assembly of Chiefs through the Minister responsible for traditional leaders, the second respondent in casu.

The constitutional provision makes the second respondent's work a lot easier than it was in the past.

The moment he realizes that a dispute which relates to the appointment to, suspension, succession and/or removal of, a person from, the position of chief is at hand, he should refer such to the Provincial Assembly of Chiefs for its attention. His next move is to receive the Provincial Assembly of Chiefs' recommendation which he will, in turn, forward to the President of Zimbabwe who will act upon the same.

The route which the respondents urged the applicant to take in casu is the same route which the second respondent should have taken when he became alive to the dispute which existed between the applicant and the first respondent.

Section 283 of the Constitution was already in place when he nominated and recommended the first, to the third, respondent for appointment to the position of Chief Marange. The Commissions of Inquiry which the second respondent established in June and August 2014 are not provided for in the Traditional Leaders Act let alone in the current Constitution of Zimbabwe. They were illegally set up and the result of their work was or is a nullity. It is at one such Commission of Inquiry that the first respondent was identified as a suitable candidate for the position of Chief Marange. The work of the Commission which identified him as such offended section 283 of the Constitution of Zimbabwe.

The Commission acted outside the law and so did the second respondent. He did not have the jurisdiction to act as he did. His work was ultra vires the Constitution.

The Constitution is the supreme law of Zimbabwe. Any law, practice, custom or conduct which is inconsistent with it is invalid to the extent of the inconsistency. The doctrine of supremacy of the Constitution is sacrosanct. It is immutable.

The work of the second respondent was fraught with an illegality. It is invalid. It is a nullity. It cannot, therefore, stand.

The long and short of the stated position is that the event of 27 October 2016 should be undone.

The second respondent, who is already alive to the dispute of the applicant and the first respondent, will have to revisit the matter which relates to the appointment of substantive Chief Marange. He is, in the mentioned regard, properly guided by section 283 of the Constitution of Zimbabwe as read with section 42(3)(b) of the Traditional Leaders Act.

It is not known when the Provincial Assembly of Chiefs, to whom the second respondent will, in terms of the law, refer the dispute, will complete its work. Paragraph 2 of the draft order which places an obligation on the third respondent to appoint a substantive chief within sixty (60) days of the date of the order cannot stand. The paragraph is, therefore, struck out. The matter which relates to that aspect of the process is better left open than closed.

The court has considered all the circumstances of this case. It is satisfied that the applicant proved his case on a balance of probabilities. It is, accordingly, ordered that:

1. The appointment of the first respondent as the substantive Chief Marange be and is hereby set aside.

2. The first and second respondents shall pay the costs of this application.

SC02-21 : EDDIES PFUGARI (PVT) LTD and EDWARD NYANYIWA vs KNOWE RESIDENTS AND RATEPAYERS ASSOCIATION and NORTON TOWN COUNCIL
Ruled By: PATEL JA, BHUNU JA and BERE JA

This is an appeal against the judgment of the High Court granting an application for specific performance lodged by the first respondent against the appellants. Apart from granting the relief sought, including the payment of damages in the alternative, the court a quo also ordered the appellants to pay costs ...

Background

The first respondent is an association of residents of the Knowe Housing Development based in the town of Norton. These residents purchased Stands on the development site from the first appellant whose business is to develop and sell housing Stands.

The second appellant is apparently the only active director of the first appellant.

The second respondent is the Norton Town Council. It did not appear at the hearing of this appeal, having filed heads of argument indicating that it would abide by the decision of this Court.

The first appellant, as the owner and seller of Lot 2 of Knowe Suburb, entered into sale agreements with the first respondent's members in 1998 (Phase 2) and later in 2003 (Phase 3). The Phase 2 residents complied with their respective agreements by paying the first appellant in full over a period of 30 months. The Phase 3 residents also duly complied by paying the first appellant in full within the agreed period of 60 months that ended on 1 February 2008.

The first respondent averred that the first appellant had breached its contract of sale with the Knowe residents. It filed an application for specific performance or the payment of damages in the alternative.

The appellants opposed the application on the merits and also raised three points in limine at the hearing a quo.

High Court Judgment

The court a quo dismissed all three points in limine.

As regards the first point, relating to prescription, the court found that the permits granted to the first appellant did not give any time limit within which the infrastructural development was to be completed and that the contracts with the residents did not specify any time limits for suing the first appellant. Whatever was to be done by the first appellant was to be done within a reasonable time.

With respect to the second point, the court found that there were no material disputes of fact and that, therefore, it was proper for the first respondent to proceed by way of application rather than by way of action.

Lastly, the court dismissed the third point objecting to the citation of the second appellant in his personal capacity on the basis that he was responsible for the first appellant's administrative affairs.

On the merits, the court a quo found that the members of the first respondent had duly performed their part of the agreements. Conversely, the first appellant had performed some part of the agreements but had not fully complied with the agreements and development permits. The court was not satisfied that this failure to perform was mainly because of inflation. The court further found that the first appellant had failed to establish that performance was now impossible in the era of dollarisation.

If the first appellant had serviced the Stands at the time the purchase prices were paid, between 1998 and 2008, there would have been no difficulty in the performance of the contracts. The court rejected the defence of impossibility of performance on the basis that any hardships now encountered by the appellants were self-created.

Finally, the court held, that, if the appellants were unable to comply with an order for specific performance, they must, in the alternative, pay damages.

In the event, the court ordered the appellants to fully service the Stands in Phases 2 and 3 within 90 days to the second respondent's satisfaction and specifications. The latter was ordered to ensure that the relevant statutory requirements were met. Alternatively, the appellants were ordered to pay the sum of US$192,901,995 to the first respondent's members within 30 days. If they failed to pay, the Sheriff was authorised to attach and sell the appellants' property in execution in satisfaction of the damages awarded. Lastly, the appellants were ordered to pay the costs of suit on an attorney and client scale.

Grounds of Appeal and Relief Sought

The 10 grounds of appeal hereunder are unduly prolix and repetitive. They attack the judgment a quo on the following broad bases:

(i) The appellants were not in breach of their obligations in the absence of a finding as to the time when performance was due, and, therefore, the application a quo was premature and not enforceable.

(ii) The claims in casu were prescribed following the execution of their obligations by the residents, and, in that respect, the court misconstrued the first appellant's contractual obligations and its duties in terms of the permits issued by the second respondent.

(iii) The claim for damages required the quantification of damages by way of action, and, consequently, the claim for damages was not proven according to law.

(iv) The court erred in ordering the second appellant to pay damages personally, and, in so doing, it mis-applied the doctrine of piercing the corporate veil.

(v) The court failed to deal with and pronounce upon the defence of currency nominalism and ordered the payment of damages in the currency of circulation and not the currency of performance.

(vi) The court improperly failed to consider the feasibility of performance against the defence of supervening impossibility.

The appellants pray that the appeal be allowed with costs and that the judgment a quo be set aside and substituted with an order dismissing the application with costs.

At the hearing of the appeal, counsel for the appellants moved an amendment to the relief sought, substituting the prayer for dismissal with one for remittal to the court a quo. Counsel for the first respondent had no difficulty with the prayer being substituted as amended. The prayer was accordingly amended, by consent, to provide for the remittal of the matter rather than the dismissal of the application a quo....,.

Quantification of Damages

As regards the quantification of damages a quo (calculated in the sum of US$192,901,995), counsel for the appellants submits that the court did not properly deal with this aspect inasmuch as it required the determination of factual issues. The matter should therefore be remitted for trial on this aspect.

Counsel for the first respondent concedes that the quantification of damages raises questions of evidence and that the approach of the court a quo in this respect was erroneous. She agrees that the matter be remitted for trial but only on this narrow issue.

I fully agree with both counsel.

The quantification of damages payable to the first respondent's members clearly required the adduction of relevant evidence. It should not have been dealt with on motion but by way of action. Consequently, this is an aspect that must be remitted to the court a quo for trial.

In the premises, the fifth and sixth grounds of appeal are obviously meritorious and must therefore be upheld.

In light of the remittal of this aspect, the ninth ground of appeal, challenging the grant of damages in United States dollars, becomes redundant and must fall away....,.

The appellants have succeeded in sustaining only two of their grounds of appeal, i.e. grounds five and six pertaining to the erroneous basis upon which the court a quo proceeded to quantify and award the alternative claim for damages.

As I have already stated, this will entail the remittal of the matter to the court below to quantify the damages claim by way of action proceedings. It will also be necessary for the court, after consulting the parties, to issue specific directions on the procedure to be followed for that purpose....,.

1....,.

2....,.

3....,.

4. The matter is remitted to the court a quo to determine, by way of trial proceedings, the first respondent's alternative claim for damages.

5. For the purposes of conducting the trial proceedings referred to in paragraph 4 above, the court a quo shall issue such directions as may be necessary and appropriate.

HH965-15 : CONPLANT TECHNOLOGY (PVT) LTD vs WENTSPRING INVESTMENTS (PVT) LTD
Ruled By: MAFUSIRE J

The trial in this matter was held up by a preliminary argument on a special plea. The central question was whether or not the trial should be stayed and the matter referred to arbitration in terms of an arbitration clause in the contract between the parties upon which the plaintiff sued the defendant.

I reserved judgment. This now is my judgment.

The plaintiff's claim was for payment of a sum of money in respect of labour and materials supplied to, for and on behalf of the defendant, at the defendant's special instance and request. The allegations were that following a written contract between the parties, the plaintiff had been contracted, by the defendant, to install a water pump station, to procure and install water pumps thereat, and to connect them to an existing water reticulation system. The plaintiff claimed it had done the job in accordance with the contract but that the defendant had neglected to pay.

The cost of labour and material amounted to US$32,960. The plaintiff also said it was due a commission in the sum of US$3,296. It issued summons for payment of these two amounts.

The defendant filed a joint special plea and plea on the merits.

In the special plea, it said there was an arbitration clause in the agreement that obliged the parties to settle any dispute between them by arbitration.

On the merits, it said there was a dispute.

In essence, and in summary, the defendant averred, that, contrary to its obligations in terms of the contract, the plaintiff had circumvented the local authority in the procurement of the water pumps; that despite holding itself out as the expert in the field, the plaintiff had procured the wrong pumps; that the pumps had been rejected by the local authority; and, that owing to such breach by the plaintiff, the defendant had cancelled the contract.

The plaintiff's responses to the defendant's special plea on arbitration were fourfold....,.

(i)...,.

(ii)...,.

(iii) The plaintiff's third ground was predicated on the decision of this court in Shell Zimbabwe (Pvt) Ltd v Zimsa (Pvt) Ltd 2007 (2) ZLR 366 (H).

It was argued, that, the arbitration clause in the agreement had not been intended by the parties to be the procedure of first instance in, or the primary forum for, resolving disputes, because in that contract, arbitration had to be preceded by adjudication and that arbitration was an appellate process. As such, it was argued, the arbitration clause could not have the effect of forcing, or persuading the court, to exercise its discretion in favour of referring the matter to arbitration....,.

To the plaintiff's third ground, that, in line with the decision in Shell Zimbabwe (Pvt) Ltd v Zimsa (Pvt) Ltd 2007 (2) ZLR 366 (H), that, in the contract, arbitration was not the procedure of first instance in the dispute resolution, the defendant argued that that case had been wrongly decided because the decision had run counter to the settled legal position and that it had to be confined to its own set of facts.

The defendant cited cases of its own to support its position.

Those cases held that where there is an arbitration clause in a contract, the court has to refer the dispute to arbitration if one or other of the parties makes such a request. The cases cited by the defendant included Independence Mining (Pvt) Ltd v Fawcett Security Operations (Pvt) Ltd 1991 (1) ZLR 268 (H); Zimbabwe Broadcasting Corporation v Flame Lily Broadcasting (Pvt) Ltd 1999 (2) ZLR 448 (H); PTA Bank v Elanne (Pvt) Ltd & Ors 2000 (1) ZLR 156 (H); and Capital Alliance (Pvt) Ltd v Renaissance Merchant Bank Ltd & Ors 2006 (2) ZLR 232 (H)....,.

[a] Arbitration clause in a contract

Article 8(1) of the Model Law, the First Schedule to the Arbitration Act [Chapter 7:15], states:

“A court of law before which proceedings are brought in a matter which is the subject of an arbitration agreement, shall, if a party so requests, not later than when submitting his first statement on the substance of the dispute, stay those proceedings and refer the parties to arbitration unless it finds that the agreement is null and void, inoperative, or incapable of being performed.”

In my view, and in my own words, it is now settled, that, a clause in a contract to refer a dispute to arbitration is binding on the parties. A party is not at liberty to resile from that clause any time he may wish to do so.

In terms of Article 8 of the Model Law, the First Schedule of the Arbitration Act, where a party makes a timeous request for referral to arbitration, the court has to stay the matter and refer the dispute to arbitration unless the agreement is null and void, or is inoperative, or is incapable of being performed: see Zimbabwe Broadcasting Corporation v Flame Lily Broadcasting (Pvt) Ltd 1999 (2) ZLR 448 (H); Waste Management Services v City of Harare 2000 [1] ZLR 172 (H); and Capital Alliance (Pvt) Ltd v Renaissance Merchant Bank Ltd & Ors 2006 (2) ZLR 232 (H).

Thus, the one condition in Article 8 of the Model Law, the First Schedule to the Arbitration Act for referral is that there must exist a dispute between the parties.

In PTA Bank v Elanne (Pvt) Ltd & Ors 2000 (1) ZLR 156 (H), where the defendant had merely asked for further particulars, which had been furnished, but had not said anything else about the existence or otherwise of a dispute, except in counsel's heads of argument, the court declined the request for referral. It said that, among other things, since no dispute had been established, there was nothing to refer to arbitration.

In Zimbabwe Broadcasting Corporation v Flame Lily Broadcasting (Pvt) Ltd 1999 (2) ZLR 448 (H) the court initially declined to refer the matter to arbitration where the defendant had merely made the request before pleading to the merits. It was only upon the defendant's pleading to the merits that a dispute became apparent, thereby leading the court to exercise its discretion in favour of staying the proceedings and referring the dispute to arbitration.

In casu, the defendant met the one condition referred to above. It has pleaded on the merits.

There has emerged a clear dispute. It is this: is the plaintiff entitled to payment? Did it breach the contract by circumventing the local authorities? Did it supply the wrong pumps?

Another condition in Article 8 of the Arbitration Act, for referral to arbitration, is that the request for such referral must be made timeously. The Article says it must be made “…, not later than when submitting…, [the]…, first statement on the substance of the dispute.”

The defendant filed a special plea, in which the request of referral was made, and, in the same document, pleaded over to the merits, setting out the dispute.

Therefore, this other condition was also met.

Yet another condition in Article 8 of the Arbitration Act, for referral to arbitration, is that the arbitration agreement must not be null and void, or inoperative, or incapable of being performed.

It was common cause that this was not the case in this matter.

It did not form part of the plaintiff's grounds for resisting referral.

At any rate, the question whether the dispute between the parties to a contract falls within the ambit of an arbitration clause is primarily a question of interpretation of the agreement, in particular, the arbitration clause itself: see Independence Mining (Pvt) Ltd v Fawcett Security Operations (Pvt) Ltd 1991 (1) ZLR 268 (H); PTA Bank v Elanne (Pvt) Ltd & Ors 2000 (1) ZLR 156 (H); and Zimbabwe Broadcasting Corporation v Flame Lily Broadcasting (Pvt) Ltd 1999 (2) ZLR 448 (H).

Furthermore, once it is established that the dispute falls within the ambit of the arbitration clause, the onus to show why the court proceedings should not be stayed rests on the party challenging the reference to arbitration, i.e., the plaintiff in this case: see Capital Alliance (Pvt) Ltd v Renaissance Merchant Bank Ltd & Ors 2006 (2) ZLR 232 (H)....,.

[d] Arbitration was not the dispute resolution procedure of first instance: The decision in Shell Zimbabwe (Pvt) Ltd v Zimsa (Pvt) Ltd 2007 (2) ZLR 366 (H)

On this ground, the plaintiff simply relied on the decision of this court in Shell Zimbabwe (Pvt) Ltd v Zimsa (Pvt) Ltd 2007 (2) ZLR 366 (H).

Such a stance was understandable because the circumstances of this case are somewhat on all fours with those in that case.

The arbitration clause in Shell Zimbabwe (Pvt) Ltd v Zimsa (Pvt) Ltd 2007 (2) ZLR 366 (H), in part, read as follows:

“14.1 Any dispute, question or difference arising at any time between the parties to this agreement out of or in regard to any matter arising out of the rights and duties of the parties hereto, or the interpretation of or the rectification of this agreement shall in the first instance, be submitted to and decided by mediation on notice given by either party to the other in terms of this clause.

14.2…,.

14.3 In the event that mediation does not resolve the dispute within seven days time period referred to in sub-clause [2] above, and the parties fail to agree on extended time for mediation, then either party shall be entitled to refer the matter to arbitration, which shall be conducted in terms of the rules and procedures set out in the Arbitration Act of Zimbabwe.”

In the present case, the arbitration agreement was cast as follows:

“42.1 Any dispute arising out of this agreement shall be resolved in accordance with this clause.

42.2…,.

42.3 When any dispute referred to in clause 42.1 arises, which cannot be resolved between the parties, it shall be referred, in writing, to and settled by the adjudicator.

42.4…,.

42.5…,.

42.6 The adjudicator settles the dispute as an independent adjudicator and not as an arbitrator. The adjudicator's decision is enforceable as a matter of contractual obligation between the parties.

42.7…,.

42.8…,.

42. 9…,.

42.10 If, after the adjudicator notifies the decision, a party is dissatisfied, that party may give notice to the other party of an intention to refer the matter to arbitration.

42.11…,.

42.12…,.

42.13 No matter may be referred to arbitration that has not previously been the subject of a decision by the adjudicator.

42.14…,.

42.15…,.

42.16…,.”

Thus, whilst in Shell Zimbabwe (Pvt) Ltd v Zimsa (Pvt) Ltd 2007 (2) ZLR 366 (H) the parties preferred the term “mediation” as the process to precede arbitration, in casu, they preferred “adjudication.”

In Shell Zimbabwe (Pvt) Ltd v Zimsa (Pvt) Ltd 2007 (2) ZLR 366 (H) MAKARAU JP…, stressed the inherent jurisdiction of this court, and the readiness with which it must hold itself out to dispense justice to all those who seek it. The learned Judge President refused to stay the proceedings for reference to arbitration.

The ratio decidendi of her Ladyship's decision seemed two-pronged:

(i) The one was that for an arbitration clause in an agreement to have the effect of staying court proceedings, in terms of the Arbitration Act, the clause must be clear and unequivocal, and the parties must intend arbitration to be the procedure of first instance in resolving their dispute.

(ii) The other was that the jurisprudential grounds underlying arbitration as an alternative dispute resolution mechanism are, firstly, the apparent speed with which arbitration can yield results, and, secondly, the contractual autonomy of the parties, inter alia, to resolve differences that may occur between them as they perform their obligations under the contract.

In the final analysis, the court held, that, the parties did not intend arbitration to be the first choice dispute resolution mechanism since they had chosen mediation in the first instance.

The court went further to suggest, that, the agreement between the parties was one subject to a mediation clause, as opposed, I presume, to an arbitration clause.

With the greatest of respect, I find myself unable to agree with the approach in Shell Zimbabwe (Pvt) Ltd v Zimsa (Pvt) Ltd 2007 (2) ZLR 366 (H).

In my view, to sever mediation, as in Shell Zimbabwe (Pvt) Ltd v Zimsa (Pvt) Ltd 2007 (2) ZLR 366 (H), or adjudication, as in the present case, from arbitration, and treat the processes as two distinct and stand-alone dispute resolution mechanisms in their own right, cannot be correct.

It is true, that, in the present case, the arbitration agreement said that the adjudicator's decision would be enforceable. However, this statement must not be read in isolation. The sub-clause went further to say, enforceable “…, as a matter of contractual obligation between the parties.”

In other words, and in my view, there was a consciousness by the parties, in selecting that kind of wording, that adjudication was not, by itself, the end process the outcome of which could be enforced through the judicial process as one would with an arbitral award.

Rather, mediation, or adjudication, was merely a means to an end.

Mediation, or adjudication, was the footpath to arbitration. No party entered arbitration except through mediation or adjudication.

The above point seems fortified by the sentence that preceded the statement about the adjudicator's decision being enforceable. It said the adjudicator settled the dispute “…, as an independent adjudicator and not as an arbitrator.”

In other words, the parties were alive to the fact that adjudication, on its own, was not a dispute resolution mechanism. If it failed, the matter would have to be referred to arbitration.

Adjudication could be cheaper, quicker, simpler, less formal and more expedient in the resolution of less contentious disputes. The parties obviously wished to give themselves that opportunity.

I consider that an adjudication, or mediation process, would be like a pre-trial conference in a trial procedure. Parties meet before a third party – i.e. adjudicator, mediator, or Judge in Chambers. The third party acts as an umpire. The proceedings are less formal.

The major aim is to enable the parties themselves to settle the dispute, after affording them an equal chance to ventilate their respective sides of the case. Failing settlement, the adjudication, or mediation, or pre-trial process, identifies and streamlines the real issues for final determination by arbitration or trial. It is only the outcome of the arbitration process, or of the trial, that is eventually enforceable through the judicial process.

As far as the pre-arbitration process was concerned, i.e. mediation in Shell Zimbabwe (Pvt) Ltd v Zimsa (Pvt) Ltd 2007 (2) ZLR 366 (H), and adjudication in the present case, I perceived no material difference. The adjudication clause in the present case was just cast in more elaborate terms than the mediation clause in Shell Zimbabwe (Pvt) Ltd v Zimsa (Pvt) Ltd 2007 (2) ZLR 366 (H).

In Shell Zimbabwe (Pvt) Ltd v Zimsa (Pvt) Ltd 2007 (2) ZLR 366 (H), it was noted, that, whilst arbitration resolved disputes faster than the litigation route, it seemed not to have been the case in that particular matter.

I agree, with respect, with the jurisprudential bases underlying the place and role of arbitration as identified by the learned Judge President. However, I would also think and add, that, arbitration agreements are generally industry specific.

In Shell Zimbabwe (Pvt) Ltd v Zimsa (Pvt) Ltd 2007 (2) ZLR 366 (H), the agreement was in respect of the lease of an oil station.

In Capital Alliance (Pvt) Ltd v Renaissance Merchant Bank Ltd & Ors 2006 (2) ZLR 232 (H) it was in relation to multiple commercial transactions concerning the transfer and pledge of multiple classes of shares in multiple transactions that included debt equity swap arrangements.

In Zimbabwe Broadcasting Corporation v Flame Lily Broadcasting (Pvt) Ltd 1999 (2) ZLR 448 (H) the agreement was in respect of the rates for air time on a broadcasting channel and the installation of a transmitter for the enhancement of broadcasting signals.

In the present case, the agreement was in respect of the installation of a pump station and suitable water pumps to be connected to the main water reticulation system.

In my view, being industry-specific, arbitration may be a more expedient dispute resolution mechanism, in that, among other things, experts in the fields concerned would generally be chosen for their technical know-how, expertise, and experience to constitute the arbitration tribunal.

Of course, ultimately, the courts always deal with legal issues stemming from such disputes.

However, I imagine that experts in their fields can readily appreciate and blend factual issues much faster, thereby expediting the whole process.

Apparently, that an arbitration agreement can make some other process, such as mediation or adjudication, a condition precedent to arbitration, is not uncommon.

In Waste Management Services v City of Harare 2000 (1) ZLR 172 (H), the arbitration agreement, said, any dispute between the parties had to be referred to an employee of the client first, i.e. the Director of Works, for “…, his or her decision in writing…,” - the client being the City of Harare.

The City of Harare had contracted the plaintiff to undertake its waste management services for a fee. The agreement provided that such decision by the Director of Works would be binding upon the Contractor who was obliged to give effect to it forthwith. Only if the Contractor was dissatisfied with the decision could it request that the issue be referred to arbitration.

The Contractor sued the City of Harare for payment of the unpaid fees. The City of Harare invoked the arbitration clause and sought a stay of the proceedings. The Contractor resisted a referral on the basis that, inter alia, to the extent that the arbitration clause required the dispute to be referred, first, to the Director of Works for his decision, it was contrary to the common law rule of natural justice nemo judex in sua causa (no man shall be judge over his own cause) since the Director of Works was unlikely to be impartial and unbiased.

SMITH J dismissed that argument in the following terms at pp 175H:

“Can it be said that clause 25 of the agreement is contrary to public policy? Had the clause provided that any dispute between the parties was to be referred to the Director of Works and his or her decision would be final, then, clearly, the clause would be contrary to public policy.”

And at p177B–C the learned judge continued as follows:

“The function of the Director of Works under clause 25(a) of the agreement is to try to settle the dispute which has been referred to him. Although it is provided in para (a) of clause 25 that his or her decision shall be binding on WMS and shall forthwith be given effect to by WMS, para (b) goes on to gainsay that provision. It provides that if WMS is dissatisfied with the decision of the Director of Works, it may require that the issue be referred to an arbitrator. Paragraph (a) of clause 25 of the agreement, read by itself, would undoubtedly be contrary to public policy. Since, however, para (b) of that clause remedies the objectionable part of the paragraph, I do not consider that the clause can be regarded as being contrary to public policy.”

In that case, the request for referral to arbitration was granted, the court holding, that, in terms of the Arbitration Act, it had no discretion to decide not to where one party requests the referral and where it is provided for in the contract.

I agree with the approach in Waste Management Services v City of Harare 2000 (1) ZLR 172 (H).

On this particular point, I see no difference between that case and the one before me.

In the circumstances, I find, that, the plaintiff's third ground for resisting a referral to arbitration, on the basis that, in the agreement between the parties, arbitration was not the intended procedure of first instance in the dispute resolution mechanism, was unsound.

I hereby dismiss it.

HHH256-21 : IGNATIUS CHOMBO vs THE STATE
Ruled By: CHATUKUTA J

This is an application referred to by the applicant as “Court Application for the Second Revival of Temporary Variation of Bail Conditions in B1836/19: HH735/19” being made in terms of section 126(1) of the Criminal Procedure and Evidence Act [Chapter 9:07] (the Act).

The application was initially not opposed.

On 3 May 2021, I directed that the parties file supplementary heads of argument on whether or not this court has jurisdiction to determine the application.

It is necessary to remark, at the onset, that this is a novel application.

Counsel for the applicant referred to it, in his oral submissions, as an application sui generis. It is a novel application because neither section 126(1) of the Criminal Procedure and Evidence Act, nor any other provision of the Act for that matter, provides for the ranking of applications where more than one application is filed. Therefore, there cannot be a first, second, or third application for variation of bail conditions. This is simply an application for the alteration of bail conditions. There is no legal basis, either, for the application to be referred to as sui generis. The fact that an order is sought for “the second revival of temporary variation of bail conditions” does not bestow on it a special status.

The application is improperly before me as I do not have the jurisdiction to vary bail orders of the Magistrates Court except on appeal.

The background to the application is that on 27 November 2017, the applicant was denied bail by the Magistrate Court. He appealed against the dismissal and was granted bail by this court on 11 April 2018 in case number HH196-18.

On 16 September 2018, he applied before the Magistrate Court, under case number CRB NO ACC54/19 for a variation of the bail conditions. He, inter alia, applied for the temporary release of his passport to enable him to travel to South Africa for medical attention. The application was dismissed.

The applicant appealed to this court against the dismissal, under case number B1836/17. His appeal was upheld by CHITAPI J. He was granted an order for the variation of the bail condition. The order allowed for the temporary release of the passport on condition that the applicant surrendered the title deed of an immovable property registered in the name of Nimrod Willard Chiminya. The passport was to be returned on or before 3 December 2019.

Upon return of the passport, the title deeds were to be released back to the applicant. Full reasons for the court's decision were rendered in the judgment in case number HH753-19.

On 11 February 2020, the applicant applied before this court for “revival of a temporary variation of the applicant's bail conditions” seeking the release of his passport. The order was granted by FOROMA J on 26 February 2020 on condition the applicant surrendered the same title deeds as in HH753-19. The passport was to be returned on 16 March 2020: and, as in HH753-19, the title deeds were to be returned to the applicant following the surrender of the passport to the Clerk of Court.

There are no reasons for judgement.

The applicant is back seeking the release of his passport, yet again, to enable him to go to South Africa for medical attention. He is seeking a variation of the order granted on appeal under case number HH753-19 (B1836/17). In lieu of the passport, the applicant offers to surrender a title deed for yet another immovable property registered in the name of Pomlic Investments (Pvt) Ltd.

Counsel for the applicant submitted that this court accepted jurisdiction when an order for “revival of a temporary variation of the applicant's bail conditions” was granted by FOROMA J. He submitted that it is contrary to the rule of law for the same court to seek now to question the basis of its jurisdiction involving the same parties and the same matter.

The submissions by counsel for the applicant are unmeritorious.

Jurisdiction is founded on the provisions of the Criminal Procedure and Evidence Act [Chapter 9:07] and not on the basis that another judge assumed jurisdiction.

Counsel for the applicant also submitted that this court has jurisdiction to revive the temporary variation as sought by the applicant in terms of section 126(1) of the Criminal Procedure and Evidence Act as read with section 46(2), 50(1)3(d), 70(1)(a), 76 and 176 of the Constitution of Zimbabwe.

He submitted that when a court sits on appeal it can grant an order on the basis of section 121(5) or its inherent jurisdiction. The context of the application before CHITAPI J, the order he granted, and the reasoning thereof implied that the court was not proceeding in terms of section 121(5) but was exercising its inherent powers. The order under HH753-19 is therefore a High Court order. It can be varied or altered in terms of section 126(1) of the Criminal Procedure and Evidence Act.

The respondent abandoned its concession to the application.

Counsel for the respondent's submissions were on the question whether or not section 126(1) of the Criminal Procedure and Evidence Act provides for the temporary suspension of a bail order.

The submissions are not relevant to the resolution of the question of jurisdiction.

The answer to the question for determination is found in section 121 subsections (5) and (7) of the Criminal Procedure and Evidence Act and in the reasons for judgment and the order issued by CHITAPI J. The subsections provide as follows:

“(5) A judge who hears an appeal in terms of this section may make such order relating to bail or any condition in connection therewith as he considers should have been made by the judge or magistrate whose decision is the subject of the appeal.

(6)…,.

(7) Any order made by a judge in terms of subsection (5) shall be deemed to be the order made in terms of the appropriate section of this Part by the judge or magistrate whose decision was the subject of the appeal.”

A judge dealing with an appeal in terms of section 121 of the Criminal Procedure and Evidence Act is therefore empowered, in subsection (5), to make an order he considers appropriate which should have been made by a magistrate.

The status of that order is provided for in subsection (7). Whatever order the judge makes is deemed to be the order of the magistrate whose decision was the subject of an appeal.

Both subsections are clear and unambiguous. They both relate to an appeal filed in terms of section 121 of the Criminal Procedure and Evidence Act.

A reading of the judgment by CHITAPI J is specific that the judge was considering an appeal made by the applicant in terms of section 121(1) of the Criminal Procedure and Evidence Act. There is nowhere in the judgement that the judge indicated or can be assumed that he was exercising inherent jurisdiction. The order shows that the judge was mindful of subsection (7). Paragraph (a) of the order reads:

“(a) The order of the magistrate, made on 18 September 2019, dismissing the appellant's application for a temporary release of his passport held as a bail condition in case No. CRB 11633/17 as read with case No CRBs 12182/17, 12251-53/17, 2254/18 and 9388/19 is set aside and substituted with the following order.”

The judge set aside the order of the magistrate and substituted it with the new order. The order is couched in clear and unambiguous peremptory terms. The order became the order of the Magistrates Court.

The judge ordered the surrender of the title deed to the immovable property to the Clerk of Court and not to the Registrar of the High Court.

The applicant was aware that the order was an order of the Magistrate Court. He duly complied with the order by surrendering the title deed to the Clerk of Court. He retrieved his passport from the Clerk of Court. Upon his return, he surrendered the passport back to the Clerk of Court and retrieved the title deeds.

It is therefore inexplicable why the applicant has been approaching this court for a variation of an order of a magistrate. He can only approach this court on appeal in the event that he is dissatisfied with the decision of the lower court as he did in case number HH753-19.

The applicant referred to various provisions of the Constitution on the rights of an accused person.

The constitutional provisions are of no relevance to the determination of the question of jurisdiction.

It seems they were referred to so as to give “flavour” to the otherwise unmerited submissions so that the submissions would be high sounding. I therefore find it not necessary to be detained by making any reference to the provisions, suffice to remark that this court is not denying the applicant his right to protection of the Constitution. It is simply pronouncing that the application for the realization of those rights has been made at the wrong forum.

It is this court's finding that this court does not have jurisdiction to entertain the application. The application is improperly before the court. It was ill-conceived and amounts to an abuse of court process.

Applicants in general, and the present applicant in particular, are strongly discouraged from forum shopping, and, in the process, abusing court process.

The application is accordingly struck off the roll.

SC20-22 : NATIONAL SOCIAL SECURITY AUTHORITY vs HOUSING COOPERATION ZIMBABWE (PVT) LTD and PETER CARNEGIE LLOYD N.O.
Ruled By: MAVANGIRA JA, UCHENA JA and CHATUKUTA JA

After hearing the parties on 13 September 2021, we gave our judgment on the matter extempore. Our written reasons for judgment have now been requested by the respondent's legal practitioners. Hereunder appears the judgment that was handed down ex tempore on 13 September 2021.

This is the unanimous decision of this Court.

This is an appeal against the whole judgment of the High Court dismissing an application for the setting aside of an arbitral award and granting an application for registration of that award....,.

The dispute in this matter arose from a contractual agreement in the form of a bespoke housing offtake agreement between the appellant and the first respondent in terms of which the respondent was to build 8,000 housing units for purchase by the appellant. The appellant paid a deposit of US$16 million. The respondent thereafter cancelled the agreement and claimed damages in the sum of US$56,842,364. The dispute was referred to the arbitrator for arbitration. The arbitrator awarded the first respondent damages in the amended sum of US$30 million. The first respondent applied for the registration by the High Court of the arbitral award.

The appellant counter applied for the setting aside of the award.

The court a quo granted the first respondent's application for registration and dismissed the appellant's counter-application.

The appellant appealed to this Court.

In its amended first ground of appeal, the appellant submitted that the first respondent did not attach to its application, in the court a quo, an authenticated arbitral award as required by Article 35(2) of the Arbitration Act [Chapter 7:15].

In their submissions, counsel for the parties argued over the meaning of the word 'authenticate'.

Counsel for the appellant argued that the award issued by the arbitrator has to be authenticated before it can be used for purposes of registration. Counsel for the respondents, on the other hand, argued that the award is authenticated when the arbitrator signs it before furnishing it to the parties.

In our view, to authenticate means to confirm or verify that the existing award is the one issued to the parties by the arbitrator. Authentication does not take place on the signing of the award: authentication is endorsed on the signed original award.

In respect of the dismissal of the application for the setting aside of the award, counsel for the appellant argued that the court a quo did not make a determination on the issue. He submitted that it is a gross irregularity.

Counsel for the respondents referred us to pp.1117–1120 of the record. He submitted that the court a quo determined the issue on those pages.

A reading of those pages does not support his submissions because the court a quo merely referred to the submissions by the parties and to the arbitrator's findings without itself pronouncing its own decision on that issue.

It is trite that failure to determine an issue ventilated before the court is a gross irregularity warranting the setting aside of a court's decision.

In the result; the decision of the court a quo, in respect of registration of the award and dismissal of the application to set aside the award, has to be set aside and the matter remitted to the court a quo before a different Judge for a hearing de novo.

Accordingly, it is ordered as follows:

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

2. The judgment of the court a quo be and is hereby set aside.

3. The matter is remitted to the court a quo for hearing de novo before a different Judge.

SC21-21 : ZIMBABWE UNITED PASSENGER COMPANY vs BEAULAR MASHINGE
Ruled By: MAKARAU JA, GOWORA JA and BERE JA

The power to remit a matter to a lower court or tribunal is a common law power inherent in the High Court and in the court a quo by virtue of section 89 of the Labour Act [Chapter 28.01], used in its discretion and in circumstances where it is not ...

Appealed
SSC25-21 : ROBERT GUMBURA vs THE STATE
Ruled By: BHUNU JA

The applicant approaches this Court in terms of section 123(1)(a)(i) of the Criminal Procedure and Evidence Act [Chapter 9:07] with an application for bail pending appeal.He initially approached the High Court with the same application. The court a quo declined jurisdiction and deferred the application for determination by this Court.Factual ...

The applicant approaches this Court in terms of section 123(1)(a)(i) of the Criminal Procedure and Evidence Act [Chapter 9:07] with an application for bail pending appeal.

He initially approached the High Court with the same application. The court a quo declined jurisdiction and deferred the application for determination by this Court.

Factual Background

The applicant is the owner and pastor of a Christian church. He is a convict serving a 20-year term of imprisonment. He was convicted in the Regional Magistrates Court on four (4) counts of rape as defined in section 65 of the Criminal Procedure and Evidence Act and one (1) count of contravening section 26 of the Censorship and Entertainments Control Act [Chapter 10:04].

The Regional Magistrates' Court sentenced him to 50 years' imprisonment of which 10 years were suspended for a period of 5 years on the usual conditions of good behaviour.

He appealed to a panel of two judges of the court a quo against both conviction and sentence with some measure of success. The appeal against conviction was found to be without merit and dismissed. He was, however, partially successful in respect of the sentence which was reduced to an effective 20-year imprisonment.

Aggrieved by the dismissal of his appeal against conviction he noted an appeal to this Court with leave of the court a quo.

Pending the determination of his appeal to this Court, the appellant applied to a single judge of the court a quo for bail pending appeal. The learned judge a quo declined jurisdiction arguing that sitting as a single judge he was ill-suited to review a judgment of two judges of the same court. In his reasons for judgment…, he reasoned that:

“In my interpretation, the default position is that where an applicant has noted an appeal to the Supreme Court against conviction and sentence on trial by the High Court, or has been sentenced by the High Court, bail pending appeal should be made to a judge of the Supreme Court.

Although the provision speaks to a judge of the Supreme Court or the High Court, the default position is that the Supreme Court judge is the first point of call failing which a High Court judge may determine the application.

Even if I am wrong in my interpretation, a situation may arise, as in the instant case, where I am asked to determine prospects of success on appeal where the High Court, on appeal, exhausted its jurisdiction.

In my respectful view, it is only jurisprudentially proper that a Supreme Court judge should be the one to determine the bail pending appeal where the appeal relates to a judgment of the High Court granted on appeal.

I must come to the conclusion that the interests of justice, and procedural and substantive fairness, dictates that I defer to a judge of the Supreme Court to hear the bail application in terms of section 123(1)(a)(i) of the Criminal Procedure and Evidence Act.”

On the basis of such reasoning, the learned judge a quo issued the following order:

“Consequently, the application for bail pending appeal is struck off the roll. The applicant, if advised, may direct the application for determination by a judge of the Supreme Court.”

Analysis of the facts and the law

With all due respect, the learned judge misconstrued what was required of him in respect of the application before him. He was not being asked to review the judgment of the two-judge panel a quo.

He was simply being asked to determine the applicant's suitability for bail pending appeal without determining the merits of the appeal....,.

In determining whether or not the learned judge a quo had the necessary jurisdiction to hear and determine the application for bail pending appeal against an appeal judgment of the court a quo, it is necessary to traverse and interrogate the jurisdiction of the High Court.

An application for bail is essentially a civil matter founded on a criminal case.

Section 13 of the High Court Act [Chapter 7:06] confers on the court a quo unlimited original jurisdiction over all persons and civil matters in Zimbabwe. Beyond that, it is trite that the High Court has unlimited inherent jurisdiction over both civil and criminal matters save where its jurisdiction is specifically limited by statute. Over and above its inherent jurisdiction, section 171 of the Constitution clothes the High Court with unlimited original jurisdiction over all civil and criminal matters.

The meaning and import of inherent jurisdiction has been the subject of courts and scholarly interpretation.

In Martin Sibanda and Anor v Benson Chinemhute and Anor HH131-04 MAKARAU J…, described the concept in graphic imagery as a building open to all citizenry with all its doors and windows open.

In Dardale Investments (Private) Ltd v Econet Wireless Private) Limited HH656-14 DUBE J weighed in with a simple but comprehensive definition of the concept of inherent jurisdiction when she said:

“Inherent power is unwritten power which superior courts are endowed with. Inherent power gives the court wide ranging and all-embracing powers to deal with any matter that may be placed before them. This means that a court of inherent jurisdiction has default powers which it can exercise in the absence of express power and can deal with all areas of law and all procedural matters involving the administration of justice.”

The learned author, JEROLD TAITZ, The Inherent Jurisdiction of Supreme Court, (Cape Town, South Africa; Juta Publishers 1985) describes inherent jurisdiction as the unwritten power without which the court is unable to function with justice and good reason as a superior court modelled on the lines of an English Superior Court.

It is therefore plain, that, clothed with inherent jurisdiction, the High Court, in the absence of any statutory prohibition, has the necessary jurisdiction to hear and determine an application for bail pending appeal against an appeal judgment of that court.

Statutory jurisdiction of the High Court to determine Bail Pending Appeal

Apart from its inherent jurisdiction, the court a quo is granted specific statutory power to hear and determine applications for bail pending appeal under section 123(1)(a)(i) of the Criminal Procedure and Evidence Act. The section provides as follows:

“Power to admit to Bail Pending Appeal or Review

(1) Subject to this section, a person may be admitted to bail or have his conditions of bail altered —

(a) In the case of a person who has been convicted and sentenced or sentenced by the High Court and who applies for bail —

(i) Pending the determination by the Supreme Court of his appeal; or

(ii) Pending the determination of an application for leave to appeal or for an extension of time within which to apply for such leave; by a judge of the Supreme Court or the High Court;”

As can be seen, the above section grants the relevant courts the power to grant bail pending appeal without excluding or qualifying the High Court's power to grant bail pending appeal.

What this means is that it is at large to exercise its unlimited inherent and statutory jurisdiction to hear and determine any application for bail pending appeal without any let or hindrance.

The learned judge a quo therefore misinterpreted the section to mean that the applicant should first approach the Supreme Court before approaching the High Court.

That interpretation of the law is clearly untenable and illogical as it turns the hierarchy of the courts upside down. This is for the simple reason, that, in terms of section 171 as read with section 169 of the Constitution, the High Court is primarily a court of first instance whereas the Supreme Court is basically an Appellate Court.

Matters naturally flow from the High Court to the Supreme Court and ultimately to the Constitutional Court.

Doing otherwise, as suggested by the learned judge a quo, will be contrary to law and against common sense and logic; for one does not climb a tree from the top but from the bottom going up.

Likewise, cases must start from the lower courts going to the higher courts.

The learned judge a quo was therefore duty bound to complete the application before him without abdicating his responsibility.

In any case, there is no law which permits the learned judge to defer uncompleted bail matters before him for adjudication by this Court as if it was a court of first instance. The deferment was therefore grossly irregular, unprocedural, and contrary to law.

Disposition

That being the case, the learned judge misdirected himself and fell into grave error. His order, deferring the application to this Court cannot stand on account of serious irregularity. Having said that, it will be necessary to invoke the provisions of section 25(2) of the Supreme Court Act [Chapter 7:13] and set aside the order of the court a quo.

The section confers jurisdiction on this Court to intervene, on review, to correct such irregularities whenever they come to this Court's attention.

In the result, it is ordered that:

1. The court a quo's order, declining jurisdiction and deferring the application for bail pending appeal to this Court, be and is hereby set aside.

2. The matter be and is hereby remitted to the court a quo for determination of the application for bail pending appeal.

SC26-21 : JOSEPH LUNGU and OTHERS vs RESERVE BANK OF ZIMBABWE
Ruled By: GUVAVA JA, MAVANGIRA JA and MAKONI JA

On 26 January 2017, this Court, in SC01-17, adjudicating over the parties' dispute, remitted the matter to the Labour Court (the court a quo) for a determination of the following issues:

“To determine, on the basis of specific provisions of the Works Council Agreement concluded in September 2010, and the minutes accompanying the Agreement, and having regard to sworn evidence from the signatories to the agreement, whether or not the salaries and benefits stipulated in that agreement were intended to apply to the appellants.”

After considering the parties' submissions, and evidence led, the court a quo dismissed the appellants' claim against the respondent. The court a quo held that the appellants failed to discharge the onus on them of proving that they were covered by the Works Council Agreement upon which their claim of salaries and benefits was founded.

This is an appeal against that judgment.

FACTUAL BACKGROUND

The appellants are 153 former employees of the respondent who were employed as security guards on fixed-term contracts renewable every three months.

The period of employment ranged from 2007 and 2008 up until January and April 2011 when their contracts expired by effluxion of time and were not renewed.

In July 2010, the respondent, 1,078 of its employees, and its workers' committee approached an arbitrator (Nasho) in a bid to negotiate the regularisation of the employees' contracts in line with the new multi-currency regime and to ascertain the salary arrears due to the respondent's employees.

Arbitrator Nasho ordered the payment of back-pay from 1 March 2009 to the date of the award, in line with the multi-currency system.

In accordance with that award, the parties concluded a Works Council Agreement, on 15 September 2010, which set the back pay due to all employees of the respondent and the salary structure for non-managerial employees from 1 January 2010 onwards. It was agreed that all employees across the board, for the period of 1 March 2009 to 31 December 2009, were to be paid a net salary of $500 per month.

Following this agreement, and in a different matter, the appellants challenged the termination of their employment on the basis that their contracts had become permanent upon repeated renewal.

A second arbitrator (Mugumisi) dismissed their claim of unfair dismissal on 4 April 2012. On appeal, the arbitral award was upheld by the Labour Court.

On 10 December 2012, following the dismissal of their claim by arbitrator Mugumisi, and as confirmed by the Labour Court, the appellants filed another claim for the payment of arrear salaries and benefits which was dealt with by the third arbitrator (Mambara) who awarded the payment of arrear salary and benefits, in accordance with the 2010 Works Council Agreement, from 1 January 2010 to the date when each claimants' contract of employment was terminated.

Dissatisfied by that decision, the respondent applied to the Labour Court for a review of the award. The Labour Court upheld the review on 12 September 2014 and dismissed the appellants' claim.

Irked by that decision, the appellants appealed to this Court which remitted the matter to the court a quo for a comprehensive analysis of whether the appellants were covered by the 2010 Works Council Agreement.

In making that order, the court noted that although both the arbitrator and the Labour Court, in its review proceedings, referred to the minutes and the agreement of September 2010, the relevant portions of the agreement were not reproduced.

Additionally, the court reflected that the Labour Court failed to call evidence from the signatories to the agreement to explain its provisions and clarify its scope of coverage.

It further did not proceed to consider the precise ambit of the agreement and its implications for the appellants' claim before the arbitrator.

As a result, it did not make a finding on this critical aspect of the matter despite noting some causal nexus between the Nasho award and the 2010 Agreement.

The court further reasoned that it appeared common cause that the present appellants were part of the 1,078 claimants who were beneficiaries to the Nasho award and that since the Works Council Agreement was made in September 2010, they would have a justifiable claim to the benefits accruing from that agreement. The court concluded as follows:

“In the circumstances, it seems just and equitable that this matter be remitted to the court a quo to clearly determine whether or not the scope of the 2010 Agreement extended to all of the respondent's employees - including the appellants in casu. This will not only serve to ensure that justice is attained but also to secure finality to the protracted and costly litigation between the parties.”

Hence the proceedings in the court a quo which are the subject of this appeal.

PROCEEDINGS IN THE COURT A QUO

The remittal proceedings commenced with the appellants' Statement of Claim, to which the affidavit of Joseph Lungu, the first appellant, was attached.

Mr Lungu averred that the appellants were part of the 1,078 workers in whose favour the arbitral award by Nasho was made. In support of this position, Mr Lungu relied on a list attached to a memorandum which was addressed to one Mr Rwatirera on 5 September 2012.

The respondent's notice of opposition was supported by affidavits from different personnel in the respondent's employ.

The first deponent was Mr Rwatirera, a member of the respondent's Works Council that negotiated the September 2010 Works Council Agreement.

He averred that there was no list of the claimants who appeared before Arbitrator Nasho as none was furnished or attached to those arbitral proceedings. As such, he argued that the list produced by the appellants was tailor-made for the proceedings.

He thus, denied approving or signing the list produced by the appellants.

Mr Rwatirera further indicated that the employees who were covered by the 2010 Agreement were permanent, non-managerial employees and not fixed term contract employees since the latter's terms and conditions were regulated by their individual contracts of employment and were not subject to any Works Council negotiations nor Workers Committee representation.

He also averred, that, it was generally accepted by the respondent, the then Worker's Committee representatives, the general body of the respondent's permanent employees, and most of the fixed-term contract employees, that, fixed term contract employees were not within the scope of the arbitral proceedings before Nasho and the subsequent Agreement of 2010.

He also asked the court to note that the appellants signed fixed term contracts of employment providing for a salary of $250 per month well after the September 2010 Agreement was concluded.

The second deponent, Mr Mugabe, the chairman of the Workers Committee and a member of the Works Council in September 2010, attested that the salaries and benefits of the Work's Council Agreement were intended to apply to permanent employees in Grades 1 to Level 2 and not to fixed-term contract employees.

The third deponent, E Makaha, a former vice-chairman of the Worker's Committee and a member of the Works Council confirmed Mr Mugabe's averments.

The fourth deponent was Mr Mavengano, the former Vice Secretary of the Workers Committee and a member of the Works Council who authored the list dated 12 September 2012.

He disputed the authenticity of the list produced by the appellants.

The fifth and sixth deponents, A. Saburi and T. Hungwe, respectively, who were management representatives in the Works Council Agreement, averred that the Worker's Committee did not, at any time, represent fixed-term contract employees in negotiating their salaries and benefits.

In response, the first appellant disputed the respondent's averments in their totality.

At the hearing, the respondent took a point in limine that the founding affidavit of Mr Lungu, was improperly before the court as he was not a signatory to the Works Council Agreement of 2010 as required by the remittal order.

To the contrary, counsel for the appellants argued, that the order in SC01-17, which remitted the matter to the court a quo, was not restrictive, but left it open for the court to receive any other sworn evidence apart from that of signatories to the Works Council Agreement.

The court a quo upheld the preliminary objection and expunged the affidavit of the first appellant from the record.

Thereafter, two witnesses testified for the appellants.

The first witness, Mr Muronzi, averred that the applicants participated in the proceedings before arbitrator Nasho and contributed $2 towards arbitration costs. However, he stated that he was not a member of the Workers Committee and was not a signatory to the September 2010 Agreement and was cognisant of patent irregularities on the appellants' list.

The second witness, Mr Mushayabasa averred that he was on a specific term contract and was one of the employees who contributed $2 for arbitration costs before Arbitrator Nasho following an address by one Ziki, a member of the then Workers Committee.

The respondent led evidence through Mr Rwatirera, who, apart from reiterating the averments in his founding affidavit, testified that it had always been the respondent's practice that fixed term employees were excluded from the Works Council.

Work's Council members were voted into office by permanent members of staff only.

He also testified that the Workers Committee only represented permanent members of staff.

He further confirmed the fact that the applicants signed further contracts of employment, with a different salary from that of permanent employees, long after the September 2010 Works Council Agreement was concluded.

He reiterated that all the employees on fixed-term contracts were not part of the Nasho proceedings.

DETERMINATION OF THE COURT A QUO

The court a quo dealt with the issue of whether or not the appellants had discharged the onus on them of proving that they were included in the September 2010 Works Council Agreement.

The court had regard to the specific provisions of the September 2010 Works Council Agreement, the minutes accompanying that Agreement, and sworn evidence from the signatories to the Agreement.

The relevant clause on which the appellants base their claim provides as follows:

“The Works Council resolved to recommend to the Board that;

(i) A net salary of $500 per month be paid to all employees across the board for the period 01 March 2009 to 31 December 2009. (This is inclusive of transport allowance of $50 per month and rental support of $200 per month).

(ii) A thirteenth cheque should be paid to all employees for the same period.”…,.

Regarding the September 2010 Works Council Agreement, the court a quo found, that, the reference to “all employees” in the agreement was not determinative of whether or not the applicants were entitled to the salaries and benefits stipulated under that agreement. This was because the respondent had several employees ranging from fixed-term, permanent term, to those contracted for casual work or seasonal work.

Accordingly, it posited that the use of the term “all employees” was vague and it was unable to decide which of the meanings applied by both parties was correct.

The court then held that the provisions of the September 2010 Works Council Agreement did not assist the appellants to discharge their onus.

Concerning the minutes accompanying the Agreement, the court a quo found, that, they were no different from the Works Council Resolutions in that there was no indication whether or not the mentioned employees were on fixed term or permanent employment.

Accordingly, it was unable to decide whether the appellants were included in the term 'employees' as it appeared in the minutes. Therefore, the court ruled that the minutes of the Works Council meeting did not assist the appellants to discharge the onus on them.

As regards the sworn evidence from the signatories to the Agreement, the court noted that the two witnesses who testified for the appellants were not signatories to the agreement or members of the Works Council.

It proceeded to disregard their evidence for non-compliance with clause 3.1 of the order for remittal.

The court a quo further found, that, in any event, the evidence before it was that of sworn affidavits of members of the Works Council who were present when the agreement was reached stating that the appellants were not covered by the agreement.

Further, the authenticity of the list of names relied upon by the appellants was put in issue.

After analysing the list tendered by the appellants, the court remarked, that, on a balance of probabilities, the appellants names were interposed on an existing list. It opined that the list on which the appellants names appeared might have been a combination of documents that were prepared for different purposes.

In the result, it held that the document could not be taken as proof of the people who were involved in the arbitration proceedings before Arbitrator Nasho.

The court concluded that the appellants had not been able to discharge the onus of proving that the salaries and benefits stipulated in the September 2010 Works Council Agreement were intended to apply to them.

It then dismissed the appellants' claim with costs.

This decision prompted the appellants to note the present appeal on the following grounds:

“1. The court a quo erred in coming to the conclusion that the founding affidavit of Joseph Lungu was not properly before it and accordingly striking if off and in consigning the viva voce evidence given on behalf of the appellants to the same fate.

2. A fortiori, the court a quo erred in renouncing the essence of the responsibility that had been placed upon its shoulders by the Supreme Court.

3. The court a quo seriously misdirected itself, such misdirection amounting to an error in law in not requiring respondent to account for the 1,079 claimants who were before Arbitrator Nasho and in not requiring it to show how it could be said the appellants were not part of those claimants, all the circumstances of the matter (sic).

4. Having found that the agreement on which appellants sued, and the minutes giving birth to it related and made reference to 'all employees', the court a quo erred in coming to the conclusion that such reference was not determinative of the issue and that it still left room for the conclusion that the appellants were not contemplated by the words 'all employees'.

5. The court a quo erred in not coming to the conclusion that though appellants could not lead the evidence of the signatories to the agreement and that for reasons that were beyond them, all the objective evidence which the Supreme Court had related to and directed be taken into account led to the inexorable conclusion that appellants were covered by the agreement.

6. The court a quo erred in not coming to the conclusion that appellants were on the list of employees which formed part of the Supreme Court record and which respondent had dishonestly tried to amend after the fact that there had accordingly never been a dispute as to their inclusion in the agreement.

7. The court a quo seriously misdirected itself, such misdirection amounting to an error in law in not concluding that the discrepancies on the numbers of the employees appearing on the lists were explicable on the basis that some of the employees who had made their contributions had not appeared in the Nasho list.”

SUBMISSIONS BEFORE THIS COURT

Counsel for the appellants argued, that, the court a quo misdirected itself in ignoring the fact that the only list that contained the names of the 1,079 employees that were covered by the September 2010 Works Council Agreement was the list provided by the appellants.

He submitted that the failure by the respondent to produce the original list of 1,079 employees, covered by that Agreement that it relied on, but, instead, attaching a list with 237 employees indicated that the only list of employees that could be relied on was that produced by the appellants.

He further submitted, that, since the respondent had not disputed the authenticity of the list of 1,079 employees produced by the appellants in this Court when the matter initially came on appeal, it could not seek to do so during remittal proceedings.

Counsel for the appellants also argued that the phrase “all employees” as used in the resolution of the Works Council Meeting, and the Minutes that followed, was unambiguous and applied to all the respondent's employees without discrimination.

This, he submitted, was supported by the fact, that, during the dollarisation period, all the respondent's employees were getting allowances instead of salaries and the object of the arbitration proceedings, held before Arbitrator Nasho, was to discuss the regularisation of all employees' contracts of employment regardless of whether they were permanent or on fixed term contracts.

As such, he contended that there was no justifiable basis upon which the respondent could exclude the appellants.

Further, that regard being had to section 5 of the Labour Court Act [Chapter 28:01], which provides for the protection of employees against discrimination, there was no justification in distinguishing the salary payable to fixed term employees and permanent term employees in the regularisation process.

Counsel for the appellants also submitted that the court a quo erred in taking a rigid approach in resolving the matter leading it to irregularly striking out part of the appellants' evidence.

He submitted that the fact that the evidence was unnecessary does not mean that the appellants did not have a valid claim.

He also submitted, that, the court a quo should not have found that the list of 1,079 employees produced by the appellants was doctored in the absence of expert evidence to that effect.

He also submitted that the Works Council minutes refer to “all employees”.

There was no application to rectify the minutes and it leads to one conclusion - that they applied to all employees.

He further contended, that, there was uncontroverted evidence that the appellants contributed money towards the costs of the arbitration.

Conversely, counsel for the respondent submitted, that, the court a quo could not be faulted in finding that the appellants had failed to discharge the onus upon them of proving that they were included as beneficiaries in terms of the September 2010 Works Council Agreement.

He contended that the onus was on the appellants to prove that they were covered by the Agreement.

He submitted that the court a quo was correct in restricting itself to the parameters set by this Court when it remitted the matter, hence, part of the appellants' evidence was struck out.

It was also his argument that the court a quo had made a factual finding that the list of employees provided by the appellants had patent irregularities and that such factual finding could not be upset by this Court unless the appellants established that such a finding was grossly unreasonable.

Furthermore, he submitted that the court a quo, having found that the text used in the Works Council Meeting, and the subsequent Minutes, did not help the appellants' case, correctly determined that no evidence had been put before it by the appellants to prove that they were part of the 1,079 employees who appeared before Arbitrator Nasho.

ISSUE FOR DETERMINATION

Although the appellants have raised several grounds of appeal, I take the view that the appeal can be determined on the following issue:

WHETHER THE COURT A QUO ERRED IN FAILING TO MAKE A SPECIFIC FINDING ON WHETHER OR NOT THE APPELLANTS WERE COVERED BY THE WORKS COUNCIL AGREEMENT OF SEPTEMBER 2010

In determining this issue, it is necessary to first consider the import of the order in SC01-17 remitting the matter to the court a quo.

That order enjoined the court a quo to determine whether or not the salaries and benefits stipulated in the September 2010 Works Council Agreement of 2010 were intended to apply to the appellants; and, if so, the quantum thereof. Put differently, the court a quo had to determine if the appellants were included in that Agreement.

An examination of the court a quo's ruling reflects that the court a quo did not make this finding.

Having considered the specific provisions of the September 2010 Works Council Agreement and the Minutes accompanying the Agreement, as directed by this Court under SC01-17, the court a quo remarked that it was unable to decide whether or not the appellants were included under the agreement.

The court a quo then invoked the principle of onus to the effect that the appellants failed to prove that they were covered by the 2010 agreement.

The court a quo's decision was premised on the inability to resolve the issues in dispute.

I regurgitate the relevant portions of the court a quo's judgment:

“(1) The specific provisions of the Works Council Agreement of September 2010

In our view, the text of the Works Council meeting resolutions of September 2010 does not resolve the issue.

The use of 'all employees' leaves the Court unable to decide which of the two meanings propounded by the parties is correct

It therefore follows that provisions of the Works Council Agreement of 2010 does not help the applicants to discharge the onus upon them.

(2) The Minutes Accompanying the Agreement

The minutes of the Works Council meeting of 16 September 2010 leaves the court in the same position as after considering the Works Council Resolutions of September 2010.

The Court is unable to decide whether the Applicants were included in the term employees as it appears in the minutes.

The minutes of the Works Council meeting of 16 September 2010 therefore do not assist the Applicants to discharge the onus upon them.”…,.

It follows that the court a quo failed to make a determination on the pertinent issue upon which the matter was remitted.

The court a quo's inability to make a finding is a serious misdirection. It is tantamount to not making a decision at all.

In PG Industries (Zimbabwe) Limited v Bvekerwa & Ors SC53-16…, the court opined on the effect of a court's failure to determine an issue in dispute as follows:

“The position is settled, that, where there is a dispute on a question, be it on a question of fact or point of law, there must be a judicial decision on the issue in dispute. The failure to resolve the dispute vitiates the order given at the end of the proceedings.

Although the learned judge may have considered the question as to whether or not there was an irregularity in the citation of the employer, there was no determination on that issue. In the circumstances, this amounts to an omission to consider and give reasons, which is a gross irregularity.”…,.

In casu, the court a quo, whilst accepting the parties' dispute regarding the import of the September 2010 Works Council Agreement and the minutes thereto, did not make a finding on whether in light of this evidence, the appellants were included in the September 2010 Agreement.

The court could not have failed to determine this crucial issue as the relevant facts upon which it could reach an objective decision were before it.

The irregularity is apparent in the court a quo's assessment of the specific provisions of the September 2010 Works Council Agreement and the minutes accompanying that Agreement.

The finding by the court a quo, that the appellants failed to discharge the onus placed on them to prove that they were covered by the 2010 Agreement did not dispose of the matter. This is so because the question remained whether or not the appellants were covered by the Agreement regard being had to the evidence placed before the court a quo.

This was not an issue the court a quo could ignore. The court was obliged to making a finding.

It failed to do so.

Having found that the court a quo grossly misdirected itself, in failing to make a clear cut determination, the pertinent question that arises is whether the subsequent finding by the court, that the appellants failed to discharge the onus cast upon them, to prove that they were covered by the September 2010 Agreement, was correct.

In Pillay v Krishna & Another 1946 AD 946…, the court made the following remarks regarding the burden of proof in a matter:

“…, the duty which is cast on the particular litigant, in order to be successful of finally satisfying the Court that he is entitled to succeed on his claim, or defence, as the case may be, and not in the sense merely of his duty to adduce evidence to combat a prima facie case made by his opponent.

The second is that, where there are several and distinct issues, for instance a claim and a special defence, then, there are several and distinct burdens of proof, which have nothing to do with each other, save of course that the second will not arise until the first has been discharged.

The third point is that the onus, in the sense in which I use the word, can never shift from the party upon whom it originally rested.

It may have been completely discharged once and for all, not by any evidence which he has led, but by some admission made by his opponent on the pleadings (or even during the course of the case) so that he can never be asked to do anything more in regard thereto; but the onus which then rests upon his opponent is not one which has been transferred to him: it is an entirely different onus; namely, the onus of establishing any special defence which he may have.”…,.

From these remarks, one can note, that, the burden of proof is the obligation upon a litigant to establish facts which persuade the court to rule in his or her favour.

It invariably involves a court's weighing of an applicant's claim together with the probabilities which arise from the circumstances of the case to decide whether he is entitled to the relief sought.

Therefore, the question of whether or not a party has discharged the onus upon it cannot be determined by a court's indecision. This is particularly so in an instance where the court can evaluate the facts and evidence and decide which version is more likely than not to be true.

It is on this basis that I have concluded that the court a quo did not correctly apply the principle of onus of proof to the matter before it.

Counsel for the appellants urged the court to consider, that, on a holistic approach to the matter, there was sufficient material for this court to make a finding that the appellants were part of the September 2010 Works Council Agreement.

That would be tantamount to asking this Court to be a court of first and last instance.

This Court cannot do so for the reason that the general position of law is that for the Supreme Court to consider a case, a lower court or tribunal must have made a relevant order. Its duty is to determine whether those decisions should be confirmed, changed, or reversed. This is because the Supreme Court exercises appellate jurisdiction which is conferred on it by sections 9 and 21 of the Supreme Court Act [Chapter 7:13] and section 169 of the Constitution of Zimbabwe, 2013.

The undesirability of having an Appellate Court sitting as a court of first instance was put across in Dormehl v Minister of Justice and Others [2000] ZACC 4; 2000 (2) SA 825, where the court dealing with issues of direct access to the Constitutional Court of South Africa stated:

“(b) It is not ordinarily in the interests of justice for a court to sit as a court of first and last instance, without there being any possibility of an appeal against its decisions…”

In any event, there is need for the leading of evidence which the court a quo is best suited to do as is provided in terms of sections 89(2)(a)(i) and 89(5) of the Labour Act [Chapter 28:01].

DISPOSITION

The court a quo's failure to determine whether, in terms of the specific provisions of the September 2010 Works Council Agreement and the Minutes accompanying the Agreement, the appellants were entitled to the benefits therein, constitutes a material misdirection justifying interference by this court.

It is also a matter which the court a quo is in as good a position to address, thus, a remittal is appropriate in the circumstances.

The matter would be remitted to be heard before a single judge who shall not be any of the judges who determined the matter previously.

In the result, the appeal succeeds in respect of Ground 2 and is dismissed in respect of the rest of the grounds. It would be fair, in the circumstances of this case, that each party bears its own costs.

It is accordingly ordered as follows:

(1) The appeal be and is hereby allowed.

(2) The judgment of the court a quo be and is hereby set aside.

(3) The matter be and is hereby remitted to the court a quo, before a different Judge, for a proper determination of whether, on the basis of specific provisions of the Works Council Agreement concluded in September 2010, and the minutes accompanying the Agreement, the salaries and benefits stipulated in that agreement were intended to apply to the appellants.

(4) If the answer is in the affirmative, to quantify the salary and benefits due to each appellant in terms of the Agreement, from 1 March 2009 to the respective date of termination of each appellant's contract of employment, subject to the deduction of such payments as each appellant may have received by way of salary and benefits during the relevant period.

(5) Each party shall bear its own costs.

HB11-15 : CHARITY GONYORA (In her application for the guardianship of Clifford Mayizoni Mwale ) vs X
Ruled By: MUTEMA J

On 12 November 2014, the Provincial Magistrate issued the applicant, Charity Gonyora, with a certificate of guardianship in respect of the minor child, Clifford Mayizoni Mwale (male born 7 July 1998).

In the application for the guardianship in the magistrates' Juvenile Court, the applicant was represented by an organisation called Justice For Children as her legal practitioners. The papers filed in the application ventilate the following facts:

The minor child's mother, Sekai Mwale, died on 7 January 2001. She was not employed. The father, Moses Mwale, died on 4 April 2014. He was a retired soldier. The applicant, Charity Gonyora, is the late Moses Mwale's sister.

She averred that she has been staying with the minor child since 2001 when his mother passed away.

The minor child's parents left four children, including the minor in question. The minor child is doing Form 3 at Founders High School.

The applicant is a widow with three children. She is self-employed vending clothes. She resides in Gwabalanda in the house belonging to the minor child's late father, Moses Mwale.

The applicant proffered two reasons for her application, viz -

(i) To enable her to apply for a passport for the minor child so that she can travel with him to South Africa where most of his paternal relatives are; and

(ii) That she will be able to legally act for the minor child in all issues affecting him.

She attached four supporting affidavits to her application two of which were deposed to by the minor child's purported paternal uncles, Lion Phiri and Stanford Chirwa, while one was by Nhamo Richard Mandaza who purported to be a maternal uncle to the minor child and the other was by Jane Nhamo who said is a maternal aunt to the minor child.

It was not elucidated how a Chirwa and a Phiri came to be paternal uncles to a Mwale and also how the Nhamos came to be maternal aunt and uncle to the minor child whose late mother was Sekai Mwale (nee Mahupete).

As the upper guardian of minor children, this court finds that the trial Provincial Magistrate was enjoined to make an in-depth and more thorough enquiry clarifying the alleged relationships alluded to above.

Even the applicant was supposed to disclose her maiden surname to find out whether she truly is who she averred to be vis-a-vis the late Moses Mwale.

Over and above the eyebrows raised by the shortcomings pointed out above, what makes the entire scenario worse is that the applicant is staying in the minor child's late father's house.

The father died on 4 April 2014. To date, his estate is still not registered. No explanation for it has been proffered.

It does not require a being from outer space to smell a rat here.

Even the Deputy Master's report is to the effect that registration of the deceased Moses Mwale's estate was supposed to have been done first.

When the record of proceedings landed on my desk on automatic review, in terms of section 9(6) of the Guardianship of Minors Act [Chapter 5:08], I asked the trial magistrate whether the deceased estate was registered, and, if so, proof thereof and the response was simply that it was not; who the minor child's siblings are, how old they are, what they do in life and where they are, and the reply was that he has two sisters Norine Savi Mwale (now late) and Tatenda Mwale who is unemployed and resides with her husband in South Africa yet in paragraph 4 of her affidavit the applicant avers that including the minor child, the deceased parents left four children – so the fourth child has not been accounted for; and whether the minor child's parents were employed, to which the reply was that “only the father was retired from the army and there seems to be no pension benefits therein.” (sic)

If the father retired from the army, it is inconceivable how there could be no pension accruing to him which this minor child should benefit from.

Experience has taught us that orphaned minor children must, by all means, be protected against the vagaries and avarice of certain members of society, relatives or not, hence the need for magistrates, in enquiries of this nature, to think outside the box and make exhaustive enquiries in the interests of the innocent children who might end up destitute on the streets as a result of inadequate fact-finding.

In the result, in terms of the powers vested in me in terms of section 9(7)(b) and (c) of the Guardianship of Minors Act [Chapter 5:08], the matter is hereby remitted to the Children's Court for the following to be done:

1. To establish, via documentary proof, the relationship between the applicant and the late Moses Mwale, between Lion Phiri and Stanford Chirwa, on the one hand, and Moses Mwale on the other hand; between Nhamo Richard Mandaza and Jane Nhamo, on the one hand, and Sekai Mwale (nee Mahupete) on the other;

2. To account for the unnamed fourth sibling to the minor child; how old he/she is; where he/she is; and whether employed or not;

3. To establish if the late Moses Mwale has pension benefits from the army he is entitled to, and, if so, the certificate for guardianship must incorporate a provision that such proceeds be deposited into the Guardian's Fund;

4. To establish the Gwabalanda house number and its title deeds or other title, and that the late Moses Mwale's deceased estate be registered and an executor appointed before the appointment of the guardian can be confirmed;

5. To establish the views towards the application of the minor child's sister, Tatenda Mwale, as well as those of the unnamed sibling alluded to in 2 above.

HHB14-15 : THE STATE vs ZONDIWE NCUBE
Ruled By: TAKUVA J and MUTEMA J

This matter was placed before me in terms of section 57(1)(b) of the Magistrates' Court Act [Chapter 7:10].

The facts are that the accused was charged with and convicted of contravening section 114(2)(b) of the Criminal Law (Codification and Reform) Act [Chapter 9:23] (stock theft).

It was alleged in the summary jurisdiction, that, on a date unknown to the prosecutor, but during the month of February 2013, and at Plot 10 Egypt, Inyathi, Zondiwe Ncube unlawfully and intentionally took four heifers, the property of Mnkandla Mbokodo, either intending to permanently deprive him of his ownership, possession, or control or realizing that there is real risk or possibility that she may so deprive Mnkandla Mbokodo of his ownership, possession, or control.

The circumstances, as outlined by the State, are that the complainant is the accused's brother. On 3 November 2012, the complainant bought six heifers from one Morros Mguni. Subsequently, on a date unknown to the prosecutor, but during the month of February 2013, the complainant tasked the accused person to transport the cattle from Plot 10 Egypt, Inyathi to Plot 13 Esimnyangeni, Shangani. Instead, the accused person transported four heifers to Kennilworth Resettlements, Inyathi without the knowledge of the complainant.

The four heifers are valued at $1,600 and they were not recovered.

The accused appeared before a magistrate and pleaded guilty. She was found guilty as charged and sentenced to 15 years imprisonment after the court made a finding that there were no special circumstances. All the essential elements of the charge were put and admitted by the accused.

However, in mitigation the accused said, “I took the cattle with an intention to recover a debt owed by the complainant.”

Further, during the inquiry into whether or not special circumstances exist, the accused stated; “The complainant owed me $1,454 and I thought of recovering my money from the cattle. My brother (complainant) kept on changing goal posts.”

It has been said time and again that there is an inherent danger of convicting persons upon guilty pleas. This is so because this procedure may result in injustice if not properly followed.

It is true that before acting on a plea of guilty the court must be satisfied that the admission of guilt is genuine, unqualified, and unequivocal. Put differently, the court must be satisfied that the accused is guilty in fact and in law: see S v Chirodzero HH14-88 and S v Kawocha SC22-92.

In respect of property crimes, such as theft, robbery, or malicious damage to property, the court should always investigate whether the accused committed the crime under any sort of claim of right.

A claim of right is a “decently clothed” ignorance or mistake of law.

Such an ignorance or mistake of law is said to be decently clothed where the accused either knows or suspects that his actions would normally be illegal but due to some extraneous factual basis, he believes that his actions will not be unlawful in present circumstances.

Where there is doubt as a result of this defence, the court should alter the plea to one of not guilty in order to determine the contentious issues.

The rationale for this principle is to ensure that there is a fair trial especially where an accused is unrepresented and/or where the case involves a mandatory minimum sentence.

On a charge of stock theft, a defence of claim of right must be sufficiently investigated: see S v Kawocha SC22-92.

In casu, the accused's explanation amounts to an extraneous factor that made her believe that her actions will not be unlawful. This defence should have been investigated and a plea of not guilty entered.

It was not, and that is a misdirection.

Consequently, the proceedings are not in accordance with real and substantial justice. The conviction is quashed and the sentence set aside. The matter is remitted to the Magistrates' Court for a trial upon a plea of not guilty.

SC60-21 : LEATHOUT INVESTMENTS (PVT) LTD vs FUTURE MUVIRIMI and PETRONELLA MUVIRIMI
Ruled By: GOWORA JA, PATEL JA and BERE JA

The parties herein are engaged in various wrangles in the Magistrates Court and the High Court. The wrangles have seen the parties file complaints of alleged criminal activities against each other.

In this appeal, the dispute relates to immovable property.

On 2 April 2014, the appellant caused summons to be issued out of the High Court wherein it sought the eviction of the respondents, who are husband and wife, from the immovable property described as 69 Glenara Avenue, Highlands, Harare. The appellant averred therein that it was the registered owner to the property and that the respondents were in occupation of the same. The appellant alleged that their occupation was without its consent.

The respondents opposed the claim for their eviction.

They filed an exception on 14 May 2014. This was followed up with a special plea filed on 16 May 20104.

In the exception, the respondents challenged the appellant's claim of ownership in the immovable property described above. The same defence was raised in the special plea.

On 27 June 2014, the respondents filed a plea on the merits.

The substance of their defence was to challenge the appellant's claim to ownership of the property in question. They alleged that the registration of title was marred by fraud. They denied that the appellant had a legal and enforceable right to claim their eviction from the property in question.

On 20 November 2015, the parties jointly filed a special case with the registrar of the High Court.

A hearing for the determination of the Special Case was convened before a judge on 3 February 2017.

The Special Case was not heard or determined.

The respondents filed a chamber application for directions, which was heard on 22 February 2017.

On 29 November 2017, the court issued a judgment in which it ordered as follows:

“1. Case Number HC2741/14 shall proceed to hearing as a stated case, subject to the directions given in paras 2 to 7 of this order.

2. The applicants be and are hereby granted leave to lead evidence at the hearing of the stated case to deal with facts relevant to the central issue of the existence or otherwise of valid title for the purposes of the action of rei vindicatio.

3. The applicants shall have the duty to begin.

4. The respondent shall, if it so wishes, be entitled to lead evidence in rebuttal.

5. The respondent shall, if it elects to lead evidence in rebuttal, file a detailed statement of the evidence intended to be led, the witnesses to be called, and a bound and paginated bundle of documents, if any, upon which reliance will be placed. This paragraph shall be complied with at least five clear court days prior to the set down date of the special case.

6. The parties shall address the court on the factual and legal issues involved as provided for by the rules and practice of this court relating to closing submissions at the close of an action.

7. No order as to costs.”

The appellant was aggrieved by the grant of the order aforementioned, and, with the leave of the High Court, has noted an appeal on the following grounds:

“1. The court a quo erred in not coming to the conclusion that the only application for directions made was one made orally and a fortiori invalidly made and stood to be dismissed on that basis.

2. The court a quo erred in coming to the conclusion that a stated case could have its character changed pursuant to the application for directions, however made, and so erred in failing to consider the true nature of the written application belatedly placed before it.

3. The court a quo erred further in coming to the conclusion that any cause existed for respondents to depart from the stated case and so erred in concluding that it had a discretion over the matter.

4. The court a quo erred in directing that the trial proceeds in terms of a course which is unavailable at law and is inconsistent with the nature of a stated case.

5. The court a quo erred at any rate in concluding that there was a dispute of fact and that the respondents had raised a defence worth interrogating in a trial cause.”

ISSUES FOR DETERMINATION

Although the appellant has set out five grounds, only three issues arise;

(i) First, whether or not an oral application for directions was made and considered by the court;

(ii) Secondly, whether or not the court ought to have declined to hear the chamber application as not being properly before it; and

(iii) Last, whether the court a quo misdirected itself in granting the order for directions which was in direct contradiction of the Stated Case.

I will proceed to consider each of the issues ad seriatim....,.

Although the fact of title being in the appellant's name was admitted, there was an issue as to the legality of that title, with an allegation of fraud attaching to such registration.

The main issue for determination by the court was whether or not ownership of the immovable property was in dispute.

This has to be considered against a statement on the agreed facts to the effect that the defendants primary defence to the rei vindicatio was an allegation that the plaintiff's ownership of the property was tainted with fraud and irregularity, which the plaintiff disputed and believed to be irrelevant in the determination of the matter....,.

WHETHER THE COURT MISDIRECTED ITSELF IN GRANTING THE ORDER FOR DIRECTIONS

A Stated Case, or Special Case, is provided for in the rules of court, High Court Rules 1971. Order 29 of the Rules is pertinent and provides:

“ORDER 29

SPECIAL CASES

199 Special case by consent

(1) The parties to a civil action or suit may, after summons has been issued, concur, in a statement, of the questions of law arising therein in the form of a special case for the opinion of the court.

(2) Every such special case shall be divided into paragraphs numbered consecutively, and shall concisely state such facts and documents as may be necessary to enable the court to decide the questions raised thereby.

(3) Upon the argument of such case, the court and the parties shall be at liberty to refer to the whole contents of such documents, and the court shall be at liberty to draw from the facts and documents stated in any such special case any inference, whether of fact or law, which might have been drawn therefrom if proved at a trial.

200 Special case by order before trial

If it appears to the court that there is, in any cause or matter, a question of law which it would be convenient to have decided before any evidence is given or any question or issue of fact is tried, the court may make an order accordingly and may direct such question of law to be raised for the opinion of the court, either by special case or in such other manner as the court may deem expedient, and all such further proceedings as the decision of such question of law may render unnecessary may thereupon be stayed.

201 Special case to be typewritten, etc.

Every special case shall be typewritten or printed by the plaintiff and signed by the several parties or their counsel, and shall be filed by the plaintiff. If the registrar so requests, one or more copies of the special case shall be filed for the use of the court.

202 Special case affecting person under disability

If a minor, or person of unsound mind, is a party to such proceedings, the court may, before determining the questions of law in dispute, require proof that the statements in such special case, so far as concerns the minor or person of unsound mind, are true.

203 Judgment and directions regarding other issues

When giving its decision upon any question in terms of this Order, the court may give such judgment as may upon such decision be appropriate and may give any direction with regard to the hearing of any other issues in the proceedings which may be necessary for the final disposal thereof.

204 Judgment without hearing evidence

If the question in dispute is one of law, and the parties are agreed upon the facts, the facts may be admitted and recorded at the trial and the court may give judgment without hearing any evidence.”

The procedure provided for in the above Rules is available to parties to a civil dispute.

The parties must agree on the undisputed facts. The provisions are available when there is no dispute on the facts. It is meant for situations where only questions of law are in contention.

The uniform rules of South Africa contain provisions that are substantially similar to our own.

In Bane v D'Ambrisio 2010 (2) SA 539 (SCA), the court had to consider what meaning was to be ascribed to the phrase 'stated case'. At 543E-G, the court remarked:

“Rules 33(1) and 33(2) make it clear that the resolution of a stated case proceeds upon the basis of a statement of agreed facts. It is, after all, seen as a means of disposing of a case without the necessity of leading evidence. The case drafted by the parties, with both of them reserving their positions with regard to the factual assumptions, was plainly contrary to the basic object of the rule and the procedure of asking the court to rule on issues thus defined was tantamount to asking the court to give advice on possibly abstract questions.”

It is trite that a statement in a Special Case must set forth the facts agreed upon, the question of law surrounding the dispute, and the issue for determination by the court.

In this jurisdiction, the locus classicus on the requisites of a Stated Case is Kunonga v The Church of Central Africa SC25-17, GARWE JA set out the requisites to be the following:

“WHAT IS A STATED CASE?

[14] The rules of court of most countries make provision for the reference of a matter as a stated case.

But, what is a stated case?

It is a case that is brought upon the agreement of the parties who submit a statement of undisputed facts to the court but who take adversarial positions as to the legal ramifications of the facts, thereby requiring a judge to decide the question of law presented (Legal dictionary. The free dictionary.com).

Put another way, it is a formal written statement of the facts in a case, which is submitted to the court by the parties, jointly, so that a decision may be rendered without trial. The facts being thus ascertained, it is left for the court to decide the question of law presented.

A stated case is also called a special case, an amicable action, a case agreed, or a friendly suit (US Legal, Inc.).

[15] In the case of Elizabeth Mambus v Motor Vehicle Accident Fund, Case No. SA 4/2013, a majority decision of the Supreme Court of Namibia, handed down on 11 February 2015, the court noted:

'…, the intention is that the stated case will adjudicate the whole of the dispute as stated in the case that exists between the parties and that this is ideally done by setting out the facts agreed to, the questions of law in dispute, and the contentions of the parties. The parties may also require a court to decide an issue of law on the basis of alleged facts as if agreed.'

[16] The court further cited with approval remarks made by the Irish Supreme Court in Simon McGinley v The Deciding Officer – Criminal Assets Bureau [2001] IESC 49 that:

'The case should set out clearly the judge's findings of fact, and should also set out any inferences or conclusions of fact which he drew from those findings.

What is required in the case stated is a finding by the Judge of the facts and not a recital of the evidence. Except for the purpose of elucidating the findings of fact, it will rarely be necessary to set out any evidence in the case stated save in the one type of case where the question of law intended to be submitted is whether there was evidence before the Judge which would justify him deciding as he did…,. This court should not be required to go outside the case to some other document in order to discover them.

The same principle applies to the contention of the parties, the inferences to be drawn from the primary facts, and the Tribunal's determination. All these must be found within the case - not in documents annexed…,.'

[17] Once the facts are agreed, the court should proceed to determine the particular question of law that arises and not delve into the correctness or otherwise of the facts. It is bound to take those facts as correctly representing the agreed position and to thereafter determine any issues of law that may arise therefrom.

It is not open to the parties to the stated case to seek to re-open the agreed factual position or to contradict such position. Nor can either party seek to ignore existing legal principles or findings of fact made in connection with the same matter by another court.

Of course, either party has a remedy, at common law, to withdraw any concession made in a stated case owing to justus error, fraud, mistake, or any other valid ground.

[18] It has become necessary to restate what a stated case is owing to the fact that in some instances, the appellant, in this case, has made submissions contrary to the stated case brought before the court. The appellant has also ignored, in part, the decision of this Court on which the stated case is predicated.

It bears stating, that, if this happens, a party will be kept strictly to the terms of the agreed facts, as it is on the basis of those facts that the court would have been invited to make a determination on some specific question of law.”

The court a quo relied on Kunonga v The Church of Central Africa SC25-17 in deciding whether or not to grant the application for directions. The learned judge reasoned as follows:

“What, in essence, this Court is being asked to determine is if it can resolve the dispute between the parties based on the stated case.

Para 1.1 of the stated case states that the respondent is the registered owner of the property. In para 1.4 of the special case, the parties recognize that the applicants primary defense to the rei vindicatio is that plaintiff's ownership of the property is tainted with fraud and illegality.

The parties recognize that the applicants have a defence to the claim having filed a challenge to the respondent's title. An attempt to settle the matter failed after the withdrawal of a deed of settlement. The claim has since been re-instituted.

It is not surprising that the stated case has attracted so much controversy. The stated case states two mutually exclusive situations, one of which cannot be correct.

The statement that the plaintiff is the registered owner of the property cannot be accepted on the face of it especially in the face of indications to the contrary in the stated case.

The presumption of ownership can only be rebutted by evidence….,.

Mention is made of a fraudulent power of attorney used to support the transfer.

The stated case records that the respondent disputes the allegations of fraud. The stated case discloses a material dispute of fact over ownership of the property between the parties that cannot be resolved on the papers. The fact that the parties previously agreed that the matter should be dealt with as a special case, in a case where there are glaring material disputes of fact that require to be ventilated at a trial, has no effect of binding the court to such an arrangement.

Resort to the special case procedure for the relief of a rei vindicatio, in the face of the disputes existent on the papers, is inappropriate.

Where a special case discloses substantial disputes of fact, the court cannot simply rubber stamp it and accede to insistence on dealing with the case as a special case because the parties agreed on a statement of agreed facts.

Whenever a material dispute of fact appears on the face of a stated case, which cannot be resolved on the papers filed, that dispute will require full ventilation.

The applicants raise a defense of claim of right.

An allegation of fraud cannot be proved in the absence of the documents allegedly used to commit the fraud. The best course to take is to allow the applicants to call evidence to substantiate their claim of fraud. I am not persuaded by the respondent's argument that the defendants are bound by the stated case.

The stated case does not clearly or correctly articulate the issues to be dealt with.

An issue arises regarding whether the respondent acquired valid title from the applicants. What the parties ought to have done is to request the court to determine who the owner of the property is, hence asking the court to determine the issue of ownership. Instead, the court was asked to determine, “whether or not ownership of the immovable property is in dispute.”

What the court is being asked to do is just to make a declaration regarding the existence of a dispute over the property.

If the court determines that ownership is in dispute - then what? That determination does not dispose of the dispute between the parties.

The court ought to have been asked to resolve the real dispute between the parties.

The issue could have been worded along the following lines: 'whether the respondent acquired valid title from the applicants.' That is the issue disclosed by the agreed facts. This way, the trial court is equipped to make a determination over the ownership of the property and dispose of the dispute.”

The Special Case in casu was set out as follows:

“WHEREAS the plaintiff issued summons and declaration against the two defendants under case number HC2741/14 seeking a rei vindication order against the said defendants, together with costs of suit;

AND WHEREAS the said defendants having been served with the summons, defended the proceedings and filed their Plea of record on 27 June 2014;

AND WHEREAS the plaintiff filed its replication to the said plea;

AND WHEREAS the matter proceeded to a pre-trial conference before the Honourable Mrs Justice Matanda-Moyo;

AND WHEREAS at the pretrial conference the parties agree to proceed by way of a special case;

NOW THEREFORE it is stated that:

1. THE AGREED FACTS

1.1 Plaintiff is the registered owner of the property in dispute, that is, Lot 1 of Stand 21A Oval Park Township measuring 5653 square metres, otherwise known as No.69 Glenara Avenue, Highlands, Harare.

1.2 The defendants had filed a suit, under HC5960/13, challenging, inter alia, the plaintiff's title to the above-named property.

1.3 On 16th March 2015, a Deed of Settlement was executed under 5960/13 in terms of which defendants withdrew their claim against, among others, the plaintiff in respect of the abovenamed property. Find attached as annexure “A” a copy of the Deed of Settlement presented at the pre-trial conference.

1.4 Defendants primary defence to plaintiff's rei vindication is the allegation that the plaintiff's ownership of the property is tainted with fraud and illegality, which the plaintiff disputes and believes is of no relevance to its claim for rei vindicatio.

2. ISSUES FOR DETERMINATION

The parties set out the issues for determination in this matter as follows:

2.1 Whether or not the ownership of the immovable property in issue is in dispute.

2.2 Whether or not, therefore, the plaintiff is entitled to a rei vindicatio order.

3. HEADS OF ARGUMENT

The Parties Counsel agreed and undertook to file heads of argument in respect of their positions on the facts as set out above as follows:

3.1 The plaintiff's heads of argument shall be filed on or before 20 November 2015;

3.2 The defendants heads of argument shall be filed on or before 25 November 2015.”

A Stated Case must set out the facts as agreed by the parties. The facts must not be in contention nor should a material dispute of fact be manifest on the statement constituting the agreed facts.

In this case, the registration of title in the appellant's name is admitted.

The causa for the registration of title and how it came to be is challenged by the respondents ex facie the “agreed facts”. They allege fraud on the part of the appellant and suggest that they wish to defend the action on the premise that the registration of title was illegal.

The definition of a Special Case was spelt out in the South African case of National Union of Mineworkers v Hartebeestfon 1986 (3) SA 53 (AD)…, as follows:

“…,. In none of them is 'special case' defined, presumably because the expression has an accepted meaning. MOZLEY and WHITELY's Law Dictionary, 7th ed says sv 'special case' that it is:

“1. A statement of facts agreed to on behalf of two or more litigant parties, and submitted for the opinion of a court of justice as to the law bearing upon the facts so stated.”

STROUD's Judicial Dictionary 4th ed states that:

“A special case is a written statement of the facts in a litigation, agreed to by the parties, so that the court may decide these questions according to law…,. It is also known as a case stated.”…,.

It is, therefore, implicit in the expression 'in the form of a special case' that there should be a statement of the facts agreed by the parties.”

The appellant has suggested that the procedure “created by the court a quo is unknown at law and cannot produce valid proceedings.” It has sought reliance for that contention on Matanhire v BP Shell Marketing 2005 (1) ZLR 140 (S)…,.

I am unable to agree and I conclude that the reliance on Matanhire v B P Shell Marketing 2005 (1) ZLR 140 (S) in this context is misplaced.

The ratio in Matanhire v BP Shell Marketing 2005 (1) ZLR 140 (S) is to the effect that an application for directions can only be made by a court in respect of a matter that was pending before the court.

In this case, there was a claim for a rei vindicatio pending before the court and the court could entertain an application for directions.

The Rules permit the giving of directions and it is trite that the High Court can do anything except that which the law expressly forbids it to do.

In this case, the Rules permit the court to give directions and that is precisely what the court did.

In this case, however, there is no Statement of Agreed Facts.

The parties have set out their respective positions, with the respondents postulating a defence to the claim for rei vindicatio. The respondents challenged the validity of the appellant's title on allegations of fraud in the registration thereof.

What the parties filed did not comply with the requirements of a Special Case, and, given what the parties themselves set out on the 'Stated Case', I cannot conclude that the learned judge in the court a quo misdirected herself in finding, as she did, that there were material disputes of fact requiring the adduction of evidence.

Evident from the 'stated case' as formulated by the parties was a clear dispute on the facts.

The order gives the respondents leave to deal with facts relevant to the central issue of the existence or otherwise of valid title for seeking relief under rei vindicatio. The onus to begin is placed on the respondents and the appellant is afforded a right to rebut any evidence led by the respondents.

No one can be in doubt that these are the issues for determination - even under the stated case itself.

The issues as recorded by the parties are:

(a) Whether or not the ownership of the immovable property in issue is in dispute; and

(b) Whether or not the plaintiff was entitled to an order for a rei vindicatio.

It was the parties who were responsible for drafting the case and issues for determination. It was not the court.

It seems to me, that, the manner of pleading adopted by the parties has resulted in the adoption of a procedure that the pleadings did not support.

If the title to the property was not in issue, it should therefore not have been placed before the court for adjudication. The fact that it was so placed, and that upon a consideration of the pleading themselves, the court was of the view that it could not resolve the matter on the papers as a material dispute of fact was evident on title, cannot be blamed on the court.

The respondents, on the papers, raised a defence to the claim.

The court was duty-bound to consider the defence. It could not do so based on a supposed Stated Case.

The issue of how the appellant acquired its title was pertinent to the disposition of the dispute. The court could not, and is not expected to turn a blind eye to allegations of fraud or illegality. It realized that there were real issues the determination of which required that the parties adduce oral evidence.

There was a clear contradiction in terms of what the appellant's case was and what the respondents case was. The court exercised its discretion, and there is no allegation that such exercise was injudicious or capricious.

The matter was therefore not properly before the court and ought not to have been referred for determination as a Stated Case.

The appellant suggests, that, the court a quo erred in holding that the Stated Case could be maintained but that the parties could give evidence on the question of the registration of title.

I think this contention has merit.

Once the court a quo concluded that there were material disputes of fact on the 'stated case' the complexion of the matter was altered.

The claim for a rei vindicatio was premised on the appellant's title which was being challenged by the respondents. The challenge to the appellant's title, as a consequence, raised the appellant's right to claim eviction as an issue.

This was the only issue for determination between the parties. As a result, there was no Stated Case for adjudication.

Even if the court was inclined to entertain the application for directions, once it concluded that there were material disputes of fact, it ought to have given directions in which it ordered the matter back to a pre-trial conference for the settling of issues for trial purposes. This, in my view, would allow the parties to properly consider their respective positions vis-a-vis the dispute to ensure that all issues pertinent to the determination of the matter are placed before the court.

Counsel for the respondents submits that the Rules give the court the discretion on how to direct the case to be heard.

I accept as correct the contention by the respondents on this point.

Rule 154 provides, that, upon hearing the application, the judge shall, “as far as practicable, make such order as may be just to any matters in respect of which directions were asked.”

In my view, the Rules give the judge the discretion to make such order as may result in the matter being dealt with to achieve justice between the parties.

I did not understand the appellant to suggest that the court lacks the discretion to make an order for directions on the hearing of the matter. What the appellant suggested was that the order for directions was not one that the court is legally permitted to give.

However, in the instant case, there was no Stated Case to determine, and, to the extent that the court a quo continued to deal with the matter as if it was a stated or special case, there was a gross misdirection on the part of the court.

This is a misdirection that impacts upon the substance of the order issued by the court a quo.

It was the wrong order in view of the fact that there was no Stated Case. It was thus a procedural irregularity warranting interference by this court.

In my view, this is a proper case for this court to invoke its powers of review as provided in the Supreme Court Act [Chapter 7: 13], which provides as follows in relevant part:

“25 Review powers

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

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

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

Notwithstanding the fact that the appellant has not attacked the court a quo, in deciding to entertain the parties herein in what was purportedly a Stated Case which ex-facie the pleadings raised material disputes of fact, the judgment of the court a quo cannot stand. It must be set aside on the basis that it was irregular.

In my view, the court did misdirect itself in ordering that the matter should proceed as a Stated Case.

Once it found that there were material disputes of fact on the so-called Stated Case, it should have referred the matter to trial....,.

However, because of the irregularity that ensued when the court dealt with the matter as a stated case in the light of the material disputes of fact ex facie the alleged stated case, the order of the court cannot stand and must be set aside.

In the result, it is ordered as follows:

1. The appeal is allowed in relation to the fourth ground only.

2. In the exercise of review powers vested in the court, in terms of section 25 of the Supreme Court Act [Chapter 7:13], the order of the court is set aside in its entirety.

3....,.

4. The matter is remitted to the court a quo for the setting up of a pre-trial conference before a judge in chambers.

CC03-13 : DOUGLAS MUZANENHAMO vs OFFICER IN CHARGE CID LAW AND ORDER and OTHERS
Ruled By: CHIDYAUSIKU CJ, MALABA DCJ, ZIYAMBI JA, GARWE JA, GOWORA JA, PATEL JA, HLATSHWAYO JA, CHIWESHE AJA and GUVAVA AJA

This is an application under section 24(1) of the former Constitution for declaratory and consequential relief pursuant to the Declaration of Rights enshrined in that Constitution.

The applicant in this matter is HIV positive. He started his anti-retroviral treatment in 2003. On 19 February 2011, he was arrested at a meeting held to commemorate an AIDS activist. On the day of his arrest, he was detained at Harare Central Police Station and then taken to Harare Remand Prison on 23 February 2011.

The applicant avers that he was subjected to various forms of ill-treatment during his detention at both prisons and that his fundamental rights were consequently violated by the respondents.

In particular, he complains, that, at Harare Central Police Station, he was not allowed to use his cell-phone and was thereby denied access to his anti-retroviral medication. Furthermore, he was required to remain barefoot and with only one layer of clothing. In addition, the toilet facilities in the holding cells were unhygienic and deplorable. At Harare Remand Prison, he was denied access to his prescribed medication regime. Moreover, together with other inmates, he was stripped and made to jump up and down, and placed in solitary confinement for four days when he complained.

Having regard to this ill-treatment, the applicant seeks a declaratur to the effect that the respondents contravened sections15(1) and 20(1) of the Constitution relative to the protection against inhuman or degrading treatment and his freedom of expression, and that the conditions in the holding cells at Harare Central Police Station and the practice at Harare Remand Prison, of requiring inmates to strip naked, be declared inhuman and degrading.

He also seeks an order requiring the respondents to ensure that inmates be allowed full access to their respective anti-retroviral regimes, that no inmate be required to walk barefoot or be left with inadequate clothing, and that the toilet facilities in the holding cells at Harare Central Police Station be rehabilitated.

The respondents deny most of the applicant's assertions.

As regards Harare Central Police Station, they aver that the governing Police Manual prescribes that every inmate be required to surrender all his possessions, other than clothing for personal use, so as to avoid his harming himself; again, cell phones, and other valuable articles, are ordinarily taken for safe custody.

The applicant did not request his cellphone and did not tell the police officers concerned about his HIV status and anti-retroviral regime.

All inmates in holding cells are given three blankets each and the toilets are cleaned and inspected every day. However, the toilet flushing mechanisms are placed outside the cells and therefore cannot be used by the inmates themselves. The respondents also concede that the conditions in the holding cells are not entirely acceptable. However, their rehabilitation is not immediately practicable.

With respect to Harare Remand Prison, the respondents aver that they employ qualified doctors to administer appropriate medication and that inmates may only bring their own medication if it is unavailable in the prisons stock. Moreover, the applicant did not lodge any complaint about his medication either upon admission or on discharge.

As regards strip searches, these are procedurally done and strict decency is observed.

Finally, the respondents aver that the practice of solitary confinement has been abolished and that the applicant was never subjected to this practice.

At the hearing of the matter, counsel for the applicant submitted that the respondent's assertions and denials are based on what should be in place as a matter of practice. In effect, they have failed to ascertain and rebut what actually happened to the applicant in relation to his medication and conditions of incarceration. He further submits that these bare denials do not raise any material disputes of fact that are not resoluble on the papers. The court should therefore take a robust view of the facts in order to do justice as between the parties.

Counsel for the respondents concedes that there are certain facts, for instance, the conditions in the cells at Harare Central Police Station, which are common cause. However, apart from this, there are substantial disputes of fact that were foreseeable before this application was instituted. Consequently, he submits that the matter should be dismissed or struck off to be instituted afresh.

MATERIAL DISPUTES OF FACT

As a general rule, in motion proceedings, the courts are enjoined to take a robust and common sense approach to disputes of fact and to resolve the issues at hand despite the apparent conflict. The prime consideration is the possibility of deciding the matter on the papers without causing injustice to either party: see Masukusa v National Foods Ltd & Another 1983 (1) ZLR 232 (S)…,.; Zimbabwe Bonded Fibreglass v Peech 1987 (2) ZLR 338 (S)…,.; Ex-Combatants Security Co. v Midlands State University 2006 (1) ZLR 531 (H)…,.

The first enquiry is to ascertain whether or not there is a real dispute of fact.

As was observed by MAKARAU JP…, in Supa Plant Investments (Pvt) Ltd v Chidavaenzi 2009 (2) ZLR 132 (H)…,:

“A material dispute of facts arises when material facts alleged by the applicant are disputed and traversed by the respondent in such a manner as to leave the court with no ready answer to the dispute between the parties in the absence of further evidence.”

In this regard, the mere allegation of a possible dispute of fact is not conclusive of its existence: see Room Hire Co. (Pty) Ltd v Jeppe Street Mansions ((Pty) Ltd 1949 (3) SA 1155 (T)…,.; Checkers Motors (Pvt) Ltd v Karoi Farmtech (Pvt) Ltd SC146-86; Boka Enterprises v Joowalay & Another 1988 (1) ZLR 107 (S)…,.; Kingstons Ltd v L.D. Ineson (Pvt) Ltd 2006 (1) ZLR 451 (S)…,.

The respondent's defence must be set out in clear and cogent detail. A bare denial of the applicant's material averments does not suffice. The opposing papers must show a bona fide dispute of fact incapable of resolution without viva voce evidence having been heard.

See Room Hire Co. (Pty) Ltd v Jeppe Street Mansions ((Pty) Ltd 1949 (3) SA 1155 (T) cited with approval in Vittareal Flats (Pvt) Ltd v Undenge & Others 2005 (2) ZLR 176 (H)…,; Van Niekerk v Van Niekerk & Others 1999 (1) ZLR 421 (S)…,.

DISPUTES OF FACT IN THE PRESENT MATTER

In their opposing papers, the respondents make certain clear concessions in response to the applicant's averments concerning the conditions at Harare Central Police Station.

The second respondent (Officer Commanding Harare Central District) admits that the toilets in the holding cells are not screened and that there is no flushing mechanism for use by inmates within any given cell. He also accepts, that, although each inmate should be given three blankets, no mattresses are provided for inmates to sleep on.

Apart from this, all the other averments of the applicant are denied, either in their totality or in terms that substantially contradict the applicant's assertions.

In certain respects, the respondents' denials are not sufficiently detailed.

For instance, the sixth respondent (Commissioner General of Prisons) admits that strip searches are conducted in prisons, but avers simply that they are carried out procedurally and that strict decency is observed. He also asserts, rather tersely, that the practice of solitary confinement has been abolished and that the applicant was never subjected to such confinement.

Nevertheless, despite the laconic nature of these denials, and the failure to elaborate them, they are quite categorical in contradicting the applicant's averments.

Taken in the overall context, they cannot be rejected or disregarded as mere fabrication.

In the final analysis, I am of the considered view that the conflicting positions of the parties in casu are irreconcilable on the papers in several critical respects.

The affidavit evidence does not clearly establish the veracity of all of the applicant's complaints to the extent that it can be said that there is a “ready answer to the dispute between the parties in the absence of further evidence.” As was properly conceded by counsel for the applicant, all of the relief sought herein involves having to make findings of fact, and only a few of the relevant facts are resoluble on the papers.

I accordingly conclude, that, there are material and significant disputes of fact that can only be resolved by the calling of oral evidence in trial proceedings.

DISPOSITION

In determining this matter, it is necessary to have regard to the primary purpose of section 24 of the former Constitution. As was succinctly explained by BARON JA in Mandirwhe v Minister of State 1986 (1) ZLR 1 (S)…,:

“The purpose of section 24 is to provide, in a proper case, speedy access to the final court in the land. The issue will always be whether there has been an infringement of an individual's fundamental rights or freedoms, and frequently will involve the liberty of the individual; constitutional issues of this kind usually find their way to this court, but a favourable judgment obtained at the conclusion of the normal, and sometimes very lengthy, judicial process could well be of little value: and even where speed is not of the essence, there are obvious advantages to the litigants, and to the public, to have an important constitutional issue decided directly by the Appellate Division without protracted litigation.”

The facts of the present matter do not evince any need for its speedy resolution.

The applicant is no longer in custody and he does not stand in jeopardy of any immediate harm or privation being inflicted upon him. The redress that he seeks arises from events and practices that have already occurred, but relates to the prevention of their recurrence in the future.

In either case, I do not perceive any urgency warranting a rough and robust approach to the facts under consideration.

In terms of section 24(4) of the Constitution, the court is endowed with the power to:

“…, make such orders, issue such writs, and give such directions as it may consider appropriate for the purpose of enforcing or securing the enforcement of the Declaration of Rights.”

Given the factual disputes alluded to earlier, it is clearly not possible for this Court to proceed with this application as it stands at this stage. Matters of evidence and credibility are generally beyond the practical remit of this Court, and, without firm findings of fact, the court is unable to entertain the substantive relief sought by the applicant.

It is of course open to the court to strike off or dismiss the application on the technical ground that the applicant has adopted the wrong procedure and should have instituted this matter by way of action in the High Court. However, in view of the unquestionable public importance of the issues raised, both generally, and, in the particular context of persons with HIV or AIDS, I take the view that the discretion of this Court should be exercised in favour of retaining this matter on the roll until the constitutional issues raised are properly resolved.

I therefore consider it prudent and necessary to refer this application to the High Court for it to proceed as an action for trial and for that court to determine the matter in its entirety.

It is accordingly ordered that:

1. This application be and is hereby referred for trial to the High Court for determination on the facts and on its merits.

2. For the purposes of trial, the notice of application and notice of opposition filed of record herein shall respectively stand as the summons and notice of appearance to defend.

3. The plaintiff (the applicant herein) shall file his declaration within 10 days from the date of this order.

4. The matter shall thereafter proceed in accordance with the Rules of the High Court.

5. In the event that any party is aggrieved by the decision of the High Court, whether on the facts or on the merits, he is hereby given leave to appeal to this Court within 10 days from the date of that decision.

6. The costs of this application shall be costs in the cause.

SC01-17 : JOSEPH LUNGU and OTHERS vs RESERVE BANK OF ZIMBABWE
Ruled By: GWAUNZA JA, PATEL JA and MAVANGIRA JA

This is an appeal against the judgment of the Labour Court setting aside an arbitral award in favour of the appellants which upheld their claim for the payment of arrear salaries and benefits.BackgroundThe appellants, being 153 in number, were employed as security guards on fixed-term contracts renewable every three months. ...

This is an appeal against the judgment of the Labour Court setting aside an arbitral award in favour of the appellants which upheld their claim for the payment of arrear salaries and benefits.

Background

The appellants, being 153 in number, were employed as security guards on fixed-term contracts renewable every three months. Their periods of employment ranged from 2007 and 2008 until January and April 2011 when their contracts of employment expired by effluxion of time.

Their contracts were not renewed because the project for which they were employed was finally wound up in 2011.

In July 2010, in a separate matter involving the respondent, its Workers Committee, and its employees, the first arbitrator (Nasho) ordered the payment of back pay, from 1 March 2009 to the date of the award, in line with the multi-currency system.

In conformity with that award, a Works Council Agreement was concluded, on 15 September 2010, to fix the back-pay due to all employees and the salary structure for non-managerial employees from 1 January 2010 onwards.

In a subsequent matter, the appellants in casu challenged the termination of their employment on the basis that their contracts had become permanent upon repeated renewal.

The second arbitrator (Mugumisi) dismissed their claim of unfair dismissal on 4 April 2012.

On appeal, the arbitral award was upheld by the Labour Court. That decision is currently pending an application for leave to appeal to this court.

On 10 December 2012, following the rejection of their unfair dismissal claim by arbitrator Mugumisi, the appellants filed a further claim for the payment of arrear salaries and benefits.

The third arbitrator (Mambara) found in their favour and awarded the payment of arrear salary and benefits, in accordance with the 2010 Works Council Agreement, from 1 January 2010 to the date when each claimant was retrenched.

The respondent, being aggrieved by that award, applied to the Labour Court for the review of the award.

Decision Appealed and Grounds of Appeal

The court a quo rejected two of the grounds of review mounted by the respondent.

It found, that, the Mambara award did not improperly seek to review or enforce the Nasho award. It also found, that, the prior decision of the court, upholding the Mugumisi award, was different from the matter currently before it because the former concerned back pay from the date of termination to the date of reinstatement as opposed to salary and benefits accrued before termination.

Consequently, it was not necessary that the current matter be held in abeyance pending the determination of the appeal in the earlier matter.

The court a quo found in favour of the respondent on the remaining two grounds of review:

(i) Firstly, it held, that, the Mambara award did operate to review and alter the court's previous decision that the appellants had not been unfairly dismissed. This resulted in uncertainty on the employment status of the appellants and the possible institution of other unnecessary claims.

Moreover, the arbitrator's findings, that, the appellants had implied permanent contracts of employment and that they had been retrenched were equally erroneous.

(ii) Secondly, the court found, that, the issue of the appellants grades was not part of the arbitrator's terms of reference. Thus, the arbitrator had misdirected himself in going beyond his remit and basing his award on extraneous terms of reference.

The court accordingly held, that, the review succeeded on these two grounds.

The arbitral award was set aside and substituted with the dismissal of the appellants claim.

The grounds of appeal in casu are that the court a quo erred in the following respects:

(i) In concluding, that, the arbitrator's award, mandating the quantification of an admitted liability, had the effect of altering the court's previous judgment.

(ii) In placing any significance on the arbitrator's misuse of the word retrenchment.

(iii) In concluding, that, the arbitrator had effectively conducted a re-grading exercise in determining what was due to the appellants.

(iv) In concluding, that, there was a reviewable issue raised before the court....,.

The Merits

Counsel for the appellants submits, that, the arbitrator did not go outside his terms of reference.

The Mambara award found, that, the 2010 Works Council Agreement (the 2010 Agreement) applied to all of the respondent's employees, including the appellants, in conformity with the Nasho award. It did not re-grade the appellants but simply provided that each claimant be paid in accordance with the 2010 Agreement from 1 January 2010 to the date of termination.

As regards the actual wording of the operative part of the award, he proffers the strange argument, that, the reference to 1 January 2010 is a mere typographical error and should have been a reference to 1 February 2009, which was the commencement date for payment claimed by the appellants.

He further argues, equally startlingly, that the use of the term “retrenched” in relation to the closing date for payment in the Mambara award is of no significance and must be regarded as being inconsequential. Rather, it must be read and construed as relating to the respective date of termination of employment of each appellant.

Counsel for the respondent counters, that, the arbitrator clearly went beyond the terms of reference set out at the beginning of his award.

Moreover, he erroneously applied the terms of the 2010 Agreement to the appellants by conflating various claims. The 2010 Agreement was confined to permanent employees and did not extend to the appellants who were employees on fixed term contracts.

Finally, he notes, that, the references to 1 January 2010 and retrenchment, in the operative part of the arbitral award, should not be regarded as mere typographical errors.

On the question of re-grading, arbitrator Mambara rejected the respondent's argument, that, the appellants had no specific grade in terms of their contracts of employment. Instead, he applied the Nasho award, which ordered that the salaries of the respondent's employees be regularised, coupled with the salaries specified in the 2010 Agreement.

The court a quo found, that, the arbitrator misdirected himself in re-grading the appellants and thereby going outside his terms of reference.

It is common cause, that, the arbitrator's terms of reference raised an unfair labour practice in the respondent's alleged failure to pay arrear salaries and benefits due to them from 1 February 2009 to the date of termination of their respective contracts of employment.

The arbitrator dealt with this question by following the Nasho award and adopting the lowest salary figure payable as stipulated in the 2010 Agreement.

In my view, this did not entail any re-grading of the appellants but simply involved applying the sums derived from the exercise conducted by the Works Council.

I am therefore unable to agree with the finding of the court a quo that the arbitrator exceeded his terms of reference.

The appeal accordingly succeeds in this particular inconclusive respect.

On the other hand, the operative part of the order delivered by the arbitrator is extremely problematic. It states:

“That the Respondent be and is hereby ordered to pay to each and every Claimant arrear salaries and benefits per the 16 September 2010 Works Council Agreement from 1st January 2010 to the date each and every claimant was retrenched.”…,.

I have no doubt that the learned arbitrator was alive to the fact that he was called upon to deal with claims for salaries and benefits from 1 February 2009 to the date of termination of each appellant's contract of employment.

This emerges clearly from his stated terms of reference and his comments at the beginning, and end, of his award.

I also have no quarrel with the trite proposition that technicalities should not be allowed to impinge upon or obstruct the delivery of justice in labour matters.

Nevertheless, I take the view that the order made by a judicial tribunal constitutes the decisive gravamen of its adjudicative process.

Moreover, it is that order that must be capable of obedience and practical enforcement by the parties concerned.

Its precise wording and exactitude of expression are therefore of paramount importance.

Consequently, where it is recklessly mis-pronounced, as it was in casu, it fails to achieve its fundamental purpose and cannot be condoned or endorsed by an Appellate Court.

To use the celebrated MacFoy phraseology, it is an arrant nullity and everything founded upon it must collapse.

In the instant case, the mis-citation of the date from which the appellants entitlement to their claims arose, i.e. 1 January 2010, is patently erroneous inasmuch as it fails to address the preceding period from 1 February to 31 December 2009.

Again, the reference to the date when each claimant was “retrenched” is entirely misplaced in the context of termination of contracts of fixed duration by effluxion of time.

As was quite correctly observed by the court a quo, the Mambara award operates to alter the earlier findings of the Mugumisi award, as confirmed by the Labour Court, that the appellants had not been unfairly dismissed.

The attendant implication of permanent employment status results in lack of certainty and the potential creation of other unnecessary claims.

In the event, I take the view that the two critical errors in the operative part of the order delivered in the impugned award are so fundamental to its validity that they cannot be disregarded and swept away as mere technicalities or typographical errors.

This conclusion effectively entails the dismissal of the remaining three grounds of appeal.

Scope of 2010 Agreement

Having disposed of the stated grounds of appeal, I still think it necessary, in the interests of justice and the finality of litigation, to consider a crucial aspect of the matter that was canvassed before the arbitrator, and the court a quo, but not properly addressed or determined by either tribunal.

This aspect concerns the exact scope of the 2010 Agreement and its possible extension to the appellants.

The arbitrator noted, that, the Nasho award required the appellants contracts to be regularised in line with the multi-currency system, from 1 March 2009 onwards. He then turned to the 2010 Agreement and concluded that it applied to the appellants.

In so doing, he referred to the minutes confirming the Agreement and signed by the parties on 27 September 2011. However, he did not reproduce the relevant portions of the Agreement or the confirmation minutes to explain or justify his conclusion that the benefits accruing from the Agreement extended to the appellants.

The court a quo also noted the operative part of the Nasho award that called upon the respondent to regularise its employees contracts. It then referred to the subsequent 2010 Agreement in which “it was resolved that a net salary of $500 per month be paid to all employees across the board for the period 1 March 2009 to December 2009.”

It further noted, that “the Works Council agreed to a salary structure for 1 January 2010 to date for its non-managerial grades” ranging from $500 to $1,092.

Again, the court did not reproduce the relevant clauses of the 2010 Agreement. Nor did it call for any evidence to be adduced, as it was statutorily empowered to do, from the signatories to that Agreement, to clarify or explain its provisions and scope of coverage.

In the event, the court did not proceed to consider the precise ambit of the Agreement and its implications for the appellants claims before the arbitrator.

Indeed, it made no finding whatsoever on this critical aspect of the matter, despite having recognised some sequential and causal nexus between the Nasho award and the 2010 Agreement.

It appears to be common cause, although even this may need clarification, that the present 153 appellants were part of the 1,078 claimants and beneficiaries of the Nasho award rendered in July 2010.

That award also ordered the parties involved to reconvene through the Works Council to regularise the employees contracts in line with the multiple currency system with effect from 1 March 2009.

Thereafter, the Works Council was convened in September 2010 and concluded the Agreement presently under consideration.

If this sequence of events is correct, and if the 2010 Agreement was designed to embrace all of the respondent's employees, it would follow that the appellants have an eminently justifiable claim to the benefits accruing from that Agreement.

In the circumstances, it seems just and equitable that this matter be remitted to the court a quo to clearly determine whether or not the scope of the 2010 Agreement extended to all of the respondent's employees - including the appellants in casu.

This will not only serve to ensure that justice is attained but also to secure finality to the protracted and costly litigation between the parties.

As regards costs, in view of the partial success coupled with the partial failure of the appeal, as well as the impending remittal of the matter to the court a quo, I think it fitting that each party should bear its own costs.

In the result, it is ordered as follows:

1. The appeal succeeds in respect of Ground 3 and is dismissed in respect of Grounds 1, 2 and 4 in the Notice of Appeal.

2. The judgment of the court a quo is set aside insofar as it relates to Ground 3 in the Notice of Appeal.

3. The matter is remitted to the court a quo:

(i) To determine, on the basis of the specific provisions of the Works Council Agreement concluded in September 2010, and the minutes accompanying the Agreement, and having regard to sworn evidence from the signatories to the Agreement, whether or not the salaries and benefits stipulated in that Agreement were intended to apply to the appellants; and

(ii) If, the answer to that question is in the affirmative, to quantify the salary and benefits due to each appellant in terms of the Agreement, from 1 March 2009 to the respective date of termination of each appellant's contract of employment, subject to the deduction of such payments as each appellant may have received by way of salary and benefits during the relevant period.

4. Each party shall bear its own costs in respect of this appeal.

SC51-14 : MADHATTER MINING COMPANY vs MARVELLOUS TAPFUMA
Ruled By: GWAUNZA JA, GOWORA JA and HLATSHWAYO JA

In Horace Nzuma and 2 Others v Hunyani Paper and Packaging SC137-11, the court issued an order in these terms:“The matter is remitted to the court a quo to exercise its equitable jurisdiction in determining the question of conversion of backpay into foreign currency and the applicable rate.”The effect of ...

In Horace Nzuma and 2 Others v Hunyani Paper and Packaging SC137-11, the court issued an order in these terms:

“The matter is remitted to the court a quo to exercise its equitable jurisdiction in determining the question of conversion of backpay into foreign currency and the applicable rate.”

The effect of the orders given in these two cases was to emphasize the position that it is the Labour Court - and not the Supreme Court - which is endowed with jurisdiction to apply principles of equity in its determination of labour disputes. The Labour Court's jurisdiction to determine labour disputes on the basis, inter alia, of equity can be gleaned from the import of section 2A of the Labour Court Act [Chapter 28:01], which is quoted in full below;

“2A Purpose of Act

(1) The purpose of this Act is to advance social justice and democracy in the workplace by -

(a) Giving effect to the fundamental rights of employees provided for under Part II;

(b)…,.

[Paragraph repealed by section 3 of Act 7 of 2005]

(c) Providing a legal framework within which employees and employers can bargain collectively for the improvement of conditions of employment;

(d) The promotion of fair labour standards;

(e) The promotion of the participation by employees in decisions affecting their interests in the work place;

(f) Securing the just, effective and expeditious resolution of disputes and unfair labour practices.

(2) This Act shall be construed in such manner as best ensures the attainment of its purpose referred to in subsection (1).

(3) This Act shall prevail over any other enactment inconsistent with it.”…,.

The principles of equity and social justice, as well as the imperative for the Labour Court to secure the just and effective resolution of labour disputes, are all called into question when it comes to determining the basis and formula for computing a debt (e.g. damages) suffered in Zimbabwe dollars but claimed in foreign currency. This is particularly so where such damages, being owed to an employee, can no longer be paid in Zimbabwe currency realistically or in a way that gives due value to the employee….,.

Accordingly, I will, in casu, do no more than be guided by the recent authorities on this matter that, have been cited above; Fleximail (Pvt) Ltd v Gift Bob Samanyau and Thirty Eight Others SC21-14 and Horace Nzuma and 2 Others v Hunyani Paper and Packaging SC137-11….,.

1….,.

2….,.

3. The matter is remitted to the Labour Court for a determination, in the exercise of its equitable jurisdiction, of the question and the applicable rate of conversion into foreign currency, of the damages due to the respondent in terms of paragraph 2 above.

SC65-18 : PIONEER TRANSPORT vs MAFIKENI
Ruled By: GARWE JA, MAVANGIRA JA and BHUNU JA

This is an appeal against a judgment of the Labour Court wherein the decision to dismiss the appellant from employment that had been made by the appellant's Managing Director was set aside whilst an earlier decision by the disciplinary committee, that the respondent be issued with a second written warning, was confirmed.

The facts of the matter may be summarized as follows;

The respondent was employed as a Creditor's Clerk by the appellant. He was charged with a number of acts of misconduct. He denied all the charges. A hearing was conducted by the disciplinary committee. On 30 January 2014, the Human Resources Manager communicated the disciplinary committee's decision to the respondent in the following terms:

“RE: DETERMINATION ON HEARING

Reference is hereby made to the internal disciplinary hearing finalized on 29 January 2014 in respect (of) cases in terms of SI67 of 2012 Annexure 2 Action Code:

(i) Offence number 2; 2.2 – Gross incompetence or inefficiency in performance of work.

(ii) Offence number 2; 2.3.1 - Gross negligence.

(iii) Offence number 3; 3.7 – Insubordination.

(iv) Offence number 3; 3.14 - Wilful disobedience of a lawful order given by the employer.

After deliberations, the hearing committee passed the following verdict:

(a) Presentation of case was not properly done.

(b) You need to change your attitude towards your job and to put more effort in your job.

(c) You shall report for duty to your normal duties with effective (sic) 1 February 2014.

In light of the above, the hearing committee then agreed that you be given a second written warning which will last for the period of 3 months.

If you are aggrieved with this decision, you have the right to appeal in terms of S.I.67 of 2012 appeal procedure.”

The complainant in the disciplinary hearing appealed to the Managing Director against the Disciplinary Committee's decision. There was no appeal by the respondent.

On 10 February 2014, the Managing Director wrote to the complainant in the following terms:

“Attention: COMPLAINANT
PIONEER TRANSPORT

Re: APPEAL AGAINST DECISION IN DOUGLAS MAFIKENI HEARING

I refer to your letter addressed to me dated 3 February appealing against the decision of the Disciplinary Committee in the hearing of Douglas Mafikeni passed on 29 January 2014.

I have read through the minutes of the hearing and looked at the deliberations made, and have come to the conclusion, that, the disciplinary committee made an error in coming up with the determination.

It is very clear that Douglas Mafikeni (sic) failed to meet set deadlines and submitted creditor's listing (sic) that was grossly incorrect showing a very high level of incompetence. Despite him having been given a written warning three months earlier he still failed to improve performance in executing his duties.

Matters of discipline are determined on a balance of probability, and, as such, all these factors of failure to meet deadlines, production of incorrect creditors listing even after having been given an extension. (sic)

THEREFORE, in light of the above, I hereby overturn the determination by the Disciplinary Committee, and the respondent is found guilty of the charges and the penalty is dismissal. The respondent (sic) should be dismissed effective 12 February.”…,.

On 12 February 2014, a letter was written by the Human Resources Manager to the respondent. It reads:

“This letter serves to inform you, that, following a disciplinary committee hearing that was concluded on 29 January 2014, where the disciplinary committee made a decision to give you a second warning, an appeal was made by the complainant against that decision in terms of Part E section E1.1 of the SI67 of 2012. (sic)

A decision was made by the office, made from the office (sic) of the Managing Director, as defined in Part A4 (definitions) of the Sixth Schedule, overturning the decision of the disciplinary committee.

The decision to overturn the disciplinary committee ruling was based on the fact that you failed to meet set deadlines, you also presented a creditors listing that was grossly incorrect showing a very high level of incompetence.

It is against this background that you were found guilty in terms of SI67 of 2012 Annexure 2 sections 2.2, for gross incompetence, section 2.3.1, section 3.7 and section 3.14.

You are therefore being dismissed from Pioneer Transport with effect from 12 February 2014 and you are further advised that you have the right to appeal to the Labour Court against this decision in terms of Part E section E.3 of the Sixth Schedule within 21 working days.”

Aggrieved by the decision to dismiss him, the respondent appealed to the court a quo, arguing, inter alia, that the Managing Director had erred in considering an earlier written warning which had, in any event, expired. The appellant's contention, on the other hand, was that the earlier written warning was relevant and was therefore properly taken into consideration.

The court a quo approached the matter as one in which it needed to examine whether the appellant, as the employer, had exercised its discretion judiciously in light of section 12B(4) of the Labour Act, on the basis that it could only interfere with such discretion if it was not so exercised.

The court a quo found, that, the earlier written warning had expired, and that, therefore, the Managing Director had misdirected himself in giving any consideration to it. On that basis, the court then interfered with the appellant's decision and set aside the dismissal imposed by the appellant's Managing Director but confirmed the disciplinary committee's decision that a written warning be issued.

It may be noted at this juncture, that, the respondent averred that the first written warning is non-existent as the appellant failed to produce a copy of it in the disciplinary hearing and to the court a quo.

The appellant has not shed any light on this issue.

The appellant has now appealed to this court against the court a quo's decision on the following grounds:

(i) The court a quo grossly erred at law in interfering with the penalty of dismissal for a misconduct that goes to the root of the contract;

(ii) The court a quo erred at law in making a finding, that, an expired warning cannot be treated as a record of employment service when imposing penalty contrary to the provisions of section 12B(4) of the Labour Act [28:01] which makes it mandatory to consider such;

(iii) The court a quo misdirected itself, factually, which misdirection amounts to a point of law, in that it made a finding that the decision of the Appeals Officer to impose a penalty of dismissal was solely hinged on the issue of a previous warning which was not the case as the Appeals Officer also considered other factors like the gravity of the offence, inter alia.

The appellant's prayer (as amended) is for an order that the appeal is allowed and that the decision of the court a quo be set aside and substituted with the following:

“That the appeal be and is hereby dismissed with costs.”

The last paragraph of the letter dated 30 January 2014, to the respondent, informing him of the decision of the disciplinary committee, pointed him to S.I.67 of 2012 with regard to his right to appeal should he be aggrieved.

He did not appeal.

As already pointed out earlier, an appeal was noted by the appellant's representative who was the complainant in the Disciplinary Committee hearing.

SI67 of 2012 is the “Collective Bargaining Agreement: Transport Operating Industry.”

It incorporates, in the Sixth Schedule thereof, the Code of Conduct applicable to the entire transport operating industry. Part E, in terms of which the complainant appealed to the Managing Director, provides as follows:

“E. APPEALS AND REVIEW OF MATTERS

A party which may be aggrieved by the decision of the Disciplinary Committee, as per D.1 above, may, within 5 days –

E.1 Appeal to the Chief Executive.

E.1.1 Appeals to the Chief Executive where the issue involves dismissal or any form of termination of employment shall be in writing, and shall state the grounds of appeal.”

By stating that “a party which may be aggrieved…, may appeal” the section gives the right to appeal against the decision of the disciplinary committee to any party - including an employer who may be aggrieved by the committee's decision.

Thus, whilst it is generally undesirable for an employer to appeal against decisions that are usually viewed as decisions of its own internal disciplinary bodies; in casu, the applicable law, that is to say, the Statutory Instrument, allows, in clear terms, for an appeal against the decision of the disciplinary committee by a “party which may be aggrieved.”

Accordingly, the employer, being an aggrieved party, acted within its statutory rights in appealing against the decision of the disciplinary committee.

The respondent's averments that he was not served with a copy of the said appeal and that he was not invited to make any submissions in relation thereto were not challenged.

In addition, note is also taken that the letter that triggered the complainant's appeal to the Managing Director is not part of the record. The appellant's legal practitioner was unable to shed any light regarding the non-availability of the letter on the record.

A fundamental rule of natural justice was broken when the Managing Director made the decision that he did without hearing the respondent.

As the respondent was not served with a copy of the appeal letter, only the appellant and its Managing Director are privy to the details of the appeal.

The proceedings before the Managing Director fell foul of the axiomatic requirement of the rules of fair play in the delivery of justice.

A decision that affects the respondent was made without him being heard by the maker of the decision.

In Musarira v Anglo American Corporation 2005 (2) ZLR 267 (S) the following was said:

“I would point out here, that, as long as a charge of misconduct is preferred by an employer against an employee, there is always a certain element of institutional bias, as the employer is the offended party. However, this happens to be the situation in all misconduct cases. What is important is that the misconduct matters are dealt with in a manner that is fair and impartial and that the rules of natural justice are followed.

The rules of natural justice, in such a case, are that the party concerned –

(a) Must be given adequate notice;

(b) Must be heard or be able to present his/her side of the story; and

(c) Should be allowed to call witnesses if he/she so wishes.

See Dabner v SA Railways and Harbours 1920 AD 588 at 598.”

In casu, the respondent was not heard in the appeal before the Managing Director. By reason thereof, the said appeal proceedings must be set aside.

So axiomatic is the audi alteram partem rule, that it would be unconscionable for this or any court to uphold proceedings wherein the rule was not complied with.

The proceedings before the Managing director are a nullity.

The Labour Court did set aside the Managing Director's decision - but for different reasons.

It decided the matter on the merits, and, in doing so, it erred.

The proceedings before the Managing Director having been a nullity, the appropriate course would have been for the court a quo to remit the matter to the Managing Director for a hearing that accords with the rules of natural justice.

In the circumstances, the decision of the Managing Director ought to be set aside.

It would, however, be undesirable to have the matter remitted to him for a rehearing. This is so because the fact that the Managing Director was prepared to and did determine the matter without hearing the respondent might justifiably create an impression of partiality on his part.

Justice must be seen to be done.

For these reasons, in the interests of justice, instead of having the court a quo remitting the matter to the Managing Director, this court will order that the Labour Court re-hear the appeal instead and ensure that the rules of natural justice are complied with.

Section 89(2)(a)(i) of the Labour Act empowers and enables the Labour Court to conduct such a hearing.

Labour matters ought not be dealt with and finalized on technicalities.

The rehearing of the matter by the Labour Court will ensure that this does not happen. This is so because if such a re-hearing is not ordered, especially after the nullification of the proceedings before the Managing Director, then, the merits of the matter would remain eternally undetermined, to the prejudice of one party or the other.

Section 89(2) of the Labour Act reads:

“(2)(a) In the exercise of its functions, the Labour Court may: in the case of an appeal –

(i) Conduct a hearing into the matter or decide it on the record; or

(ii) Confirm, vary, reverse or set aside the decision, order or action that is appealed against, or substitute its own decision or order; or

(iii)…,. (repealed); or

…,. (repealed).”

In Dalny Mine v Banda 1999 (1) ZLR 220 (S) McNALLY JA stated at 221B-C:

“As a general rule, it seems to me undesirable that labour relations matters should be decided on the basis of procedural irregularities. By this, I do not mean that such irregularities should be ignored. I mean that the procedural irregularities should be put right. This can be done in one of two ways:

(i) By remitting the matter for hearing de novo and in a procedurally correct manner;

(ii) By the tribunal hearing the evidence de novo.”

He continued at 222B:

“The point I am making is that when the Tribunal decides, as it did in this case, to exercise its powers under section 97(4)(a) of the Act, and to 'proceed with the appeal by way of a hearing' then it is starting afresh, as it were, on a clean page. The errors of the past are no longer relevant.”

He continued further at 222D:

“It does not seem to me, with respect, to be a compliance with section 4(1) if the Tribunal, for technical reasons, compels an employer to reinstate (or pay damages to) a person who has been clearly shown to have committed a dismissible offence.”

The applicable statute in Dalny Mine v Banda 1999 (1) ZLR 220 (S) was the Labour Relations Act. Section 97(4)(a) of that Act is similar to section 89(2)(a) of the Labour Act which is the applicable statute in casu.

Section 97(4)(a) of the Labour Relations Act [Chapter 28:01] (Act No.16 of 1985 as amended by Act No.20 of 1994) reads:

“Upon receiving notice of an appeal, the Tribunal may –

(a) Proceed with the appeal by way of a hearing; or

(b) Decide the appeal on the record; or

(c) Remit the matter to the senior labour relations officer concerned for further investigation, and, upon the conclusion of such investigation, proceed with the appeal by way of a hearing or decide the appeal on the record.”

The similarity in the wording of the relevant portions of the two sections (89(2) and 97(4)(a)) of the current and repealed statutes respectively) justifies the applicability of the reasoning as cited above from Dalny Mine v Banda 1999 (1) ZLR 220 (S) to the instant case.

In the result, the appeal succeeds for reasons different to those raised in the grounds of appeal, and, consequently, with a result different to that in the appellant's prayer.

Accordingly, the following order is made:

1. The appeal is allowed.

2. The judgment of the Labour Court be and is hereby set aside.

3. The matter is remitted to the Labour Court for a rehearing of the appeal before a different judge of that court.

4. Each party shall bear its own costs.

HB29-15 : JOYCE MAKUMBE vs ANDRISON MUNZVENGA
Ruled By: MUTEMA J and MOYO J

This is a custody dispute.

The appellant is the mother of the minor child whose custody is the subject matter of this appeal. The respondent is the father of the said minor child. The child, namely, Z, is a female who was aged two (2) years at the time the custody dispute was dealt with by the Magistrates Court. The Magistrate's Court sitting at Bulawayo, on 16 July 2014, awarded the custody of the minor child to the respondent who is the father of the child.

Dissatisfied with the order of the court a quo, the appellant then approached this Honourable court.

The grounds of appeal are as follows:

(1) The court a quo erred in fact in finding that it was in the best interests of the minor child that the two year old female minor child be removed from its mother, the appellant, and custody be awarded to the respondent.

(2) The court a quo erred in law in finding that this case constituted an exception to the general rule that mothers are custodians of children born out of wedlock.

(3) The court a quo erred in fact in holding, that, the appellant once attempted to abort the minor child while no evidence was led to that effect.

(4) The court a quo seriously misdirected itself in holding, that, the appellant did not enlighten the court as to where the minor child would be staying, the security and health environment under which the minor child would survive, whereas the appellant had clearly told the court as to where she was staying with the child.

(5) The court a quo erred in law in failing to make a specific order of access of the child by the appellant.

It is important, at this juncture, to note, that, this is a case where the parents of the minor child are not married to each other and therefore we are dealing with the issue of custody as it relates to the rights of parents of children born out of wedlock.

The crux of the matter, in our view, is whether the respondent, as the father of a minor child born out of wedlock, has any claim or entitlement to the custody of his minor child.

The legal position is that, in Zimbabwe, custody rights in relation to a child born out of wedlock vest in the mother of the child. The father of such a child is equated to any third party, and, as such, the custody rights that vest in the mother can only be interfered with if the mother is not exercising such rights properly.

We cannot put it any better than the case of Cruth v Manuel 1999 (1) ZLR 7 (SC). In that case, at 14E-G, this is what MUCHECHETERE JA…, had to say:

“The rights of legitimate parents, and those of the mother of a child born out of wedlock, cannot be interfered with ordinarily. Third parties (including the father of a child born out of wedlock) are placed in the same category, and can only interfere with those rights in the interests of the child when they are not being exercised properly.

In my view, it should first be appreciated, that, it is the rights of the parents, and the mother, which the third parties would seek to interfere with, and they cannot interfere with another's rights if the other person is exercising them properly.

The trigger that only warrants interference must therefore be an allegation that the rights are not being exercised properly and it is therefore in the interests of the child that these rights be interfered with.

The welfare of the child, in cases of this nature, only becomes an issue when there is an allegation that the exercise by the mother of her rights raises some concern.

It therefore follows, in my view, that a father of a child born out of wedlock cannot come to court and simply allege, that, because he is the father of the child, or he is richer than the mother, or he pays maintenance etc, it is in the interests of the child that the rights of the mother should be interfered with.”

The learned Judge further states, at page 15A, that:

“This would, in my view, be elevating the legal status of an illegitimate father to that of a spouse in a divorce situation and negating the accepted principle of law, that, he has no inherent right in the child born out of wedlock.”

EBRAHIM JA had this to add at page 16A:

“The court is being asked to substitute its own decision for that of a person in whom the parental authority of the minor child concerned vests where such person has not been shown to be incompetent to make such a decision.

I do not believe that the function of the court, as the upper guardian of all minors, embraces the right to assume such a role. The mere fact that the court may reach a different conclusion as to where the best interests of the minor child lie does not automatically make you the best arbiter of such an issue.

Accordingly, it is my view, that, the starting point in conducting an enquiry of this nature is whether the third party instituting the enquiry has provided some basis on which a finding could be made that the court is more competent than the person having parental authority to make the decision.

If no such basis exists, the enquiry can proceed no further, whether the third party is the father of a minor child born out of wedlock or otherwise.

If the law is to be changed with regard to such fathers, the decision must be that of the legislature not the court.”

The aforestated case lays the following foundation in our law:

(1) That, the father of a child born out of wedlock has no inherent rights of custody as opposed to the mother in whom parental authority in such a situation vests.

(2) That, the father of a child born out of wedlock is equated to any third party competing for custody rights.

(3) That, for the father of a child born out of wedlock to challenge the custody rights vested in the mother with success, he should lay a proper foundation, like any other third party would, for the interference with the mother's custody rights.

In his founding affidavit, the respondent stated, that, he lived with the child from when the child was eight (8) months old as the mother attended a Nursing School. He also says he fears that the mother would expose the child to human trafficking and baby dumping. He further states, that, he is permanently employed and can fully support his daughter.

It is our considered view, that, the respondent's affidavit, that was filed before the court a quo, barely lays any ground or foundation for this court to interfere with the parental rights that are vested in the appellant as the mother of a child born out of wedlock.

It is clear, that, in launching the application in the Magistrates Court, the respondent was of the view that he is at par with the appellant in so far as parental authority is concerned.

The respondent did not appreciate, that, his position is in fact similar to any third party who wants to wrestle custody rights from the mother.

His founding affidavit falls far short of meeting the test as clearly stated in the case of Cruth v Manuel 1999 (1) ZLR 7 (SC).

It is for these reasons that we find that there is no single reason on the court record that warrants an interference with the parental rights that vest in the appellant as the mother of the child.

We accordingly find that the learned magistrate misdirected himself in awarding custody of a child born out of wedlock to the father without first making sure that the father had sufficiently tabulated, before the court, cogent reasons why the appellant, as a mother of a child born out of wedlock, should be stripped of such rights.

We accordingly allow the appeal.

The issue of maintenance immediately arises as the father of the minor child has a legal duty to provide for the upkeep of the minor child.

The appellant has claimed maintenance in the sum of $300 per month.

We, however, are not in a position to deal with the issue of maintenance as all the relevant factors and considerations have not been canvassed. It is our view, that, the matter should be remitted back to the Magistrates Court, sitting as the Maintenance Court, for an award to be determined therein after all the relevant factors, that is, the child's needs, the parents respective means, and their respective expenses, have been taken into account.

We accordingly make the following order:

(1) The order of the court a quo is set aside and substituted with the following:

(a) The custody of the minor child, namely, Z, be and is hereby awarded to the appellant.

(b) The issue of maintenance for the child is hereby referred back to the Magistrates Court for a proper assessment to be made after consideration of all the relevant factors.

(c) That the respondent pays the costs of this appeal.

SC08-16 : CFI RETAIL (PRIVATE) LIMITED vs ERIC MANYIKA
Ruled By: MALABA DCJ, ZIYAMBI JA and GOWORA JA

After hearing counsel for the appellant, the appeal was allowed with costs and the order of the court a quo set aside. The matter was remitted to the court a quo for it to be determined on the merits. It was indicated that reasons for the decision would follow in ...

These are they

The respondent was employed by the appellant as an Empty Bottles Clerk until August 2009 when he was retired after having attained the retirement age of sixty (60) years in January 2009. Mr Manyika had originally been an employee of the then Farmers Co-op. He had joined the Farmers Co-op Pension Fund in 1982. Under that Pension Fund's regulations the date of retirement was said to be January 2014. In 1995, there were changes in the company and a merger which saw the creation of the CFI Pension Fund. The pension regulations were changed with the passage of time. Under the CFI Pension Fund regulations, the age of retirement was lowered to 60 years and all the employees were informed of the change through their subsidiaries. The information was also communicated to the employees through their payslips. The same information was also placed on the notice boards which were accessible to all employees.

The respondent was still of the belief that his retirement age was sixty-five (65) years which would have been reached on 30 January 2014. According to the new pension regulations, the respondent should have been retired from work in January 2009. He was however retired in August 2009. The appellant admitted that there was an oversight on their part as there had been changes in the Human Resources Department. Mr Manyika unsuccessfully pleaded with the appellant to remain at work until January 2014.

Mr Manyika was aggrieved by the decision of the appellant and approached a labour officer complaining of unfair labour practice. The dispute was referred to compulsory arbitration.

After hearing both parties, the arbitrator issued the following award:

“Having carefully considered both oral and written submissions and evidence from both parties, I hereby declare that:

1. Respondent committed an unfair labour practice by prematurely retiring Eric Manyika on 31 August 2009 having given him short notice.

2. In light of this finding, and as a remedy to the unfair labour practice, I hereby order respondent to comply with one of the two options given below:

Either: (a) Reinstate claimant without loss of pay and benefits from 1 September 2009 and keep him to the pay roll until his normal retirement age on 13 January 2014;

(b) If reinstatement is no longer an option for whatever reason, pay claimant the following:

(i) Full pay and benefits from 1 September 2009 to 31 July 2011.

(ii) Cash-in-lieu of leave from 1 September 2009 to 31 July 2011.

(iii) 12 months pay as damages for loss of employment before normal retirement age.

(iv) 3 months notice pay.

(v) Any other terminal benefits which claimant may be legally entitled.”

The appellant was aggrieved by the decision of the arbitrator and approached the Labour Court. The appellant lodged an application for interim determination in terms of section 92E(3) of the Labour Act [Chapter 28:01] (“the Act”). It however withdrew the application.

On the day of the hearing, the respondent raised a point in limine alleging that the appellant had approached the court with dirty hands since it had not complied with the arbitrator's decision.

The Labour Court held that the appellant ought to have complied with the arbitrator's award before approaching the court. It upheld the point in limine and dismissed the appeal from the arbitral award.

The appellant noted an appeal to this Court on the following grounds:

1. The court a quo erred at law in finding that the appellant's failure to comply with an arbitration award it was appealing against constituted dirty hands and even then, to the extent that the appellant should be denied audience.

2. The court a quo erred at law and erred grossly on the facts in finding that the appellant was contemptuously failing to comply with the award. In so finding, the court disregarded the fact that the amount payable by the appellant to the respondent was not quantified.

3. The court a quo erred at law in finding that the appellant had dirty hands when the appellant's non-compliance was one in the context of a pending application for interim relief.

4. Assuming, without conceding, that the appellant's hands were dirty such as to be denied audience, the court a quo erred at law in dismissing the appellant's appeal for the reason alone. Instead, the court a quo should have denied the appellant audience but postponed the matter till such time when the appellant had complied with the arbitration award.

Section 92E of the Labour Act [Chapter 28:01] provides as follows:

“Section 92E: Appeals to the Labour Court generally:

(1) An appeal in terms of this Act may address the merits of the determination or decision appealed against.

(2) An appeal in terms of subsection (1) shall not have the effect of suspending the determination or decision appealed against.

(3) Pending the determination of an appeal, the Labour Court may make such interim determination in the matter as the justice of the case requires.”

Section 92E(2) of the Labour Act [Chapter 28:01] only provides that the noting of an appeal to the Labour Court against a determination or decision does not have the effect of suspending the operation of the determination or decision appealed against. The purpose of the section is to provide for the effect of the noting of an appeal in terms of the Act on the enforcement of the determination or decision. The provision is the reversal of the common law principle that the noting of an appeal against a judgment or decision of a tribunal or lower court suspends the execution of the judgment or decision pending the determination of the appeal.

Section 92E(2) of the Labour Act [Chapter 28:01] does not impose an obligation on a party appealing against the determination or decision to act in terms of the determination or decision appealed against pending determination of the appeal. In other words, there is no provision requiring the appellant to first comply with the determination or decision appealed against in order to preserve the right of appeal.

There are remedies available to a party in whose favour the determination or decision appealed against has been made for its enforcement in the absence of an interim determination made by the Labour Court suspending the determination or decision appealed against pending determination of the appeal. The effect of the section is that it leaves the party in whose favour the determination or decision was given with a right to enforce the determination or decision appealed against by having it registered with the High Court or any Magistrates Court in terms of section 98(14) of the Labour Act [Chapter 28:01].

Section 92E(3) of the Act has no effect at all on the right to appeal.

It leaves the appellant with a right to apply for an interim determination suspending the execution of the determination or decision appealed against. The right holder may exercise the right or choose not to do so. He or she is not obliged to apply to the Labour Court for an interim determination. The fact that a party has opted, in the exercise of discretion, not to exercise a right given by law does not mean that he or she is guilty of approaching the court with dirty hands. Both parties are equally protected by the law as they have remedies available to them.

When the Labour Court refuses to hear an appeal on the basis that the appellant has not complied with the determination or decision appealed against, it is creating a remedy not provided for by the law.

The court a quo misapplied the principle of dirty hands to the facts of the case.

The principle of dirty hands governs a situation where a party is under a direct obligation imposed by law to act in a specific manner; which obligation the party deliberately refuses to perform. It is a time honoured principle based on the need for litigants who approach a court of law seeking relief to do so with the required degree of truthfulness and honesty. It does not apply in cases where the appellant fails to act in terms of a determination or decision appealed against under section 92E of the Labour Act [Chapter 28:01] because he or she would not be under an obligation to first comply with the determination or decision appealed against in order to be heard.

The right to be heard by a court in proceedings that have been properly instituted is a fundamental right that should not be lightly denied to a party.

In this case, the appellant was not guilty of contempt of court as suggested by the Labour Court because it was exercising the right to appeal to the court given by law. The court was obliged to hear the appellant in the appeal which was properly before it.

In the case of Zimbabwe Mining Development Corporation & Anor v African Consolidated Resources PLOC SC01-10, CHIDYAUSIKU CJ stated the following:

“The right of appeal is fundamental and critical to our justice system. Where the law confers the right of appeal on a litigant it should not be rendered nugatory or abrogated without due process. Due process requires that a case proceeds to finality, namely, the giving of a judgment. Once a judgment is given, the losing party who has a right to appeal is entitled, if he so wishes to note an appeal.”

See also Claudius Marimo and Anor v The Minister of Justice, Legal and Parliamentary Affairs SC25-06.

A party wishing to apply to the Labour Court for interim determination pending determination of the appeal against an arbitral award would have to consider the question whether the award appealed against is enforceable. The party contemplating to have the award registered with the High Court or Magistrates Court pending determination of the appeal by the Labour Court would have to consider the same question.

In this case, the award was not sounding in money.

It simply directed payment of damages. The parties were given the option of approaching the arbitrator in the event that they failed to agree on the quantum of damages. It goes without saying that the award could not be executed because the person in whose favour it was made could not even register it. That explains why the respondent did not take steps to enforce the award pending determination of the appeal notwithstanding the effect of section 92E(2) of the Labour Act [Chapter 28:01]. It also explains why the appellant was entitled, in the circumstances, not to apply for an interim determination.

If an arbitral award is patently ultra vires the jurisdiction of the arbitrator or is for some reason not executable what would happen if the Labour Court refuses to hear and determine the appeal on the ground that the appellant must first comply with the award appealed against?

It is clear that the right to be heard in the determination of the appeal noted in terms of the Labour Act remains extant even where an interim determination in the matter of the determination or decision appealed against is made.

At law, there cannot be a determination of an appeal without a hearing.

If the right to be heard on appeal were to be denied to the appellant on the ground that it had not applied for and obtained an interim determination suspending execution of the arbitral award, it would mean that the granting of an interim determination is obligatory when section 92E(3) of the Labour Act [Chapter 28:01] is a discretionary provision. A party may apply for an interim determination only when it realizes that there are chances of the determination or decision appealed against being executed pending determination of the appeal.

Section 92E(3) of the Labour Act is not limited to applications for suspension of determinations pending the outcome of the appeal. It is further not limited to interim determinations sought by a litigant against whom the determination or decision appealed against was made. A litigant in whose favour a determination was made, who is faced with an appeal against the determination or decision, may seek an interim determination.

If the court a quo's decision refusing to hear the appellant on the basis that it had not complied with the order was based on a sound principle of law, it would mean that the order would never be enforced and there would never be an appeal.

What is worse is that the court a quo dismissed the appeal instead of removing it from the roll.

SC131-21 : CHANTELLE MUTESWA vs FRANK BUYANGA SADIQI
Ruled By: UCHENA JA, CHITAKUNYE JA and KUDYA JA

This is an appeal against the judgment of the High Court dated 18 March 2020 in which it granted to the respondent joint custody and joint guardianship of the minor child.

In the same order, the court a quo, thereafter, ordered that an investigation be conducted by the Department of Social Welfare into how the parents were to exercise joint custody and joint guardianship.

The appellant appealed to this Court and has argued that joint custody and joint guardianship is not in the best interests of the minor.

Counsel for the appellant conceded, that, the court a quo's decision on the applicability of the common law, as enunciated in the court a quo's paragraph 1 of this order, is correct.

That paragraph reads as follows:

“The common law rule that gives the mother of a child born out of wedlock sole guardianship and sole custody and denies the natural father of such a child parental power is inconsistent with sections 56(1), 56(3), 81(1)(a) of the Constitution of Zimbabwe 2013 and is invalid.“

The appellant took issue with the granting of the joint custody and joint guardianship of the minor child before an inquiry into what would be in the best interests of the child had been made.

Counsel for the appellant submitted, that, the best interests of the minor child should have been inquired into before granting joint custody and joint guardianship.

In response, counsel for the respondent, by reference to the chicken and egg conundrum, argued that while investigation was essential, the court a quo correctly granted joint custody and joint guardianship and thereafter ordered that an investigation be conducted.

In our view, the welfare of the minor child is delicate and important. It should not be prematurely exposed to unverified parental circumstances.

It is therefore our view, that, the court a quo should not have determined the issue of joint custody and joint guardianship before the investigations it ordered in paragraph 4 had been done. In the result:

1. The appeal partially succeeds.

2. The court a quo's order in paragraph 1 is upheld.

3. The court a quo's order in paragraphs 2, 3 and 4 are hereby set aside.

4. The matter is hereby remitted to the court a quo for it to determine the issue of joint custody and joint guardianship after an inquiry as to whether or not joint custody and joint guardianship, in the circumstances of the parties, is in the best interest of the child.

5. In the case of a finding that it is in the best interest of the child, how joint custody and joint guardianship should be exercised without jeopardizing the best interest of the child.

6. Each party shall bear its own costs.

SC134-21 : OK ZIMBABWE LIMITED vs BENJAMIN TAZVIVINGA
Ruled By: GWAUNZA DCJ, HLATSHWAYO JA and BERE JA

This is an appeal against the default judgment granted by the Labour Court on 2 November 2016.BACKGROUND FACTSThe respondent was employed by the appellant as a till operator. On 30 June 2015, there was a scuffle between the respondent and a customer over an issue of change. A spot check ...

This is an appeal against the default judgment granted by the Labour Court on 2 November 2016.

BACKGROUND FACTS

The respondent was employed by the appellant as a till operator. On 30 June 2015, there was a scuffle between the respondent and a customer over an issue of change. A spot check was conducted and a shortfall of $45 was discovered in the respondent's till. The respondent was asked to write a report of the incident and the shortfall.

In the report, he stated, that, the shortfall was caused by $50 which he had given to a fellow till operator, Nancy Chawanza, who had forgotten to return the money. The respondent also stated, in the report, that, he had served a customer and given him $180 cash back instead of $130. He averred that the customer later returned the $50 after realising the error and he replaced the money in his till without notifying his supervisors.

The respondent was subsequently charged with the offence of deliberately giving untrue or incorrect information and for unsatisfactory work performance.

A disciplinary hearing was conducted, and he was found guilty, and was subsequently dismissed.

He appealed against the decision to the Local Joint Committee which upheld the determination and the dismissal. Aggrieved, the respondent appealed to the National Employment Council for the Commercial Sections (NEC) which upheld the determination and dismissed the appeal.

As a result, the respondent noted an appeal with the Labour Court on 1 June 2016.

The appellant failed to file a notice of response at the Labour Court within the stipulated time, only to attempt to do so some four (4) months later, on 18 October 2016, together with heads of argument. This was so despite the appellant having been favoured with a letter from the Registrar of the Labour Court calling on it to file a response.

At the hearing of the matter, the court a quo proceeded in terms of Rule 22(b)(1) of the Labour Court Rules, 2006 (SI59 of 2006) (heinafter referred to as “the Rules”) and entered default judgement against the appellant.

Aggrieved by the decision of the court a quo, the appellant noted an appeal to this Court on the following grounds:

(a) The court a quo erred, on a question of law, by proceeding to enter default judgment against the appellant in circumstances in which the appellant had filed a notice of response, albeit belatedly, as well as heads of argument which would have enabled the court to determine the matter on the merits.

(b) The court a quo erred, on a question of law, by failing to find, that, the explanation which was given by the appellant for the delay in filing the Notice of Response constituted good cause for the delay.

(c) The court a quo made an error, on a question of law, by not taking into account the nature of the case and failing to apply its discretion judiciously, more specially by not considering the evidence on record which demonstrated that the respondent had admitted to the offences with which he was charged, which offences attracted a penalty of dismissal.

(d) The court a quo, in any event, erred, on a question of law, by failing to give reasons for the judgment which is appealed against. A failure to give reasons constitutes a judicial irregularity.

SUBMISSIONS BEFORE THIS COURT

At the hearing of the appeal, counsel for the appellant argued, that, the court a quo erred in not providing reasons for its decision, which was that of the default judgment.

Per contra, counsel for the respondent submitted, that, since what was being appealed against was a default judgement, it could only be set aside through an application for rescission of that judgment.

He further submitted, that, the appellant had not requested the reasons from the Labour Court.

APPLICATION OF THE LAW TO THE FACTS

After hearing submissions, my view is that the sole issue to be determined is whether the default judgment entered by the court a quo is appealable.

The respondent filed its notice of appeal to the Labour Court on 1 June 2016. In terms of the Labour Court Rules, 2006, the appellant had 14 days within which it could file its notice of response.

Rule 19(2) of the Labour Court Rules, 2006 provides as follows:

“(2) The registrar, shall, within thirty days of receiving a notice of appeal in terms of subrule (1)(d), give notice in Part I of Form LC2 to the respondent —

(a) To complete, in three copies, a notice of response to the appeal in Part II of Form LC2; and

(b) To do the following within fourteen days of the date when the registrar gives notice to the respondent under this subrule —

(i) Serve one copy of the notice of response on the appellant: and

(ii) File with the registrar one of the other copies of the notice of response, together with proof (as required by Rule 11) that the notice of response was served on the appellant….,.”

The appellant failed to adhere to the Rules of the court, and it later filed its notice of response and heads of argument way out of time - some four (4) months after the Registrar had given the appellant notice.

There is no evidence on record that an application for condonation for late filing of the notice of response and heads of arguments was made.

It therefore follows, that, the court a quo granted a default judgment in terms of Rule 22(b)(1) of the Labour Court Rules which provides as follows:

“22 Where a party fails to file a Notice of Response

Where notice has been given to a party to file a notice of response within the period specified in Rule 14, 15 or 16 and that party fails to comply, the matter shall nevertheless be set down in terms of Rule 21, and if, on the day of hearing, the defaulting party —

(a)…,.

(b) Does not appear or show good cause why he or she did not file a response, the Court may, according to the nature of the case, or as the justice of the case requires —

(i) Enter a default judgement against the defaulting party;”

A reading of the above provisions will show, that, a respondent who has been served with a notice to respond by the Registrar must file its notice of response within 14 days and serve both the appellant and the Registrar.

Failure to act in terms of the above Rules of court results in the offending party being barred and default judgment entered against him at the discretion of the court.

In casu, the appellant, in the court a quo, was barred from making submissions as it had filed its notice of response out of time - which fact the appellant admitted in its heads of argument. It therefore followed that judgment was granted in default.

The court, in Katritsis v De Macedo 1966 (1) SA 613 (A), held that:

“It is clear from the authorities that the default in regard to a defendant is not confined to his failure to file the necessary documents required by the Rules in opposition to the claim against him, or to appear when the case is called, but, comprises also failure to attend Court during the hearing of the matter.”

As the judgment that was given by the court a quo was a default judgment in nature, the question that ought to be asked is: whether one can appeal on the merits before the bar has been lifted.

According to our law, a party cannot appeal against a default judgment.

The correct procedure would be for that party to make an application for the judgment to be rescinded first: see Chintengo v Tredcor & Anor SC67-19.

This approach was underlined by this Court in Sibanda and Ors v Nkayi Rural District Council 1999 (1) ZLR 32 (S) where it held as follows:

“The present appeal is therefore against the order of 23 May 1997 dismissing the application for rescission of the order made on 8 November 1996. That order of 23 May 1997, as I understand it, was effectively a default judgment. The practitioner who appeared for the appellants presented no submissions on the merits. There were no reasons given for judgment. Once the postponement was refused, the appellants were effectively in default. Procedurally, therefore, the appellants should have sought a rescission of the default judgment of 23 May, rather than appeal against it. On this ground alone, the appeal must fail.”…,.

In Zvinavashe v Ndlovu SC 2006 (2) ZLR 372 (S) it was held:

“The defining feature of a judgement granted after a party fails to appear is the default of the absent party…; that decision remained a default judgment whose setting aside could only follow a successful application for its rescission.”

This Court, again, had the occasion to deal with a similar matter in Guoxing Gong v Mayor Logistics (Pvt) Ltd and Anor SC02-17 wherein BHUNU JA held as follows:

“It is trite, that, save in special circumstances which do not concern us here, no appeal lies to this Court against a default judgment which is normally reversed by rescission of judgment or a declaration of nullity. It therefore follows, that, in the absence of special circumstances, no valid ground of appeal can be laid at the door of this Court concerning the propriety or otherwise of a default judgment. Whether or not there was non-joinder or any other irregularity pertaining to the default judgment, that is a complaint to be laid at the court a quo's door and not this Court.”

The appellant has invited this Court to deal with the merits of this matter as it is seized with all the material facts it needs to make a decision. He relies on the case of Madza & Ors v The Reformed Church in Zimbabwe Daisyfield Trust & Ors SC71-14 wherein ZIYAMBI JA held as follows:

“This court is always reluctant to decide matters at first and last instance although it is quite possible that it may do so in exceptional circumstances.”

Unfortunately, this case does not fall into the category of 'exceptional circumstances' as referenced above.

There is nothing exceptional in the circumstances, but, rather, what is there is a disregard of proper practice and procedure that a default judgment can only be set aside by its rescission. It follows, that, as this is not one of the exceptional circumstances, this Court cannot be moved to hearing this matter in the first and last instance: see Bakari v Total Zimbabwe (Private) Limited SC21-19.

DISPOSITION

The appellant, having had default judgment entered against it, and having not taken steps to have it rescinded, that default judgment remains extant. No appeal can lie against it.

The present purported appeal is improperly before this Court, and, it is, accordingly, struck off the roll with costs following the outcome.

SC141-21 : WISE GARIRA and SHEPHARD MASHINGAIDZE and BAYAI BAYAI vs NATIONAL ENGINEERING WORKERS UNION and FIRST CAPITAL BANK
Ruled By: GUVAVA JA, BHUNU JA and KUDYA AJA

This is an appeal against the whole judgment of the High Court (the court a quo) which ordered the removal of the three appellants from being signatories to the first respondent's Bank account with the second respondent.The appeal is opposed by the first respondent....,.BRIEF BACKGROUND OF THE CASEThe first respondent ...

This is an appeal against the whole judgment of the High Court (the court a quo) which ordered the removal of the three appellants from being signatories to the first respondent's Bank account with the second respondent.

The appeal is opposed by the first respondent....,.

BRIEF BACKGROUND OF THE CASE

The first respondent is a duly registered trade union representing the interests of employees in the Engineering, Iron and Steel sector (hereinafter referred to as “the Union”). The Union opened and maintains a Bank Account Number 6327897 with the second respondent Bank.

On the other hand, the first and second appellants were employed by the Union as its President and Secretary General, respectively, whereas the third appellant was its Trustee.

At the inception of the Bank account, the three appellants were appointed by Union resolution, dated 15 February 2019, as signatories to the said Bank account in their respective capacities as Union officials. The union then sought to remove the appellants from the panel of signatories to its Bank account on the basis that they had ceased to be union officials.

In its founding affidavit, deposed to by Ben Mambara, the Union averred, that, the first and second appellants were dismissed from employment following disciplinary proceedings on 22 April 2019 and 14 June 2019, respectively. The third appellant's trusteeship had expired through the effluxion of time.

The Union provided documentary evidence of the appellants dismissal from office.

The appellants however resisted their removals from being Bank account signatories on the basis that they were still Union officials.

They also challenged the authenticity of the Union resolution that authorised their removal as signatories to the Union bank account.

They challenged the legitimacy of Ben Mambara as the incumbent President of the Union and deponent to its founding affidavit.

In that vein, they refused to relinquish their respective mandates as signatories to the Union's bank accounts hence the application for their removal as Bank signatories in the court a quo.

The case has been the subject of various conflicting judgments in the court a quo which are now pending in this court on appeal.

On 23 January 2020, MUSHORE J issued a lengthy order in favour of the appellants under case number HC8111/19. The order basically declared that the three appellants were the legitimate office holders entitled to run the affairs of the first respondent without let or hindrance. On the other hand, the order declared Ben Mambara to be an illegitimate President of the first respondent.

In short, the judgment restored the status quo ante prior to the appellants dismissal from office.

The judgment is now a subject of appeal and it triggered a series of other appeals under appeal case numbers SC27/2020, SC32/2020, and SC34/2020.

Following the restoration of the status quo ante by MUSHORE J's order the respondents were aggrieved by the manner in which the appellants were handling the first respondent's funds.

Resultantly, the first respondent, represented by Ben Mambara, approached the court a quo under case number HC6844/19 seeking their removal from office as signatories of its Bank account.

The first respondent was successful in this respect.

The current appeal challenges the judgment on the basis that MUSHORE J's order had barred Ben Mambara and six others from acting as the Union's officers. The appellants claim to have been declared the legitimate signatories to the Bank account by the judgment which is still extant.

Notwithstanding the appeal, the first respondent sought leave of the court a quo to execute the order removing the appellants from being signatories to its Bank account under case number HC444/20.

CHIKOWERO J dismissed the application.

Another application, for the re-activation of the Union's bank account was dismissed by MUSITU J on 15 September 2020.

DETERMINATION OF THE COURT A QUO

The court a quo found, that, Ben Mambara had the requisite authority to represent the Union.

In coming to that conclusion, the learned judge a quo reasoned that the Union, being a legal persona, could only be represented by a natural person duly authorised thereto by a valid Union resolution.

Consequently, upon the removal of the first appellant from office as Union President, the Union, by resolution, dated 15 February 2019, replaced the first appellant with Ben Mambara. The resolution also conferred him with authority to represent the respondent in these proceedings.

The resolution reads in part:

“IT WAS RESOLVED:

2. That the President, Ben Mambara, shall sign documents and represent the Union and at NEC level.

SIGNED AT BULAWAYO this 15th February 2019.

Signed
……………………………………
(SECRETARY).”

Having found that Ben Mambara was properly appointed as the Union President and Union representative, the learned judge a quo proceeded to hold, that, the appellants were no longer Union officials. That being the case, they could no longer continue to be signatories to the Union's bank account.

On the basis of such finding, he proceeded to issue the following order:

“IT IS ORDERED THAT:

1. The first respondent be and is hereby ordered to delete or remove Shepard Mashingaidze, Wise Garira, and Bayayi Bayayi from being signatories of applicant's Account No.6327897 held with the 1st respondent.

2. The 2nd to 4th Respondents jointly and severally one paying the others to be absolved, pay costs at the legal practitioner and client scale.”

Counsel for the first respondent has not, however, sought to sustain and enforce the above order.

She has, in fact, implored the court to exercise its review jurisdiction under section 25 of the Supreme Court Act [Chapter 7:13] on account of perceived irregularity.

Wherefore she prayed for an order in the following terms:

“Having utilised the powers granted to it under section 25 of the Supreme Court Act [7:13], the following is ordered:

(a) Appeals under S-27-2020, S–32–2020, S–34-2020 and S222-20 be and are hereby set consolidated.

(b) The judgment of the High Court under HC8111/2019 granted by MUSHORE J on 23rd January 2020 be and is hereby set aside.

(c) The judgment of the High Court under HC6844/20 by TAGU J on 20th May 2020 be and is hereby set aside.

(d) The judgment of the High Court under HC444/20 granted by CHIKOWERO J on 8th July 2020 be and is hereby set aside.

(e) The judgment of the High Court under HC594/20 by MUSITHU J on 15th September 200 be and is hereby set aside.

(f) HC8111/19 is remitted back to the High Court for a hearing de novo before a different judge.

(g) Pending the determination of HC8111/19, 2nd Plaintiff, third plaintiff, 3rd-9th Defendants Plaintiff shall not take any steps that will interfere with the operations of the 1st Defendant.…,.

2. It is thus prayed.”

It is plain that the above relief sought is premised on the ill-conceived assumption that the court would grant the request for consolidation.

Paragraph 'g' of the draft order, however, seems to have some merits because it seeks to protect the Bank account from abuse by persons who are, for the time being, no longer its officials pending the final determination of the parties competing rights.

The Court, having dismissed the prayer for consolidation, paragraphs (a) to (f) of the first respondent's prayer cannot stand as they are premised on the envisaged consolidation which never materialised.

For that reason, the Court cannot interfere with appeals which are not before it.

I will therefore focus on the instant appeal before this Court.

SC143-21 : HAPPISON MUCHECHETERE vs ZIMBABWE BROADCASTING CORPORATION (PVT) LTD and RETIRED JUSTICE JAMES DEVITTE N.O. and GIBSON MUNYORO
Ruled By: GWAUNZA DCJ, UCHENA JA and MAKONI JA

This is an appeal against the entire judgment of the Labour Court handed down on 10 March 2017. The Labour Court dismissed the appellant's application for review challenging the disciplinary proceedings that led to his dismissal from the first respondent's employment.There were no appearances for the second and third respondents.FACTUAL ...

This is an appeal against the entire judgment of the Labour Court handed down on 10 March 2017. The Labour Court dismissed the appellant's application for review challenging the disciplinary proceedings that led to his dismissal from the first respondent's employment.

There were no appearances for the second and third respondents.

FACTUAL BACKGROUND

The appellant was employed by the first respondent as its Chief Executive Officer (hereinafter “CEO”) between the period 2009 until the dissolution of its Board in 2013.

The appellant had been employed on a contractual basis with his subsisting contract having been renewed in May 2011.

On 14 November 2013, the then Acting Secretary for Information, Media and Broadcasting Services, wrote to the appellant placing him on leave with full pay until further notice. The letter stated, that, the appellant was placed on leave due to the exacting challenges faced by the first respondent which required urgent intervention through a full audit of its affairs. The appellant was barred from visiting the first respondent's premises or issuing any instructions to its staff.

On 30 January 2014, the appellant was notified of the allegations of misconduct against him which were said to have been unearthed during the audit. The initial decision to place the appellant on paid leave was rescinded and substituted with leave without pay pending determination of the allegations against him.

On 18 November 2014, the appellant was duly served with a notice by the first respondent's legal representatives, to attend a disciplinary hearing to be presided over by the second respondent.

The appellant faced 32 charges of misconduct which were contained in a schedule attached to the notice of the hearing.

When the disciplinary proceedings began, the first respondent abandoned 21 of the charges against the appellant, leaving only 11.

At the hearing, the appellant argued, that, it was not competent for the first respondent to undertake disciplinary proceedings based on allegations flowing from an expired employment contract.

This argument was based on his interpretation of the Labour (National Employment Code of Conduct) Regulations 2006 (hereinafter “SI15/2006”).

Counsel for the appellant contended, that, for a person to be properly charged with misconduct, he or she must still be an employee in terms of a subsisting employment contract at both the time of the commission of the offence and institution of misconduct proceedings.

He further submitted, that, what were now termed acts of misconduct had been properly approved by the first respondent's Board.

Counsel further submitted, that, the integrity of the disciplinary proceedings was further thrown into doubt by the direct role played by the Minister of Information Media and Broadcasting Services, who initiated his suspension.

The first respondent disputed the appellant's contention that it sought to improperly charge him in terms of an expired employment contract.

It averred, that, the parties were engaged in a continuous employment relationship which was highlighted by the renewal of the appellant's contract in May 2011. Counsel for the first respondent placed reliance on the Lesotho case of Limkokwing University of Creative Technology Lesotho (Pty) Ltd v Mosia Nkoko and Anor LC/REV 58/12, whose import was that an employment relationship becomes continuous where the contract of employment is renewed immediately upon the expiry of a preceding one.

Accordingly, he argued, since the acts of misconduct in question were committed during the subsistence of an employment relationship between the parties, the appellant was properly charged.

The disciplinary hearing, chaired by the second respondent, found the appellant guilty of misconduct in respect of 7 of the 11 charges levelled against him. These were counts 1, 2, 3, 6, 7, 21 and 23 on the charge sheet.

It is not in dispute that the second respondent did not pronounce the verdict of dismissal against the appellant. This was, rather, done by the first respondent.

Dissatisfied with the disciplinary hearing's decision, the appellant filed an application for review in the Labour Court.

The basis of the application was that there was gross irregularity, gross irrationality, and illegality in the manner that the disciplinary proceedings were conducted and the decision reached.

In particular, the appellant alleged gross irregularity and irrationality, or, alternatively, illegality based on its review grounds 1.1 – 1.4. He went on to allege gross irrationality, and, alternatively, illegality and procedural irregularity on the basis of a second set of review grounds, that is, grounds 3 - 3.5.

While the manner the review grounds are formulated is somewhat confusing, it is apparent that the appellant effectively submitted two sets of review grounds, each with its own alternative grounds for review.

The court a quo did not advert to the second set of review grounds (nor the alternative thereof), but, determined the matter on the basis of the first set which alleged irregularity in the proceedings as follows:

1. A number of charges levelled against the appellant related to alleged acts of misconduct arising from a contract of employment which had expired;

2. The first respondent, at all material times, either directed or approved all acts of the appellant which were then later deemed as misconduct on his part;

3. The proceedings were initiated by the Minister of Information Media and Broadcasting Services who was not a party to the contract of employment; and

4. The first respondent improperly imposed a penalty before the disciplinary proceedings were completed, contrary to SI15 of 2006 and section 12B(4) of the Labour Act [Chapter 28:01].

The appellant consequently sought nullification of the disciplinary proceedings and reinstatement as an employee of the first respondent.

The court a quo dismissed the appellant's application for review.

It held, that, the acts of misconduct in question were committed during the subsistence of the parties employment relationship.

The court found, that, the appellant did not adduce any evidence to disprove the claim that he enjoyed a continuous employment relationship with the first respondent during the period 2009 to 2013. It stated, that, the renewal of the contract, in May 2011, did not vary the essential terms of his employment as he remained both the Principal Accounting Officer and Chief Executive Officer (CEO) of the first respondent.

For this finding, the court cited an excerpt from the case of Van Der Post v Twyfelhock Diamond Prospecting Syndicate (1903) 20 SC 213 to the effect, that, where several or a series of contracts between the same parties are concluded to effect a single purpose, they should be treated as one contractual document.

The court a quo also relied on Air Zimbabwe v Chiku Mensa & Anor SC89-10 as an authority supporting its decision to uphold the outcome of the disciplinary proceedings.

It was stated in that case, that, a person guilty of misconduct should escape the consequences of his misdeeds because he is innocent, not because of a failure to conduct proceedings properly by another employee.

In relation to the appellant's third ground of review, the court held, that, the disciplinary proceedings conducted by the second respondent were not vitiated by virtue of the Minister of Information and Media Broadcasting (and not the first respondent, his former employer) having authored the letter of suspension. The court took the view, that, the absence of a letter of suspension was, in any case, not fatal to the conduct of disciplinary proceedings. It cited in this respect the following sentiments of the court in Shumbayaonda v Ministry of Justice Legal and Parliamentary Affairs and Anor SC11-14:

“…,. Suspension is not a prerequisite to the holding of disciplinary proceedings, and, a disciplinary hearing does not have to take place during the period of suspension….,.”

Finally, in so far as the final ground of review was concerned, the court a quo quoted the part of the second respondent's written decision of 15 April 2015, that specifically convicted the appellant of acts of misconduct 1,2,3, 6,7, 21 and 23. The excerpt also indicated that the second respondent had dismissed some preliminary issues raised on behalf of the appellant. A chronological analysis of the events that then ensued satisfied the court a quo, that, the first respondent had not 'prematurely concluded' the disciplinary proceedings, as alleged by the appellant.

In the final result, the court a quo reached the decision that the disciplinary proceedings against the appellant had not been irregularly conducted.

Aggrieved by the judgment of the court a quo, the appellant approached this Court on appeal. He prays that the decision of the court a quo be set aside and substituted with an order granting the application for review and setting aside both the disciplinary proceedings and his dismissal. His grounds of appeal are set out as follows:

1. The court a quo erred and misdirected itself in law in holding, that, under the Labour National Employment Code of Conduct Regulations, 2006, S.I.15 of 2006, the appellant could be charged with, and convicted of alleged acts of misconduct arising from an expired contract.

2. The court a quo erred in law in failing to find that the first respondent, through its various agents, either directed or approved all the acts of the appellant which were then later construed as misconduct. The court a quo ought to have found, that, the first respondent could not regard, as misconduct, the actions it either directed or approved.

3. The court a quo erred and misdirected itself in law in failing to hold, that, it was not competent for the first respondent to impose the penalty of dismissal before its own appointed disciplinary authority had made a determination on the appropriate penalty.

4. The court a quo fell into an error of law in failing to find that the appellant's conviction was contrary to the evidence that was placed before the disciplinary authority....,.

Whether or not the court a quo erred at law by holding that it was competent for the first respondent to dismiss the appellant before the Disciplinary Committee had made its determination

The appellant submitted, that, the first respondent pronounced the penalty of dismissal improperly, having done so before the disciplinary committee had made its determination on that issue.

In the appellant's heads of argument, and in oral submissions before the court, counsel for the appellant sought to expand the scope of this ground of appeal by impugning the determination and pronouncement of the penalty by the first respondent rather than the disciplinary authority. Counsel for the appellant contended, that, he was challenging both the timing of the penalty and the medium by which the penalty was determined and pronounced.

He submitted that there was no distinction between the two....,.

A quo, the appellant's ground of review, concerning the timing of the pronouncement of the penalty of dismissal, read as follows:

“The first respondent arrived at a decision on the penalty before the disciplinary proceedings were completed, in contravention of SI15/2006 as well as section 12B of the Labour Act (Chapter 28:01).”

The appellant, in his third ground of appeal in casu, elaborated on this argument by stressing that the first respondent had imposed the penalty of dismissal before its own appointed disciplinary authority had made a determination on the appropriate penalty.

The court a quo, as already indicated, made the finding, that, the first respondent had not 'prematurely concluded' the disciplinary proceedings when it pronounced the penalty of dismissal. The court stated as follows:

“The applicant filed his closing submissions (actually, submissions in mitigation) on 8 May 2015. On 19 May 2015 the submissions were considered by the Board. It was then resolved that the contract should be terminated with effect from 30 January 2014. The decision was communicated on 21 July 2015 through a letter dated 17 July 2015. It is therefore not correct to say the Board prematurely concluded the disciplinary proceedings….,.”

This finding by the court a quo echoed the first respondent's response to the allegation by the applicant in his founding affidavit that the former had arrived at a verdict before the disciplinary authority had done so.

The first respondent responded as follows in its opposing affidavit:

“This is denied. Retired Judge James Devittie handed down his determination on 22 April 2015.

The applicant filed his submissions in mitigation on 8 May 2015.

Thereafter, on Tuesday 19 May 2015, the ZBC Board of Directors sat and considered the nature of the offences with which applicant had been found guilty, and the submissions in mitigation filed by applicant. The ZBC Board of Directors resolved that a penalty of dismissal met the justice of the case.

Applicant's conduct, particularly acts of theft, go to the root of the employer-employee relationship.

The penalty of dismissal was handed down subsequent to the completion of the disciplinary hearing and after considering the judgment by Justice Devittie and whether there were any mitigatory circumstances….,.”

The above excerpts capture a factual conspectus which is not disputed by the parties.

The excerpts also make it abundantly clear that the first respondent, and the court a quo, subscribed to the view, that, the disciplinary proceedings were 'completed' upon the pronouncement of the guilty verdict by the disciplinary authority.

That being the case, according to that view, the first respondent, through its Board, was at large to thereafter step in and consider the appellant's submissions in mitigation and other factors, determine, and pronounce what it considered to be the appropriate penalty.

In addition to the timing of the event, the appellant takes issue with this conflation of the roles played by the first respondent and the hearing authority in a situation where the latter ought to have, itself, completed the proceedings.

It is contended, that, the proceedings could only have properly ended with the disciplinary authority hearing the parties submissions in aggravation and mitigation, and, thereafter, considering and pronouncing the appropriate penalty.

Counsel for the appellant contended, in this respect, that, the first respondent 'usurped' the responsibility of its own disciplinary authority and 'completed' the disciplinary proceedings itself.

He asserted, further, as follows in the appellant's heads of argument:

“A proper reading of SI15/2006, in the light of the lawmaker, shows, that, an employer who has appointed a disciplinary authority must live with its decision. It is unlawful for the employer to split the disciplinary process into two phases, namely, conviction and sentence, with the disciplinary authority handling the conviction phase while the employer takes over at the sentencing stage.”

The court finds there is merit in the appellant's submissions as outlined above.

While it is inelegantly formulated, the import of the disciplinary procedure laid out in section 6 of the Labour (National Employment Code of Conduct) Regulations, S.I.15/2006 is that disciplinary proceedings against an employee facing misconduct charges are conducted by the employer or a disciplinary authority appointed by it.

The tone of section 6(4)(b) of the Labour (National Employment Code of Conduct) Regulations, SI15 of 2006 makes it clear, that, where a disciplinary authority is appointed, it is expected to conduct the hearing as set out therein, including hearing submissions in mitigation, as well as determining and imposing the 'ultimate' penalty.

The hearing, in other words, is only completed after the 'ultimate' penalty is imposed.

The impression created in the end is that the disciplinary authority, once it starts the hearings, enjoys a great measure of autonomy in the conduct of the hearing until it has completed the process.

Considerations of fairness and the interests of justice in disciplinary proceedings support this procedural route.

It is also a route that is emphasized in various authorities on the subject.

In a section of the book 'Workplace Law' 11th Ed…., by the learned author JOHN GROGAN, that addresses the requirements of fair disciplinary hearing, the following is stated:

“As in criminal proceedings, the decision of the presiding officer should be made in two distinct stages. First, the guilt of the accused employee should be determined on the evidence, without reference to the employee's disciplinary record….,. Secondly, and after the verdict is decided, a penalty must be determined which is appropriate to the offence and the particular employee….,.”…,.

The above caption underlines three procedural issues:

(i) Firstly, the decision, must be that of the presiding officer.

(ii) Secondly, the decision consists of two parts - the verdict and the penalty.

(iii) Thirdly, and to that extent, a 'decision' that ends with just the verdict would not be complete.

What should and generally happens after a guilty verdict is pronounced, is aptly articulated as follows in what is termed 'corporate disciplinary hearing templates for misconduct' by the learned author MICHAEL OPPERMAN in his book 'A Practical Guide to Disciplinary Hearings'…,:

“Stage 5 – Mitigation, Aggravation and Sanction

1. If the employee is found guilty, the employer may formulate arguments in aggravation and the employee may advance arguments in mitigation of the offence, for purposes of the sanction to be imposed;

2. This process will be in the form of a mini-hearing and is removed from the facts of the main hearing;

3. The (disciplinary) panel will then adjourn once more and consider a sanction befitting the verdict and the arguments in aggravation and mitigation.”…,.

It would follow from what is set out above, that, after it pronounces a verdict of guilty, only the disciplinary authority is mandated to move on to the part of the proceedings that relates to mitigation, aggravation, and sanction.

Accordingly, the assumption of this mandate by someone, who, as happened in casu, did not preside over the proceedings nor participate as a member of the disciplinary panel, would be highly irregular.

That the person happened to have been the employer of the appellant, and, therefore, an interested party in the proceedings, could only have served to compound the irregularity.

The first respondent, as the employer, chose to appoint the disciplinary authority that presided over the proceedings. All that it had to do, after that, was to let the disciplinary authority conclude its work by imposing the penalty that it would have adjudged appropriate under the circumstances.

Only thereafter could the first respondent have properly taken the matter on and proceeded to determine the appellant's fate.

The evidence on record shows, that, the appellant expected the convening, by the hearing officer, of the 'mini-hearing' on 'Mitigation, Aggravation, and Sanction' that is listed by the authority cited above, as the final stage in disciplinary proceedings.

The chairperson of the disciplinary hearing, on or about 25 June 2015 received a letter to this effect from the appellant's legal practitioners, Messrs Mawire JT & Associates:

“Re: ZBC (Pvt) Ltd vs Happison Muchechetere: Mitigation Hearing

We refer to the above matter in which you availed your determination on the verdict on 22 April 2015. We filed our written mitigatory submissions on 7 May 2015. We now enquire as to when you intend to invite the parties for a mitigation hearing. Our client is now anxious to have the matter completed.”…,.

While there is no record of any response to the letter, by the chairperson of the disciplinary authority, the letter terminating the appellant's employment removes any doubt as to what then ensued.

As already indicated, the letter advised the appellant, that, following the verdict of guilty pronounced by the disciplinary authority, the full Board of the first respondent, on 19 May 2015, sat to consider the submissions made on his behalf in mitigation and resolved that termination of his contract of employment would 'meet the justice of the case.'

The first respondent, through its Board, as argued for the appellant, clearly jumped the gun, as it were, and assumed a responsibility that was properly meant to be discharged by the hearing authority.

In that way, the first respondent interfered with ongoing proceedings and irregularly brought them to an end.

This clearly cast into serious doubt the fairness of the proceedings post the pronouncement of the guilty verdict by the disciplinary authority.

It does not escape notice that the Board, having taken over a quasi-judicial role that it should not have done after the parties had filed submissions in aggravation and mitigation, is said to have related only to the appellant's submissions in mitigation and not the respondent's own submissions in aggravation.

This circumstance ran counter to the accepted procedure where an independent tribunal weighs and balances the mitigating and aggravating features of the offence in question against each other, before reaching and pronouncing an appropriate penalty.

The appellant had the right to have his submissions in mitigation considered and assessed by the same authority that had presided over the disciplinary proceedings, before pronouncement, by it, of the penalty. By the same token, the first respondent should have allowed its own submissions in aggravation to be heard and assessed by the same hearing authority.

Although not argued, the point must also be made, that, section 69 of the Constitution of Zimbabwe Amendment (No.20) Act 2013, guarantees the right of a litigant to a fair hearing before an independent and impartial court or tribunal.

The first respondent was a party to the proceedings and had an interest in seeing the appellant dismissed from his employment. Having taken over a crucial part of the disciplinary process from the independent hearing authority, the court finds, that, the first respondent, through its Board, crucially undermined the fairness of the sentencing part of the disciplinary proceedings. This could only have been to the detriment of the appellant.

Conduct that conjures the much-condemned circumstance, where someone is seen to act as both a prosecutor and judge in the same cause, flies in the face of the time-honoured adage 'justice must not only be done, but must be seen to be done.'

The court therefore finds, that, in all respects, the conduct of the Board, as outlined, constituted gross irregularity whose effect was to render the part of the disciplinary proceedings that pertained to 'mitigation, aggravation, and sanction' a nullity.

The conduct was without any legal basis, and therefore surpassed the bounds of what would ordinarily be regarded as a procedural faux pax meriting disregard or condonation by a tribunal or court in the determination of labour matters.

The court a quo accordingly erred in its finding that the following excerpt was applicable:

“…, a person guilty of misconduct should not escape the consequences of his misdeeds because of a failure to conduct proceedings properly by another employee. He should escape such consequences because he is innocent: Air Zimbabwe v Chiku Mensa & Anor SC89-10.”

The disciplinary authority in casu was prevented from conducting 'the proceedings properly' by the employer, who, acting on some undefined basis, stepped in midstream of the disciplinary proceedings, and purported to complete the process itself.

Accordingly, the 'sentencing' stage of the proceedings cannot stand and must be vacated. It is important that the disciplinary authority be allowed to properly complete its mandate.

DISPOSITION

What was before the court a quo were review proceedings.

Of the appellant's two valid grounds of appeal, the first lacks merit and will be dismissed. The second ground of appeal, being meritorious, will be upheld.

The court a quo, acting on the basis of a wrong procedural principle, erred in its finding, that, the disciplinary proceedings properly ended with the pronouncement of the guilty verdict against the appellant.

In the result, it is ordered as follows:

1. The appeal succeeds, in part, with each party bearing its own costs.

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

'(a) The applicant's first, second, and third grounds for review are dismissed;

(b) The appellant's fourth ground for review is upheld.

(c) The matter is remitted to the disciplinary authority for it to consider the parties submissions in mitigation and aggravation, and, thereafter, to pronounce the appropriate penalty against the applicant.

(d) Each party shall bear its own costs.'

HH595-15 : MAKANDI TEA AND COFFEE ESTATE (PVT) LTD vs THE ATTORNEY GENERAL OF ZIMBABWE N.O. and V. GAPARA N.O.
Ruled By: MAKONI J

This is an application for review of the second respondent's decision in which he declined to stay proceedings before him in terms of section 7 of the Arbitration (Resolution of International Investment Disputes) Act [Chapter 7:03] (the Act).

The background to the matter is that the applicant is a company duly incorporated in terms of the laws of Zimbabwe, which is in the business of growing coffee, macadamia nuts, avocados, and maize.

On 8 July 2010, the applicant registered a request for arbitration with the International Centre for Settlement of Investment Disputes (ICSZD), against the Government of Zimbabwe (State), in relation to land which the applicant lawfully owned and occupied before a dispute arose with the State.

The State subsequently defended these proceedings which are pending.

On 28 April 2011, a director of the applicant, Bernard Alexander Josef von Pezold (Pezold) was summoned to appear at Chipinge Magistrates Court facing charges of contravening section 3 of the Gazetted Lands (Consequential Provisions) Act [Chapter 20:28].

It was alleged, that, the applicant continued in occupation of gazetted land without lawful authority.

In his defence, the applicant denied the allegations and asserted, that, the State is prohibited from bringing the charges under the Constitution of Zimbabwe, the statutes, and international laws ratified by the State.

The applicant relied on Article 26 of the convention which deals with the effect of arbitration and section 7 of the Arbitration (Resolution of International Investment Disputes) Act [Chapter 7:03] which deals with stay of court proceeding where the matter is within the jurisdiction of the International Centre for Settlement of Investment Disputes (ICSZD).

The applicant then mounted an application for stay of proceedings in terms of section 7 of the Arbitration (Resolution of International Investment Disputes) Act.

It is this application that was dismissed by the second respondent which is the subject of this review.

The following are the grounds for review as set out in the Court Application:

“(i) The effect of section 7 of the Arbitration (International Investment Disputes) Act [Chapter 7:03] ('the Act') as read with Article 26 of the International Convention on Settlement of International Disputes Convention (18 March 1965), ratified by the respondent on 20 May 1994;

(ii) The significance of the Bilateral Investments Protection and Promotion Agreement (BIPPA) between Zimbabwe and Germany;

(iii) The effect of section 16(9b) of the Constitution of Zimbabwe on the dispute;

(iv) The difference between ownership and occupation, and, as such, the fact that the applicant had a residual right with respect to occupation;

(v) Instead, he erroneously suggested, that, a separate but related constitutional application had been dismissed by the Magistrates Court on the alleged ground that the applicant was abusing court process; and

(vi) He erroneously reasoned, that, because a previous application, on with the same parties, on a different cause of action, had been dismissed, therefore, the application before him was to be dismissed.”

The application is opposed.

The opposing affidavit was filed by the trial magistrate, the second respondent.

The applicant took issue, in limine, with the propriety of the second respondent deposing to the opposing affidavit.

It was submitted, that, the second respondent needed no protection which would justify his mounting of this opposition. The proper course would have been for a representative of the first respondent to depose to the opposing affidavit.

The respondents did not make any submissions in opposition to this point.

In Leopard Rock Hotel (Pvt) Ltd v Wallen Construction (Pvt) Ltd 1994 (1) ZLR 255 (S) at 278B-F, the following was stated:

“Such belief in the mind of the reasonable litigant is bound to be heightened by the fact, that, not only has the arbitrator refused to recuse himself, but, he has descended into the arena of battle by actively participating in the proceedings for his removal and making common cause with the party maintaining that he should not recuse himself.”

The court continued at 279B-F:

“In my view, in circumstances such as these, an arbitrator, umpire, judge or other adjudicating body has one of two choices. The first is that he could file an affidavit setting out facts which he considers may be of assistance to the court. So long as such facts are stated colourlessly, no-one could object; but, if the affidavit should err plainly in support of one of the parties, it might expose the adjudicator to the odium of the court.

It is most undesirable that any arbiter or other adjudicator of a dispute should appear to be pitching camp with, or rendering assistance to, one of the contestants to the dispute before him: for, the other party is likely to gain that impression that the arbiter and his adversary are conspiring against him: and such an impression would reinforce his belief that the arbiter is biased against him: see the remarks of McNALLY JA in Blue Ribbon Foods Ltd v Dube NO & Anor 1993 (2) ZLR 146 (S) at 148.

When the arbiter makes common cause with one of the parties in such proceedings, any façade of justice is shattered; the arbiter is seen to have descended into the arena with the possible consequential blurring of his vision by the dust of battle. Unconsciously, he deprives himself of the advantage of calm and dispassionate observation.

The second choice of the arbitrator or umpire, when served with notice of motion for his removal, or to set aside his award, is to take no action and abide by the court's decision.”

The proper approach in this matter would have been for the second respondent to set out facts which he considered would be of assistance to the court and end there. In the alternative, he would have asked a representative of the first respondent to file the opposing affidavit on behalf of the respondents rather than file an affidavit where he clearly supports one side.

The grounds upon which this court can exercise its powers of review are laid down in section 26 of the High Court Act [Chapter 7:06]. These have been canvassed in a number of authorities in our jurisdiction.

In Tenesi v PSC 1996 (2) ZLR 44, quoted with approval in Ramilewa v Secretary of the Public Service Commission 1988 (1) ZLR 257 (H)…, GREENLAND J quoted with approval from SA Defence and Aid Fund and Anor v Minister of Justice 1967 (1) SA 31 (C), where CORBETT J…, said…,:

“The court can interfere and declare the exercise of the power invalid on the ground of a non-observance of the jurisdictional fact only where it is shown that the repository of the power, in deciding that the pre-requisite fact or state of affairs existed, acted mala fide or from ulterior motive or failed to apply his mind to the matter: see eg Minister of the Interior v Bechler and Others supra [1948 (3) SA 409 (A)]; African Commercial and Distributive Workers Union v Schoeman NO and Another 1951 (4) 266 (T); Sachs 1953 (1) SA 392 (A).”

In casu, the applicant contends, that, the second respondent failed to address his mind to the issues before him. He asked himself the wrong question, and, as a result, addressed the wrong question.

The position, in such cases, was laid down in Bridges & Hulmes P/L v The Magistrate, Kwekwe & Ors 1996 ZLR 189 (HC)…, where it was stated:

“Because of the wrong question of law, he directed his inquiry at matters he should not have considered and failed to apply his mind to the matters in issue.”

In casu, the applicant had previously applied for referral to the Supreme Court of certain questions relating to the violation of the Declaration of Rights.

What was sought in that application was a determination of whether or not the applicant had been denied the right to the protection of law as guaranteed under section 18(1) of the Constitution.

The magistrate dismissed the application.

In the proceedings under review, the applicant made an application in terms of section 7 of the Arbitration (Resolution of International Investment Disputes) Act [Chapter 7:03].

Section 7 of the Arbitration (Resolution of International Investment Disputes) Act provides:

“7. Stay of court proceedings where matter within jurisdiction of Centre

If any proceedings are instituted in any court in regard to any matter which, under the Convention, is required to be submitted to the Centre for conciliation or arbitration, any party to the proceedings may apply to the court to stay the proceedings, and the court, unless satisfied that the matter is not required to be submitted to the Centre under the Convention, shall make an order staying the proceedings.”

The applicant argued, before the second respondent, that, the criminal proceedings before him were proceedings within the contemplation of section 7 of the Arbitration (Resolution of International Investment Disputes) Act. He therefore applied for relief pending the determination of related proceedings in the International Centre for Settlement of Investment Disputes (ICSZD) to which the Arbitration (Resolution of International Investment Disputes) Act applied.

The second respondent was therefore enjoined to interpret section 7 of the Arbitration (Resolution of International Investment Disputes) Act and determine whether or not the proceedings before him fall under the definition of proceedings as enunciated in the section.

The second respondent did not address his mind to this issue, but, instead, said the following:

“It is important to note, that, this application is preceded by another application under section 24(2) of the Constitution of Zimbabwe wherein was sought a referral of the matter to the Supreme Court of Zimbabwe for the resolution of what the applicant alleged were constitutional questions. The application was dismissed by this court and the reasons for the dismissal are filed of record.

The instant application was opposed by the State on the grounds, inter alia, that the applicant was abusing court process by bringing the same application before the Court which had already made its decision on it.

I do not see the difference, in essence and content, between the two applications.”

Clearly, the magistrate fell into error, as did the magistrate in Williams & Anor v Msipa N.O. and Anor SC22-10.

In that matter…,MALABA DCJ observed:

“The reasons for the refusal by the magistrate of the request by the applicant for the referral to the Supreme Court of the two constitutional questions show that he raised, for his consideration, the false issue of the postponement of the trial.”

In casu, the magistrate raised the false issue, that, the present application, being made in terms of section 7 of the Arbitration (Resolution of International Investment Disputes) Act, is the same as an application made for the referral of a constitutional issue to the Supreme Court.

This was not the same application. The issues are clearly different.

In the first application, the relief sought was referral to the Supreme Court on the basis that the prosecution was a breach of the applicant's fundamental rights.

What the second respondent was required to determine was whether the request was frivolous and vexatious.

This question did not arise in the present proceedings.

What the second respondent was required to determine, in the proceedings under review, was whether prosecution of the applicant amounted to 'proceedings' within the contemplation of section 7 of the Arbitration (Resolution of International Investment Disputes) Act.

If he had found in the positive, the second respondent would have no discretion. The section is couched in peremptory terms.

It is clear, that, the second respondent failed to apply his mind to these differences of substance.

He considered, that, the two distinct and separate applications that required distinct and separate jurisdictional facts for the determination, were the same.

The reasoning of the second respondent falls within the four corners of what has come to be known as the Wednesbury principles, namely, that:

“It is true to say, that, a decision on a competent matter is so unreasonable that no reasonable authority could ever have come to it, then the court can interfere.”

See Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1947] 2 ALL ER 280.

The second respondent, in its opposing affidavit and in his Heads of Argument, does not address the pertinent question whether the proceedings before him were 'proceedings' as contemplated by section 7 of the Arbitration (Resolution of International Investment Disputes) Act.

There is no mention of section 7 of the Arbitration (Resolution of International Investment Disputes) Act in his Heads of Argument at all.

He did not apply his mind to the real issue before him.

Before I conclude, I would want to observe, that, the second respondent, in his opposing affidavit, took offence by the adoption of the Wednesbury formulation in the court application.

He felt that it was contempous of his office and that of the entire judicial system.

Whilst the expression that the second respondent had “taken long leave of mind” might have gone over board, it is not uncommon to find, in court judgements, expressions such as 'no reasonable authority could ever have come to it:' see Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1947] 2 ALL ER 280; 'He just did not apply his mind to the consideration of that question:' see Williams & Anor v Msipa N.O. and Anor SC22-10 …,.

This is not meant to be an attack on the person of the second respondent or his office.

This might also support the applicant's contention, dealt with earlier on in the judgment, that, the opposing affidavit should have been done by a representative of the Attorney General.

Having found, that, the second respondent failed to apply his mind to the issue before him, I will therefore make the following order:

(1) The order of the court a quo be and is hereby set aside.

(2) The matter is remitted to the court a quo for determination before a different magistrate.

(3) That the respondents pay costs on a legal practitioner/client scale, jointly and severally, the one paying the other to be absolved.

HH02-22 : LIVISON CHIKUTU and PHENEAS CHITSANGE and ALBERT DHUMELA vs MINISTER OF LANDS, AGRICULTURE, WATER, CLIMATE & RURAL RESETTLEMENT and OTHERS
Ruled By: MAFUSIRE J

In Nyambirai v National Social Security Authority Anor 1995 (2) ZLR 1 (S) the Supreme Court…, put it as follows:“I do not doubt, that, because of their superior knowledge and experience of society and its needs, and a familiarity with local conditions, national authorities are, in principle, better ...

CC04-16 : SISTER BERRY (NEE NCUBE) and JESSE AARON BERRY vs THE CHIEF IMMIGRATION OFFICER and THE MINISTER OF HOME AFFAIRS
Ruled By: CHIDYAUSIKU CJ, MALABA DCJ, ZIYAMBI JCC, GWAUNZA JCC, GOWORA JCC, HLATSHWAYO JCC, PATEL JCC, GUVAVA JCC and MAVANGIRA AJCC

This is an application in terms of subsections 85(1)(a) and 85(1)(b) of the Constitution of Zimbabwe Amendment (No.20/2013) (“the Constitution”). The first applicant is acting in both her own interest and that of her husband who is the second applicant.

In their heads of argument, the applicants submit that they have abandoned paragraphs 2, 3 and 4 of the relief originally sought in their draft order. They indicate that the application is now 'fundamentally focused' on an infringement of the first applicant's constitutional right to freedom of movement, which is protected under section 66 of the Constitution.

The applicants accordingly seek the following relief:

1. A declaratur to the effect that the first applicant's fundamental right to freedom of movement and residence, guaranteed under the Constitution, has been violated by virtue of the respondents refusal to grant the second applicant entry into and residence in Zimbabwe; and

2. An order compelling the respondents to:

(i) Permit the second applicant entry into Zimbabwe; and

(ii) Grant the second applicant a 'spousal' residence permit.

The background to the matter is as follows:

The first applicant is a Zimbabwean citizen by birth whereas the second applicant holds the citizenship of the United States of America. The latter, sometime in August 2011, entered into Zimbabwe without any impediments. He was issued with a temporary employment permit for the period of 28 September 2012 to 27 July 2013. The application was made on his behalf by a religious group called Cornerstone Fellowship International. During the second applicant's stay in Zimbabwe, he met and fell in love with the first applicant. After the expiry of his employment permit, the second applicant returned to his home country for a short period. He then returned to Zimbabwe on a holiday visa to spend time with the first applicant.

During this period, the two applicants solemnized their marriage in terms of the Marriage Act [Chapter 5:11] and made a decision to settle, and start their own family, in Zimbabwe.

This decision prompted the second applicant to take the necessary legal steps to attain the status of a lawful resident of Zimbabwe. He applied for a residence permit on the basis of his marriage to a Zimbabwean citizen. He was granted a thirty day extension on his holiday visa whilst his application for a residence permit was being considered.

On or about 2 June 2014, the second applicant was invited for a meeting with immigration officers under the control of the respondents. He was told to leave the country as he was deemed to be a “prohibited” person in terms of section 14(1)(e)(i) of the Immigration Act [Chapter 4:02] (“the Act”). He was then given two options, that is, to leave the country immediately or to be deported. This was pursuant to section 17 of the Immigration Act.

The second applicant chose the former option, and, on 2 June 2014, left for South Africa together with his wife.

Before leaving Zimbabwe, the applicants instructed their legal practitioners to appeal against the Prohibition Notice, which appeal was duly noted in the Magistrates Court, in terms of section 8 of the Immigration Act.

The Court, on 20 June 2014, ruled in favour of the second applicant and set aside the Prohibition Notice in question. The applicants were informed by their legal practitioners of this development, and, on 30 June 2014, left South Africa for Zimbabwe, believing that they would finally settle down in Zimbabwe.

Their joy was however short lived as the second applicant was denied entrance into Zimbabwe at the Beitbridge Border Post by the first respondent's officers, on the basis that he was still a prohibited person - despite the setting aside of the Prohibition Order.

The first applicant proceeded with the journey without her husband who was left in the hands of the first respondent's officers. She proceeded, on 18 July 2014, to file an application before this Court, challenging the respondent's decision to declare the second applicant a prohibited person, and denying him entry into this country.

Before the matter was heard, on 18 February 2015, the first applicant successfully applied for interim relief, in chambers before the Chief Justice, allowing the second applicant entry into the country pending the determination of this application.

I consider it pertinent, at this juncture, to address the parties submissions regarding the effect of the order of the Magistrates Court setting aside the first Prohibition Notice issued against the second applicant.

As already stated, the second applicant chose the option to leave the country, and did so, on the basis of the Prohibition Notice dated 2 June 2014.

A look at this Notice, which cites two provisions falling under section 14 of the Immigration Act, shows that the first respondent's officers were required to delete whichever of the two provisions did not apply in any particular case.

This was not done.

While clearly the second provision cited would not have been applicable to the circumstances of the second applicant, the first provision is not fully legible and seems to refer to a paragraph (i.e. paragraph (1) of subsection (1) of section 4 of the Immigration Act) that simply does not exist as part of the various paragraphs and subsections of section 14 of the Immigration Act.

The applicants challenged the Notice primarily on this point, stating as follows in their grounds of appeal in the lower court:

“The order of prohibition is invalid at law as it is not supported by the cited provisions of the Immigration Act (Chapter 4:02).”

The applicants accordingly sought an order setting aside the Prohibition Notice.

This ground of appeal had merit in view of section 8(4)(a) of the Immigration Act which reads as follows:

“When —

(a) Leave to enter Zimbabwe is refused or any person is informed, for the first time, that he is a prohibited person in terms of this Act, notice in writing specifying the provision of this Act under which leave to enter Zimbabwe is refused or the person is a prohibited person, as the case may be, shall be given to the person concerned:

Provided that…,.”…,.

The Magistrate's full reasons for the order he made, setting aside the impugned Notice, were not part of the record before this Court. Only the actual order of the Court has been provided, and it simply reads:

“The immigration appeal is upheld and the prohibition be and is hereby set aside.”

Despite the lack of reasons for this order, its correctness cannot be doubted. This is because the Notice in question, as already mentioned, did not correctly cite the section of the Immigration Act by virtue of which the second applicant was a prohibited person. The Notice, therefore, did not comply with section 8(4)(a) of the Immigration Act.

As indicated above, the applicants understood the order setting aside the Prohibition Notice to mean that there were no longer any legal impediments to the second applicant's return to Zimbabwe.

The respondents took a different view of the matter.

They contend, that, the Magistrate's Court's decision was based on a technicality rather than on the merits. This, in their view, meant that the lower Court did not make a determination to the effect that the second applicant was not a prohibited person, nor that such status be set aside.

The respondents attached to their opposing papers another Prohibition Notice dated the same day, 30 June 2014, declaring that the second applicant was a prohibited person in terms of section 14(1)(e)(i) of the Immigration Act.

This notice fully complied with section 8(4)(a) of the Immigration Act.

I find the respondents submissions, on the import of the Magistrates Court's order setting aside the Prohibition Order, to have merit.

The applicants challenged the Prohibition Notice, of 2 June 2014, largely on technical grounds. There can be no disputing the fact that the Notice in question was fatally defective, that is, a nullity. However, it appears that the applicants laboured under the misconception, that, the setting aside of the Prohibition Notice had the effect of opening the way to the second applicant to re-enter Zimbabwe.

Section 8(4(a) of the Immigration Act makes it clear, that, the Notice does not confer the status of prohibited person on the recipient. All that it does is formerly inform the person of the section of the Immigration Act under which he was a prohibited person, that is, a person not eligible to enter Zimbabwe.

This is to be contrasted with the situation referred to in section 14(2) of the Immigration Act which reads as follows;

“A person shall be declared to be a prohibited person in terms of subparagraph (iii) of paragraph (e) of subsection (1) by notice in writing served on him, or, if his whereabouts are unknown or he has departed from Zimbabwe, by notice in the Gazette.”

The second applicant's prohibited person status derived from the law, that is, section 14(1)(e)(i) of the Immigration Act, which I have cited below (sic).

The respondents are therefore correct in the assertion, that, the second applicant maintained the status of prohibited person despite the setting aside of the Prohibition Notice. That being the case, the respondents were properly within their rights to issue another Notice clearly setting out the basis for such a status.

The applicants, albeit challenging it in casu, did not appeal to the Magistrates Court (this would be in terms of section 21(1) of the Immigration Act) against the allegation in the second Notice, that he was a prohibited person.

As indicated above, the second applicant has however been allowed to re-enter and stay in Zimbabwe pending the determination of this matter.

In my view, there are basically three issues before this Court, namely:

(i) Whether or not the second applicant's status, of being a prohibited person, was negated by his subsequent marriage to the first applicant;

(ii) Whether or not there has been any infringement of the applicants fundamental right to freedom of movement as alleged; and

(iii) Whether the applicants are entitled to the relief sought....,.

(iii) Whether the applicants are entitled to the relief sought

I turn now to deal with the last issue for determination which is whether or not the applicants are entitled to the relief sought. In addition to the declaratur referred to, which I have determined has been improperly sought before this Court, the applicants also seek an order compelling the respondents to allow the second applicant entry into Zimbabwe, and, in addition, grant him a spousal visa.

The order relating to the granting of leave to enter Zimbabwe would be a consequence of the declaratur that the applicants have unsuccessfully sought. It therefore suffers the same fate.

I should mention in this connection, that, the second applicant seems to have eschewed the procedure laid down in the Immigration Act and Regulations (Statutory Instrument 195/1998, SI195 of 1998) for challenging, through an appeal to the Magistrates Court, the issuance of the second Notice that declared him to be a prohibited person.

The immigration Regulations set out in detail the procedures for such an appeal, including the referral by the magistrate concerned, of any point of law, to the Supreme Court for determination: see sections 55-59.

Instead, the applicants chose to mount this constitutional challenge, which I have determined to be ill-conceived.

As for a spousal residence permit, the papers before the court allude to the fact, that, the second applicant properly filed an application before the Chief Immigration Officer, for a residence permit as a spouse of a Zimbabwean citizen. This would have been in terms of sections 15 and 16(1)(a) of S.I.195 of1998.

The respondents submit, that, the application is still pending determination although it has been 'stalled' by the second applicant's refusal to 'observe due process.'

There is nothing on record to suggest that the applicants dispute this assertion.

The provisions of the Immigration Act and Regulations make it clear, that, the process of applying for and being issued with a spousal residence permit is involved and requires the consideration, by the Chief Immigration officer, of numerous issues.

The applicants in effect seek an order that would result in this Court interrupting a statutory process commenced by the appropriate immigration authorities to receive and determine an application for a residence permit by an alien spouse. Such order would, in addition, compel the respondents to grant the permit sought without fully assessing the second applicant's suitability for it, based on the requirements mandated by the Immigration Act.

The impropriety of such an order hardly needs any emphasis. Due process needs to, and must be, followed.

CC07-15 : DANIS KONSON vs THE STATE
Ruled By: CHIDYAUSIKU CJ, MALABA DCJ, GWAUNZA JCC, GARWE JCC, GOWORA JCC, HLATSHWAYO JCC, PATEL JCC, GUVAVA JCC and MAVANGIRA AJCC

On 3 February 2014, under Case No HB158/13, the High Court, sitting at Bulawayo, convicted the applicant of murder with actual intent to kill. After finding that there were no extenuating circumstances surrounding the commission of the offence, the court passed a sentence of death.

The background facts surrounding the applicant's conviction and sentence were the following:

The deceased and the applicant had a love relationship which had, at the time of the deceased's demise, lasted a number of years. As a measure of his love, the applicant set the deceased up in business, in the form of a shop in the rural area in which the deceased resided. The deceased was allegedly not happy with the treatment that the applicant was subjecting her to and terminated their relationship. She subsequently entered into a new relationship with another man.

The applicant was not happy with this development.

After unsuccessful attempts to resuscitate the relationship, he proceeded to her residence, accompanied by a friend and a police detail. Thereafter, the parties proceeded to the business premises where the applicant shot the deceased and the policeman after conducting enquiries on the status of the business venture. The deceased died at the scene leading to the arrest of the applicant, and, thereafter, his conviction.

An automatic appeal followed against the conviction and sentence by operation of law.

On 17 November 2014, in his appeal before the Supreme Court, the applicant alleged that the High Court had violated his right to a fair trial and applied that the matter be referred to this Court in terms of section 175(4) of the Constitution of Zimbabwe (“the Constitution”). The relevant subsection reads:

“(4) Powers of courts in constitutional matters

If a constitutional matter arises in any proceedings before a court, the person presiding over that court may, and, if so requested by any party to the proceedings, must refer the matter to the Constitutional Court unless he or she considers the request as merely frivolous or vexatious.”

The Supreme Court agreed that the request was neither frivolous nor vexatious and consequently made the following order:

“IT IS ORDERED THAT:

Two constitutional issues have arisen:

1. The appellant alleges that his right to a fair hearing, guaranteed by section 69(1) of the Constitution of Zimbabwe, was violated by the presiding Judge who descended into the arena.

2. The appellant was given a sentence which was not competent in terms of the law. In particular, he was sentenced at a time where Parliament had not enacted a law providing the circumstances in which a death sentence may be imposed in terms of section 48(2) of the Constitution of Zimbabwe.”

Before us, counsel for the applicant and the respondent are agreed, that, the application is properly before this Court.

I proceed now to consider each of the issues referred to this court for determination.

Whether the applicant's right to a fair hearing was violated

The object of a criminal trial is for the truth surrounding the commission of the offence to be established. The role of the judge is therefore an onerous one as his task is to see that justice is not only done, but that it is seen to be done.

In this exercise, he should conduct himself in such a manner that he is not viewed or perceived to have aligned himself with either the prosecution or the defence. He is not precluded from questioning the witnesses or the accused person, but, such questioning must not be framed in such a manner as to convey an impression that he is conducting a case on behalf of one of the parties. The judge must avoid questions that are clearly biased and show a pre-disposition on the part of the judge. The judge should neither lead nor cross-examine a witness.

The complaint by the applicant is that the trial court descended into the arena of conflict between himself and the State thereby violating his right to a fair trial as guaranteed by section 69(1) of the Constitution. The applicant further contends, that, the record of proceedings shows that the court was not impartial. It is argued further, that, the questioning of the applicant by the trial judge was such that, because of its frequency; length; timing; form; tone; content, it was apparent that the trial judge was hostile to the applicant.

The limits to which a judicial officer may question a witness or an accused person in a criminal trial were aptly set out by TROLLIP AJA in S v Rall 1982 (1) SA 828…, in the following terms:

“While it is difficult and undesirable to attempt to define precisely the limits within which such judicial questioning should be confined, it is possible, I think, to indicate some broad, well-known limitations, relevant here, that should generally be observed: see eg. S v Sigwala 1967 (4) SA 566 (A) at 568F-H.

1. According to the above quoted dictum of CURLEWIS JA, the judge must ensure that 'justice is done'. It is equally important, I think, that he should ensure that justice is seen to be done. After all, that is a fundamental principle of our law and public policy.

He should therefore so conduct the trial that his open-mindedness, his impartiality, and his fairness are manifest to all those who are concerned in the trial and its outcome, especially the accused: see, for example, S v Wood 1964 (3) SA 103 (O) at 105G; Rondalia Versekeringskorporasie Van SA Bpk v Lira 1971 (2) SA 586 (A) at 589G; Solomon and Anor NNO v De Waal 1972 (1) SA 575 (A) at 580H.

The judge should consequently refrain from questioning any witness or the accused in such a way, that, because of its frequency, length, timing, form, tone, contents or otherwise conveys or is likely to convey the opposite impression: cf Greenfield Manufacturers (Temba) (Pty) Ltd v Royton Electrical Engineering (Pty) Ltd 1976 (2) SA 565 (A) at 570E-F; Jones v National Coal Board (1957) 2 All ER 155 (CA) at 159F.

2. A judge should also refrain from indulging in questioning witnesses or the accused in such a way or to such an extent that it may preclude him from detachedly or objectively appreciating and adjudicating upon the issues being fought out before him by the litigants. As LORD GREENE MR observed in Yull v Yull (1945) 1 All ER 183 (CA) at 189B, if he does indulge in such questioning -

'He, so to speak, descends into the arena and is liable to have his vision clouded by the dust of the conflict. Unconsciously, he deprives himself of the advantage of calm and dispassionate observation.'

See, too, the Jones case (supra) at 159C-E: or, as expressed by WESSELS JA in Hamman v Moolman 1968 (4) SA 340 (A) at 344E, the Judge may thereby deny himself -

'The full advantage usually enjoyed by the trial judge, who, as the person holding the scale between the contending parties, is able to determine objectively and dispassionately, from his position of relative detachment, the way the balance tilts.'

The quality of his views on the issues in the case, including those relating to the demeanour or credibility of the witnesses or the accused or the relative probabilities, may, in consequence, be seriously impaired: see eg R v Roopsingh 1956 (4) SA 509 (A) at 514-5: and, if he is sitting with Assessors, that may well adversely influence their deliberations and opinions on those issues.

3. A judge should also refrain from questioning a witness or the accused in such a way that may intimidate or disconcert him or unduly influence the quality or nature of his replies and thus affect his demeanour or impair his credibility. As LORD GREENE MR further observed in Yull's case supra at 189B-C:

'It is further to be remarked, as everyone who has had experience of these matters knows, that the demeanour of a witness is apt to be very different when he is being questioned by the judge to what it is when he is being questioned by counsel, particularly when the judge's examination is, as it was in the present case, prolonged and covers practically the whole of the crucial matters which are in issue.'”

In this case, it was contended, on behalf of the applicant, that, the manner in which the learned judge in the trial conducted himself revealed hostility to the applicant.

In S v Mangezi (1) ZLR 272 (S), DUMBUTSHENA CJ commented as follows:

“It is not only when a judicial officer shows his bias that his leading or cross-examination of a witness may be condemned, it is also the fact of taking over the examination of the prosecution or defence witness that is not permissible.”

Further to the above, the applicant has contended that the intensity of questioning by the judge, whilst he was under cross-examination, was more extensive than that of the prosecutor. Whilst the prosecutor put a total of 144 questions to the applicant during his cross-examination, the questions from the judge, during the same cross examination, was a record 122. When the applicant's counsel sought to re-examine the applicant, the learned trial judge put to the applicant an additional 24 questions bringing the total number to 146.

However, it is not just the number of questions or their longevity that the applicant contests, it is also the content of the questions and the form that they took that is being complained of. Counsel for the applicant drew the attention of the court to the impugned exchanges between the court and the applicant. To illustrate the gravity of the complaint, I set out a few examples of the same.

The learned judge, after an answer to a question by the applicant, was heard to interject:

“No, no, no…, this does not make sense. What was happening to the money, you were making profits and that is why you were running the business, so what was happening to the money?”

Further on in the record, the learned judge, during the cross-examination of the applicant, also commented to an answer by the applicant in the following terms:

“And when she tells you that she was married and you did not believe her and you go there to find out if she is married, and you find the deceased coming out of the husband's house you say that is provocation? You wanted to go and find out whether she was married and you found out she was married and you still say it was provocation?”

As submitted by counsel for the applicant, the inescapable conclusion that emerges from the record is that the judge descended into the arena, and, as a consequence, he deprived himself of the detached impartiality required of a judicial officer. The fairness of the trial was clearly undermined. He had pre-judged the issues of the trial that was before him.

The remarks of HOLMES JA in S v Sigwala 1976 (4) SA 566 (AD) are apposite. At p568F-H, the learned jurist stated:

“The principle is clear. A judicial officer should ever bear in mind that he is holding a balance between the parties, and that fairness to both sides should be his guiding star, and that his impartiality must be seen to exist. There are occasions, particularly where a party is unrepresented, when the judicial officer will properly take some part in the examination of witnesses, but, in the main, and as far as is reasonably possible, he will usually tend to leave the dispute to the contestants, interrupting only when it is necessary to clarify some point in the interests of justice. Thereby, he is better able to form objective appraisals of the witnesses who appear before him, and he also avoids creating wrong impression in the minds of those present.”

Section 69(1) of the Constitution reads:

“Right to a Fair Hearing

(1) Every person accused of an offence has the right to a fair and public trial within a reasonable time before an independent and impartial court.”

One of the fundamental principles of criminal law is that a person charged with a criminal offence is presumed to be innocent until the prosecution proves that he committed the offence with which he is charged. Thus, the State has an onus to establish every element of the offence.

The rules of natural justice require that whoever takes a decision should be impartial, having no personal interest in the outcome of the case and that a decision should not be taken until the person affected by it has had an opportunity to state his case.

A judicial officer has an obligation to ensure that a trial is conducted in a manner that is fair to all parties before him. To that end, the judicial officer is required to leave the dispute to the parties before him as far as is reasonably possible, and should interrupt only when it is necessary to clarify some point in the interests of justice.

In view of the stance assumed by the learned trial judge, the defence proffered on behalf of the applicant was not properly evaluated thus further undermining the trial.

His right to a fair hearing, as guaranteed under section 69(1) of the Constitution, was clearly violated.

In my view, the finding that the trial was not fair determines the application, and it becomes unnecessary to resolve the question relating to the constitutional validity of the sentence of death imposed upon the applicant.

One of the two issues referred to this court by the Supreme Court has been decided in favour of the applicant.

Both counsel are agreed, that, it would be in the interests of justice if the proceedings in the High Court were to be set aside as being inconsistent with section 69(1) the Constitution. Under such circumstances no benefit would ensue from a determination on the question of the constitutional validity of the sentence when the trial proceedings have been set aside.

It is further agreed between counsel that it would be in the interests of justice if the matter were to be remitted for trial de novo before a different judge.

Accordingly, it is declared that:

The applicant's right to a fair hearing, in accordance with section 69(1) of the Constitution, has been violated by the proceedings in Case No. HCB158/13.

Accordingly, the following order will issue:

IT IS ORDERED THAT:

1. The proceedings conducted under Case No. HCB158/13 be and are hereby set aside.

2. The matter be and is hereby remitted to the High Court in Bulawayo for trial de novo before a different judicial officer.

SC57-18 : DRUM CITY (PRIVATE) LIMITED vs BRENDA GARUDZO
Ruled By: GWAUNZA DCJ, MAKARAU JA and MAKONI JA

This is an appeal against the decision of the Labour Court confirming the draft ruling of the respondent, a labour officer. The ruling was in favour of the appellant's former employee, Ms Umarah Khan whose contract of employment was summarily terminated as from 15 April 2015 on allegations of certain ...

FACTUAL CONSPECTUS

The decision to dismiss Ms Khan from employment was reached after it was found that she had two earlier written warnings in relation to similar offences. An amount of US$3,986=61 was paid as terminal benefits through her bank account after Ms Khan refused to sign the letter of termination.

Aggrieved by the decision to terminate her employment, Ms Khan filed a complaint of unfair labour practice against the appellant in terms of section 93 of the Labour Act [Chapter 28:01] (“the Act”). The dispute was placed before the respondent for a hearing.

It was her case, that, no proper investigations were conducted into the allegations levelled against her, and, further, that she was not granted the right to be heard before she was summarily dismissed.

She thus claimed damages for unlawful dismissal totalling US$23,253=34.

Before the labour officer, the parties did not agree on Ms Khan's monthly salary, as the appellant alleged that it was US$750 while Ms Khan argued that it was US$1,500. The respondent ruled in favour of Ms Khan on this point, and, having found that her dismissal from employment was unfair, ordered the appellant to reinstate her without loss of pay and benefits. Alternatively, the appellant was to pay Ms Khan damages in lieu of reinstatement amounting to a total of US$9,000.

Subsequently, the labour officer applied to the Labour Court in terms of section 93(5a) of the Labour Act for confirmation of her draft ruling. In the application, she cited the appellant only as the respondent while Ms Khan, in whose favour the draft ruling was made, was neither cited, nor joined, as a party to the proceedings.

The appellant opposed the application, but, the court a quo, after hearing oral argument from the appellant, granted an order confirming the ruling.

PROCEEDINGS BEFORE THIS COURT

The appellant was aggrieved by the decision of the court a quo and has appealed against it to this Court.

It argues in the main, that, the court a quo erred in simply confirming the respondent's award to Ms Khan of US$9,000 as damages without fully addressing the principles of law to be applied thereto. It further argued, that, the respondent made a ruling in favour of Ms Khan despite the fact that she was charged with disobedience of lawful orders, negligence or misuse of company property, and, in addition, had failed to avail herself for the hearing which led to her dismissal.

The respondent, that is the labour officer, did not file any heads of argument nor did she appear before this Court on the date of hearing.

The court observed, that, the respondent, who was in effect a nominal respondent, had no personal interest in the dispute nor any outcome thereof.

Ms Khan, was not cited in the appeal before this Court.

Accordingly, a default judgment in this case, whose effect would be to set aside an award made in her favour would be manifestly unjust, given that she would not have been notified of the hearing, nor accorded the right to be heard before such an adverse order is made against her.

SECTION 93(5a) OF THE LABOUR ACT – NEED FOR EMPLOYEE TO BE JOINED IN CONFIRMATION PROCEEDINGS

Counsel for the appellant rightly conceded, that, the Labour Court could have properly ordered the joinder of Ms Khan to the confirmation proceedings before it. This would have given her the right to defend the application for confirmation of the award made in her favour, both in the court a quo and in this Court.

Accordingly, he further conceded that the matter be remitted to the Labour Court for Ms Khan to be joined as a party.

The court saw merit in his request for written reasons for the judgment, in order to clarify both the procedure and the law to be applied, in the face of confusion as to the handling of this and other cases brought to the Labour Court in terms of section 93(5a) of the Labour Act.

The need was recognized for that court to follow a procedure that would ensure that all parties who have a substantial interest in the dispute at hand are accorded the right to argue their respective cases before the determination is made as to whether to confirm or not, a labour officer's draft ruling in terms of section 93(5b) of the Labour Act.

It is noted, that, prior to the Labour Amendment Act No.5 of 2015, labour disputes of right would go before a labour officer for conciliation, and, if conciliation failed and the parties did not reach a settlement, the labour officer would refer the dispute to compulsory arbitration, and both parties would be heard.

Where an arbitral award was made, the successful party would then file the award for registration with a relevant court for purposes of enforcement. The losing party, on the other hand, had the right to appeal against the award to the Labour Court.

The legislature took the view that this procedure resulted in long delays in the determination of the disputes in question, thus depriving litigants of speedy justice. The enactment of section 93(5a) and (5b) of the Labour Act was meant to address this mischief.

Subsections 93(5a) and (5b) of the Labour Act provide as follows:

“(5a) A labour officer who makes a ruling and order in terms of ss(5)(c) (this paragraph provides in the relevant part that a labour officer, after issuing a certificate of no settlement, may order that the employer pays damages to the employee or that he ceases or rectifies any alleged unfair labour practice that is a dispute of rights) shall as soon as practicable -

(a) Make an affidavit to that effect incorporating, referring to, or annexing thereto any evidence upon which he or she makes the draft ruling and order; and

(b) Lodge, on due notice to the employer or other person against whom the ruling and order is made (“the respondent”), an application to the Labour Court, together with the affidavit and a claim for the costs of the application (which shall not exceed such amount as may be prescribed), for an order directing the respondent by a certain day (the “restitution day”) not being earlier than thirty days from the date that the application is set down for hearing (the “return day” of the application) to do or pay what the labour officer ordered under ss(5)(c)(ii) and to pay the costs of the application.

(5b) If, on the return day of the application, the respondent makes no appearance or, after a hearing, the Labour Court grants the application for the order with or without amendment, the labour officer concerned shall, if the respondent does not comply fully or at all with the order by the restitution day, submit the order for registration to whichever court would have had jurisdiction to make such an order had the matter been determined by it, and thereupon the order shall have effect, for purposes of enforcement, of a civil judgment of the appropriate court.”…,.

My interpretation of the two provisions cited suggests the following procedural steps;

(a) The labour officer, after making a ruling in terms section 93(5)(c)(ii) of the Labour Act, makes an affidavit to that effect and attaches to it any evidence on which such ruling is based.

(b) The labour officer then gives notice to the employer or any person against whom such ruling and order is made (respondent), of the lodging by him, of an application with the Labour Court for an order directing the respondent to comply with the ruling within a period not less than 30 days from the date the matter is set down for hearing (restitution day).

(c) The labour officer then appears before the Labour Court on the date of hearing, as the applicant, seeking an order confirming his or her draft ruling.

(d) Should the respondent fail to make an appearance, the Labour Court will nevertheless make a ruling confirming the order with or without an amendment.

(e) On the date of hearing (and presumably with the respondent in attendance) the Labour Court may also conduct a hearing and grant (confirm) the order sought with or without amendment.

(f) Thereafter, should the respondent fail to comply with the order of the Labour Court within 30 days of the hearing date, the labour officer will submit to the relevant court, such order (obtained in default of appearance by the respondent, or after a hearing by the Labour Court) for registration.

(g) Upon submission of the order to the relevant court for registration, it shall have the same effect, for purposes of enforcement, as any civil judgment of that court.

It is to be noted from the above, that, only if the labour officer rules against the employer or any person will he or she be required to take the steps outlined in sections (5a) and (5b) of the Labour Act.

In other words, the provisions do not confer on the Labour Court the jurisdiction to confirm a draft ruling made against an employee (such employee would, it seems, have to pursue other avenues to appeal against the draft ruling).

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

Without a clear pronouncement to that effect, there can, in my view, be no doubt that reference to 'any person' in this provision, is not to be read as including the employee in the same dispute.

I am satisfied, that, the import of the provision is to exclude the confirmation and registration of a draft ruling by the labour officer, which is made in favour of an employer and against an aggrieved employee.

It follows, that, the Labour Court has no jurisdiction to entertain such a matter, and should, on that basis, properly decline to hear it.

It is noted further, that, the wording of section 93(5b) of the Labour Act, albeit not specifically stating so, excludes the employee concerned from the confirmation proceedings.

This is an employee who would have been an active party in, as well as the instigator of the proceedings that resulted in the draft ruling of the labour officer. This is also the same employee who, having won a draft award, may quite possibly have it set aside by the Labour Court without reference to him or her.

In other words, this would happen without the employee being afforded an opportunity to be heard or adduce evidence in defence of the award in question.

It is beyond dispute that such an employee has a direct and substantial interest in the confirmation proceedings before the Labour Court. He or she has the right to be heard in proceedings that may fundamentally affect their interests.

Even the nature of the hearing mentioned in section 93(5b) of the Labour Act is not clear (the hearing is certainly not an appeal against nor a review of the Labour Officer's ruling. This is because the procedure that is set out in sub-sections (5a) and (5b) is not capable of accommodating an appeal or review process in relation to the labour officer's ruling) one may safely assume that like in any hearing, all interested parties must be afforded the opportunity to be heard, unless they choose not to be heard. Only then would the Labour Court be in a position to fully determine the matter and render a judgment that meets the justice of the case.

The employee, on these grounds, can, in my view, properly apply to be joined to the confirmation proceedings in terms of Rule 33(2) of the Labour Court Rules, SI150/17.

The joinder of a party mero motu by the court is not expressly provided for in Rule 33 of the Labour Court Rules, however.

I am nevertheless satisfied, that, this shortcoming is not to be interpreted as ousting the jurisdiction of the Labour Court, in a deserving case, to order mero motu the joinder of an employee who stands to be affected one way or the other, by the outcome of the confirmation proceedings.

Such an order would ensure full compliance with the common law rule, audi alteren partem.

The importance of joining an interested party to the proceedings in a court is authoritatively articulated in a number of authorities:

CILLIERS AC, LOOTS C and NEL HC, HERBSTEIN and Van WINSEN, The Civil Practice of the High Courts and the Supreme Court of Appeal of South Africa (5th edn, Juta & Co Ltd, Cape Town, 2009) Vol. 1, at page 215, explain non-joinder by stating as follows:

“A third party who has, or may have a direct and substantial interest in any order the court might make in proceedings, or, if such an order cannot be sustained or carried into effect without prejudicing that party, is a necessary party and should be joined in the proceedings, unless the court is satisfied that such a person has waived the right to be joined…,; in fact, when such person is a necessary party in the sense that the court will not deal with the issues without a joinder being effected, and no question of discretion or convenience arises.”…,.

The meaning of direct and substantial interest is explained at page 217 to 218 as follows:

“A 'direct and substantial interest' has been held to be 'an interest in the right which is the subject-matter of the litigation and not merely a financial interest which is only an indirect interest in such litigation'. It is 'a legal interest in the subject matter of the litigation, excluding an indirect commercial interest only'. The possibility of such an interest is sufficient, and it is not necessary for the court to determine that it in fact exists. For joinder to be essential, the parties to be joined must have a direct and substantial interest not only in the subject-matter of the litigation but also in the outcome of it.”…,.

It hardly needs emphasis, that, albeit not applicable in casu, an outcome in the confirmation proceedings that has the effect of reversing an award made by a labour officer in favour of an employee would clearly prejudice him or her. The potential of a prejudicial outcome therefore, in my view, confers requisite interest upon the employee, to merit his or her joinder to the proceedings.

The employee, in any case, would still have a legal interest in the outcome even where the ruling of the labour officer is confirmed, with or without amendment.

The employee would therefore be perfectly within his or her rights to seek a joinder to the confirmation proceedings. The Labour Court can and should properly grant such an application, or where it is not made, order mero motu that the employee be joined to the proceedings, so as to be afforded an opportunity to make submissions in response to those of the respondent.

That, the court has the authority to proceed thus is justified on the need to safeguard the interest of third parties in any matter before it as the passage below illustrates (see HERBSTEIN and Van WINSEN, The Civil Practice of the High Courts and the Supreme Court of Appeal of South Africa (5th edn, Juta & Co Ltd, Cape Town, 2009) Vol. 1 at pages 208 to 209);

“In cases of joinder of necessity, if the parties do not raise the issue of non-joinder, the court should raise it mero motu to safeguard the interest of third parties and it should decline to hear the matter until such joinder has been effected, or until the court is satisfied that the third parties have consented to be bound by the judgment or have waived their right to be joined.”

When this is related to the circumstances of this case, it cannot, in my view, be contested that the joinder of the employee, Ms Khan, was necessary.

While it is noted, in casu, that, the Labour Court found in favour of the employee and therefore confirmed the draft ruling, the fact cannot be ignored, that, the court effectively heard evidence from one side of the dispute and not the other, before making its determination.

As the judgment indicates, the court heard oral submissions from the respondent in its opposition to the confirmation of the draft ruling. It then essentially weighed the respondent's submissions against what was contained in the affidavit of the labour officer (before the court a quo, the labour officer briefly repeated the facts of the dispute and the details of the award she had made), and made its determination.

The procedure would have worked substantial injustice upon the employee if the Labour Court had declined to confirm the draft order, or confirmed it with an amendment, for instance, reducing the quantum of the award. Nor, however, could the same procedure be said to have been fair on the respondent, who could be forgiven for thinking, that, the employee had been accorded the unfair advantage of having her case 'argued' for her by the labour officer.

There are further compelling grounds justifying the joinder of the employee to the confirmation proceedings:

(i) Firstly, by allowing the respondent to be served with the notice of hearing of the confirmation proceedings, section 93(5b) of the Labour Act affords the employer an opportunity to oppose the confirmation of the ruling in question. Such opposition may logically be supported by some evidence or arguments that the employee concerned would not be present to counter.

It is evident from section 93(5b) of the Labour Act, that, before the Labour Court, all that the labour officer is required to do is confirm that the application before the court was submitted by him in his role as, effectively, a nominal applicant. He is, in reality, not a party to the proceedings since he would have no personal interest in the outcome, whatever its effect.

He cannot, therefore, be expected to defend his ruling in the face of any submissions made by the respondent in opposing its confirmation.

Defending the labour officer's ruling should properly be the province of the person directly affected by it, that is, the employee concerned.

In my view, the Labour Court's confirmation or non-confirmation of the ruling, after effectively hearing one side of the dispute, is, at best, an irregularity, and, at worst, a travesty of justice.

(ii) Secondly, the procedure presupposes, that, a ruling made by the labour officer in favour of an employee will meet that employee's satisfaction.

It shuts the door, for instance, on an employee who is awarded damages that fall substantially short of what he or she had claimed, who might wish to seek an upward variation of that quantum, in confirmation proceedings before the Labour Court.

A joinder to the proceedings would accord the employee the opportunity to, as it were 'cross oppose' the confirmation proceedings in the desired respect.

(iii) Thirdly, in the case where the draft ruling of the labour officer is not confirmed by the Labour Court, for one reason or the other, the employee might wish to take up the matter on appeal. He would, however, be hamstrung by the fact, that, he was not a party to the confirmation proceedings. Further, the employee cannot expect the labour officer to appeal against the non-confirmation of the order on his or her behalf.

(iv) Fourthly, the confirmation proceedings trigger or may trigger a number of undesirable procedural consequences.

One such consequence is brought into sharp focus where the employer, being disgruntled at the confirmation of the draft ruling, takes that decision on appeal to this Court, citing only the Labour Officer as the respondent.

This is what happened in casu.

All too often, this type of appeal has been set down without any input from the employee or employees concerned, since they were not cited in the confirmation proceedings. They may therefore not even be aware that the matter proceeded to the Supreme Court on appeal.

Equally, often, the respondent cited in the appeal, that is, the labour officer, makes no appearance on the date of hearing, nor does he file any heads of argument. Although vexing, this situation does not come as a surprise to the court, since there is no legal basis set for the labour officer's appearance.

Ordinarily, where a party who was properly served fails to appear on the date of hearing, the party present may move for a default judgment against the defaulting party.

The point has already been made, that, the entering of a default judgment where a labour officer fails to attend court would result in one setting aside of the award made in favour of an employee without such employee's knowledge.

The injustice of such an outcome needs no emphasis.

(v) Finally, the appearance of the labour officer, as the respondent, in a few appeals in this Court, and in the absence of the employee concerned, has also presented procedural problems.

In such cases, the question of the labour officer's competence to so appear has arisen.

In particular, the question is asked as to whose interests he would be representing in the appeal, and on what legal basis? It hardly needs mentioning that these questions would not arise if the employee concerned is joined to the confirmation proceedings before the Labour Court. He or she would then be in a position to file papers and attend court on the date the appeal is heard.

Other aspects of the procedure suggested by subsections (5a) and (5b) of section 93 of the Labour Act merit some comment.

Section 93(5b) of the Labour Act makes it clear, that, the role of the labour officer ends with the submission, by him, of the confirmation order of the Labour Court to a relevant court for registration. The provision is premised on another assumption, which is that the employer will accept as final, the order of the Labour Court pursuant to the confirmation proceedings. That this assumption is misplaced is borne out by the frequent appeals brought to this Court by employers disgruntled at the Labour Court's confirmation of the labour officer's ruling.

Further, while section 93(5b) of the Labour Act clarifies that registration of the confirmation order with a relevant court is meant to facilitate its enforcement, it is silent as to who would drive the process, in particular, who would take out the requisite warrant of execution.

Without being cited as a party, there would be confusion as to whether the 'claimant' that is the employee would have the authority to do it. On the other hand, the labour officer, not being a substantive party to the confirmation proceedings, would lack the requisite locus standi, and, moreso because section 93(5b) does not mandate him to do so.

The danger of the Labour Court's order being rendered a brutum fulmen becomes real.

In conclusion, while one might argue, in view of the absurdities chronicled above, that not enough thought was put into the formulation and practical import of these two provisions, I take the view, that, the absurdities could not have been consciously intended by the legislature.

The simple cure for such absurdity, as has already been stressed, is to join the employee concerned to the proceedings before the Labour Court.

The legislature might well wish to consider addressing this, and the other concerns, set out in this judgment.

DISPOSITION

When all is said and done, and in view of the foregoing, it is my finding, that, there was a fatal non-joinder of the employee, Ms Khan, to the proceedings a quo. Such proceedings can, therefore, not be allowed to stand.

In the result, the following order is made:

1. The appeal be and is hereby allowed.

2. The proceedings and judgment of the court a quo be and are hereby quashed.

3. The matter is remitted to the Labour Court for a rehearing after the employee, Ms Khan, has been joined to the proceedings.

4. Each party shall bear its own costs.

SC70-19 : ADRIAN READ vs JOHN GARDINER and SAFARI HUNTERS (PRIVATE) LIMITED
Ruled By: HLATSHWAYO JA, PATEL JA and MAVANGIRA JA

This is an appeal against the judgment of the High Court dismissing, with costs on a legal practitioner and client scale, an application for condonation of the failure to apply for the rescission of a default judgment granted in Case No. HC2424/17 within the time stipulated by the High Court Rules 1971.

The appellant had simultaneously filed an application for the rescission of the default judgment. However, this part of the application was abandoned following strenuous opposition by the respondents and with the concurrence of the court a quo.

Background

The respondents issued summons against the appellant on 21 March 2017, in Case No. HC2424/17, for the payment of $98,979=, together with interest, in respect of sums allegedly misappropriated by the appellant from the second respondent.

The appellant disputed the claim and denied owing any monies as alleged.

A pre-trial conference was set down for 9 October 2017 and was postponed to 26 October 2017. The appellant failed to appear at the pretrial conference because he was unaware that he was required to be present. His legal practitioner also did not appear himself but was represented by his colleague who was unable to explain the appellant's absence.

A default judgement in favour of the respondents was entered against the appellant who consequently filed the dual application for condonation and rescission referred to above through a different firm of legal practitioners.

As was noted by the court a quo, none of the appellant's erstwhile lawyers had filed any supporting affidavits explaining their conduct and the appellant's absence from the pre-trial conference. Furthermore, there was no supporting affidavit from the employee in that firm of lawyers who was said by the appellant to have called him belatedly on the day of the pretrial conference.

In his founding papers, the appellant lamented the “gross negligence” on the part of his erstwhile lawyers and the “great disservice” occasioned to him by their conduct.

Judgment Appealed Against

The court a quo found, that, in view of the above evidentiary deficiencies, the appellant's averments remained unsubstantiated.

In the court's view, this was a typical case where the dereliction of professional duty, imputed by the appellant to his legal practitioners of choice, should be held against him personally.

The court observed that the pre-trial conference was postponed and that the appellant must have been aware of the postponement. There was therefore no reason why he did not attend the pretrial conference since any diligent litigant would attend unless excused from so doing.

Additionally, the fact that the appellant had accepted the wrong legal advice from his lawyers, in noting an appeal against the default judgement, did not justify his subsequent attempt to follow the correct procedure because, if he were allowed to do so, there would be no finality to litigation.

As regards the appellant's prospects of success, the learned judge a quo found, that, the appellant had not shown that the intended application for rescission had any merit. This was due to the fact that his defence to the claim instituted by the respondents was not articulated in his application.

As for costs, the learned judge took the view, that, the appellant had persisted with the application even though he knew that it had no merit. Consequently, the respondents had been unnecessarily put out of pocket for the costs of attendance by an advocate on two different days when the matter could have been argued in less than an hour.

In the event, the application for condonation of the failure to timeously apply for rescission of the default judgment was dismissed with costs on a punitive scale.

Grounds of Appeal

The grounds of appeal in this matter, as grammatically corrected, are as follows:

(1) The court a quo erred at law in finding, that, the appellant did not articulate his defence to the claim despite such defence being addressed in the application for condonation and the heads of argument. The failure to properly deal with prospects of success amounts to a failure to determine the matter according to law.

(2) The court a quo erred in not making a cumulative assessment on whether all the requirements had been satisfied as required by law. A court is bound, at law, to consider and evaluate all the requirements in conjunction with each other and not to place too much emphasis on the requirements individually.

(3) The court a quo grossly misdirected itself in extending the sins of the appellant's erstwhile legal practitioners to the appellant. The peculiar circumstances of the matter were that the appellant could not make an independent assessment or give a considered instruction on the remedies adopted, and, therefore, non-compliance should not have been extended to him.

(4) The court grossly erred at law in failing to find that the appellant had high prospects of success and in failing to exercise its discretion to grant condonation in the interests of justice.

Criteria for Condonation of Non-compliance

The factors to be considered in an application for the condonation of any failure to comply with the rules of court are well-established. They are amply expounded in several decisions of this Court in which the salient criteria are identified. They include the following:

(a) The extent of the delay involved or non-compliance in question.

(b) The reasonableness of the explanation for the delay or non-compliance.

(c) The prospects of success should the application be granted.

(d) The possible prejudice to the other party.

(e) The need for finality in litigation.

(f) The importance of the case.

(g) The convenience of the court.

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

See Forestry Commission v Moyo 1997 (1) ZLR 254 (S); Maheya v Independent African Church SC58-07; Paul Gary Friendship v Cargo Carriers Limited & Anor SC01-13.

As was observed in the latter case, the factors listed above are not exhaustive.

Whether Defence to Claim was Articulated

In its judgment, the court a quo found that “the applicant has not shown that the intended application for rescission has merits [because] the applicant's defence to the claim is not articulated in this application.”

Having regard to the contents of the applicant's founding affidavit a quo, the above finding is patently erroneous.

In that affidavit, the appellant not only attacks the order sought to be rescinded but also categorically articulates his defence to the main claim, to wit, that the alleged payments of salary were not made by the second respondent but by a different company run by the first respondent and that, therefore, the respondents had no cause of action against him.

In their opposing papers, the respondents did not challenge the appellant's averments as to his defence.

What this shows is that there was a dispute between the parties which required a determination on the merits.

The court a quo did not find that the appellant's defence was spurious or unsustainable. It simply declared that there was no defence whatsoever.

It is relatively clear, therefore, that, the court a quo failed to take into account the appellant's averments, and, consequently, made findings that were entirely inconsistent with the affidavits filed by the parties.

In this regard, it obviously erred and misdirected itself in the exercise of its discretion on the facts that were placed before it, by not dealing properly with the appellant's defence and his prospects of success.

Which Prospects of Success

An interesting point of law that arose in the course of submissions by counsel relates to the following question: which prospects of success must a court assess in considering an application for condonation of the failure to apply timeously for the rescission of a default judgment?

Is it the prospects of success in the application for rescission or the prospects of success in the main matter in which the default judgment was granted?

Counsel for the respondents insists, that, it is the former only, while counsel for the appellant contends that it is either the latter or both, the former and the latter.

In this context, the cases relied upon by both counsel do not afford any definitive answer to the question raised.

In Maheya v Independent African Church SC58-07, the Court was seized with an application for the reinstatement of an appeal. MALABA JA…, held…, that, the appellant could not escape the consequences of the lack of diligence on the part of her legal practitioners and that this, coupled with the absence of prospects of success on appeal, justified the dismissal of the application for reinstatement of the appeal.

In Chomurema & Anor v Telone SC86-14, the applicants sought leave to file a belated appeal against their dismissal from employment.

GWAUNZA JA…, noted…, that, there was nothing to prevent the Labour Court, in the interests of finality to litigation, from hearing a composite application for condonation of the late filing of an application for leave to appeal together with an application for leave to appeal to the Supreme Court.

Finally, the case of Hove v Zimphos Ltd & Ors SC08-18 concerned an application for condonation of the late noting of an application for the rescission of a default judgment.

ZIYAMBI AJA…, found that the applicant had to establish that the intended application for rescission enjoyed prospects of success. The learned judge then proceeded to find that it had not been shown that there were prospects of success on appeal on the grounds of appeal raised or that there was any impropriety in the manner in which the Labour Court exercised its discretion to dismiss the application for condonation. For these combined reasons, the instant application for condonation was dismissed with costs.

As I have already intimated, these decisions, rendered in chamber applications, do not decisively answer the question posed.

My tentative and obiter view is that it is the merits of the main matter and the prospects of success therein that the court is enjoined to consider in an application for the condonation of the late noting of an application for the rescission of a default judgement.

I take this view on the basis, that, it is necessary for the court seized with either application to grapple with the merits of the main matter in order to properly address the gravamen of the real dispute between the parties involved. Any other approach would tend to militate against the need for finality in litigation as well as the interests of justice.

In any event, my view on this question is rendered somewhat superfluous by the fact that the court a quo did not address any prospects of success whatsoever in disposing of the application before it.

Whether Criteria for Condonation Properly Assessed

The appellant does not dispute that his erstwhile legal practitioners displayed a flagrant disregard for the Rules in the manner in which they conducted themselves in the main matter. Nevertheless, he avers that he has a viable and bona fide defence to the respondents claim in that matter.

In this respect, counsel for the respondents submits, that, condonation for non-compliance may be refused even if the applicant concerned has demonstrated good prospects of success.

This submission is clearly correct as is illustrated by the case of Kodzwa v Secretary for Health and Child Welfare & Anor SC50-99…, where SANDURA JA remarked:

“Thus, in the case of a flagrant breach of the Rules, particularly where there is no acceptable explanation for it, the indulgence of condonation may be refused, whatever the merits of the appeal may be.”

While this approach is unassailable, it does not, whether expressly or impliedly, discount the need to consider, cumulatively, all of the factors to be taken into account, and to weigh them in a measured balancing exercise, before deciding whether or not condonation should be granted in any given case: see Maheya v Independent African Church SC58-07 …,.

This position is also aptly captured in Chiweza & Anor v Mangwana & Ors HH186-17 per DUBE J…, as follows:

“The court is required to consider the requirements for an application for condonation cumulatively and weigh them against each other.

The application for condonation is not decided on one exclusive factor.

The existence of strong prospects of success may compensate for any inadequate explanation given for the delay. Where the applicant proffers a good explanation for the delay this may serve to compensate for weak prospects of success in the main matter.

Good prospects of success and a short delay, albeit with an unsatisfactory explanation, may lead to granting of the application.

The court dealing with the application has a wide discretion which it must exercise judicially after considering all the circumstances of the case. The factors are not to be individually considered, but cumulatively considered with the strong making up for the weak. The court should endeavor [sic] to be fair to all the parties involved.”

In the instant case, it is evident that the court a quo focused solely on the reasons for non-compliance, i.e. the gross lack of diligence on the part of the appellant's erstwhile legal practitioners and the vicarious attribution of their incompetence to the appellant himself.

The court failed to assess all the other relevant aspects of the test for condonation.

In particular, it totally failed to evaluate the appellant's prospects of success, whether in respect of the intended application for rescission or in respect of the main matter. The court only considered the reasonableness of the explanation proffered by the appellant for the delay in applying for rescission of the default judgment.

Having found that the appellant's explanation was not reasonable, the court proceeded, without further ado, to dismiss his application for condonation.

However, it was imperative for the court to have assessed all the other salient factors to be considered, in a cumulative fashion, and then to have weighed them against each other, before declining to grant the application before it.

In failing to do so, it proceeded upon the wrong principle and consequently gravely misdirected itself.

Disposition

Given my findings in respect of the first and second grounds of appeal in favour of the appellant, I do not deem it necessary to consider the merits of the third and fourth grounds which are essentially tangential to and dependent upon the first two grounds.

A determination of those grounds is also rendered otiose in light of the amended relief sought by the appellant at the hearing of this appeal, viz. that the matter be remitted to the High Court, before a different judge, to deal with the matter de novo.

The decision of the court a quo was based on the exercise of its discretion on whether or not to grant the application for condonation.

It is trite that an Appellate Court will not readily interfere with the exercise of discretion by a subordinate court. It should only do so, having regard to the oft-quoted test enunciated in Barros & Anor v Chimponda 1999 (1) ZLR 58 (S)…, per GUBBAY CJ:

“If the primary court acts upon a wrong principle; if it allows extraneous or irrelevant matters to guide or affect it; if it mistakes the facts; if it does not take into account some relevant consideration.”

In casu, I have earlier adverted to the errors made by the learned judge a quo in the exercise of his discretion:

(i) Firstly, he mistakenly found that the appellant had not articulated his defence to the main claim and thereby failed to take into account the relevant considerations underlying the appellant's prospects of success.

(ii) Secondly, he confined his attention to the reasonableness or otherwise of the explanation advanced by the appellant for the delay in applying for rescission of the default judgment.

By not having regard to all the salient factors to be considered in an application for condonation, in particular, the appellant's prospects of success in either the intended application for rescission or in the main matter, and by not balancing those factors against each other, the learned judge proceeded on the wrong principle and thereby incurably misdirected himself.

Consequently, the foregoing errors and misdirections, in the injudicious exercise of his discretion, operated to vitiate his decision to dismiss the application for condonation before him. It follows that the decision cannot be allowed to stand and must be set aside.

As regards the relief to be granted in casu, the most appropriate remedy would be to remit the matter to the High Court to enable a different judge to address and determine the application for condonation on a proper basis.

Furthermore, it also seems expedient, in order to expedite the finalisation of the matter, that the application for rescission be adjudicated at the same time as the application for condonation.

In my view, there is nothing, in principle, to preclude the composite adjudication of the two applications together, especially as the considerations to be applied in the determination of both applications are virtually identical.

As regards the costs of this appeal, there is no compelling reason why they should not follow the cause.

It is accordingly ordered that:

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

2. The judgment of the court a quo be and is hereby set aside.

3. The matter is remitted to the High Court, before a different judge:

(a) To determine the application in Case No. HC1067/18 for condonation of the late filing of the application for rescission of the default judgment granted in Case No. HC2424/17 on 26 October 2017; and

(b) Thereafter, in the event that the aforesaid application for condonation is granted, to determine the aforesaid application for rescission of the default judgment.

Back Main menu

Law Portal Zimbabwe

Jurisdiction re: Judicial Deference iro Remittals or Remittal Order and Recognition of Competent Authoritative Bodies

View Appeal SC13-11 : MATTHEW MBUNDIRE vs TYRONE SIM BUTTRESS Ruled By: ZIYAMBI JA, GARWE JA and CHEDA AJA

SC57-05 : FIRST BANKING CORPORATION LTD vs BALTHAZAR MARIMO Ruled By: SANDURA JA, ZIYAMBI JA and GWAUNZA JA

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

Appealed SC21-14 : FLEXIMAIL (PRIVATE) LIMITED vs GIFT BOB SAMANYAU AND THIRTY-EIGHT OTHERS Ruled By: CHIDYAUSIKU CJ, MALABA DCJ, ZIYAMBI JA, GARWE JA and PATEL JA

SC01-15 : FIRSTEL CELLULAR (PRIVATE) LIMITED vs NETONE CELLULAR (PRIVATE) LIMITED Ruled By: ZIYAMBI JA, GARWE JA & PATEL JA

SC71-17 : TELECONTRACT (PRIVATE) LIMITED vs POSTAL AND TELECOMMUNICATIONS REGULATORY AUTHORITY and MINISTER OF INFORMATION, COMMUNICATION, TECHNOLOGY, POSTAL AND COURIER SERVICES and ANOTHER Ruled By: GWAUNZA JA, MAVANGIRA JA and UCHENA JA

Appealed SC12-20 : ZIMASCO (PVT) LTD vs CASPER TSVANGIRAI and BAOBAB REAL ESTATE and THE REGISTRAR OF DEEDS BULAWAYO Ruled By: GARWE JA, HLATSHWAYO JA and GUVAVA JA

SC48-09 : HALWICK INVESTMENTS t/a WHELSON TRANSPORT vs GARAI NYAMWANZA Ruled By: SANDURA JA, ZIYAMBI JA and GARWE JA

SC40-20 : STUTTAFORDS REMOVALS (PRIVATE) LIMITED vs GODFREY NYAMAZUNZU Ruled By: MAKARAU JA, GOWORA JA and BERE JA

SC94-20 : ZIMBABWE HOMELESS PEOPLE'S FEDERATION and OTHERS vs MINISTER OF LOCAL GOVERNMENT AND NATIONAL HOUSING and ZVIMBA RURAL DISTRICT COUNCIL and LEENGATE PL and MINISTER OF LANDS Ruled By: PATEL JA, MAVANGIRA JA and MATHONSI JA

SC94-20 : ZIMBABWE HOMELESS PEOPLE'S FEDERATION and OTHERS vs MINISTER OF LOCAL GOVERNMENT AND NATIONAL HOUSING and ZVIMBA RURAL DISTRICT COUNCIL and LEENGATE PL and MINISTER OF LANDS Ruled By: PATEL JA, MAVANGIRA JA and MATHONSI JA

SC105-20 : CHRISTMAS MAZARIRE vs THE RETRENCHMENT BOARD and OLD MUTUAL SHARED SERVICES (PVT) LTD Ruled By: MAKARAU JA, GOWORA JA and HLATSHWAYO JA

SC58-19 : COMPETITION AND TARIFF COMMISSION vs IWAYAFRICA ZIMBABWE (PRIVATE) LIMITED Ruled By: GWAUNZA DCJ, MAKARAU JA and BHUNU JA

View Appeal HH178-14 : WILLOUGHBY'S INVESTMENTS (PRIVATE) LIMITED vs PERUKE INVESTMENTS (PRIVATE) LIMITED and THE HONOURABLE MR JUSTICE (Ret) A. R. GUBBAY SC Ruled By: ZHOU J

SC88-05 : OLIVINE INDUSTRIES (PRIVATE) LIMITED vs CAUTION NHARARA Ruled By: CHEDA JA, MALABA JA and GWAUNZA JA

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

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

HH42-08 : JAMESON MANDAVA vs TSITSI CHASWEKA Ruled By: MAKARAU JP and HLATSHWAYO J

SC02-14 : C vs C (IN CAMERA) Ruled By: ZIYAMBI JA, GARWE JA and PATEL JA

SC57-19 : THE COLD CHAIN (PRIVATE) LIMITED t/a SEA HARVEST vs ROBSON MAKONI Ruled By: GOWORA JA, HLATSHWAYO JA and MAVANGIRA JA

Appealed SC01-21 : BERNARD MARANGE vs ZVIDZAI MARANGE and MINISTER OF RURAL DEVELOPMENT, PROMOTION AND PRESERVATION OF NATIONAL CULTURE AND HERITAGE and PRESIDENT OF ZIMBABWE Ruled By: GWAUNZA DCJ, PATEL JA and BERE JA

View Appeal HH557-17 : ZVIDZAI MARANGE vs BERNARD MARANGE and MINISTER OF RURAL DEVELOPMENT, PROMOTION and PRESERVATION OF NATIONAL CULTURE and HERITAGE and PRESIDENT OF ZIMBABWE Ruled By: MANGOTA J

SC02-21 : EDDIES PFUGARI (PVT) LTD and EDWARD NYANYIWA vs KNOWE RESIDENTS AND RATEPAYERS ASSOCIATION and NORTON TOWN COUNCIL Ruled By: PATEL JA, BHUNU JA and BERE JA

HH965-15 : CONPLANT TECHNOLOGY (PVT) LTD vs WENTSPRING INVESTMENTS (PVT) LTD Ruled By: MAFUSIRE J

HHH256-21 : IGNATIUS CHOMBO vs THE STATE Ruled By: CHATUKUTA J

SC20-22 : NATIONAL SOCIAL SECURITY AUTHORITY vs HOUSING COOPERATION ZIMBABWE (PVT) LTD and PETER CARNEGIE LLOYD N.O. Ruled By: MAVANGIRA JA, UCHENA JA and CHATUKUTA JA

SC21-21 : ZIMBABWE UNITED PASSENGER COMPANY vs BEAULAR MASHINGE Ruled By: MAKARAU JA, GOWORA JA and BERE JA

Appealed SSC25-21 : ROBERT GUMBURA vs THE STATE Ruled By: BHUNU JA

SC26-21 : JOSEPH LUNGU and OTHERS vs RESERVE BANK OF ZIMBABWE Ruled By: GUVAVA JA, MAVANGIRA JA and MAKONI JA

HB11-15 : CHARITY GONYORA (In her application for the guardianship of Clifford Mayizoni Mwale ) vs X Ruled By: MUTEMA J

HHB14-15 : THE STATE vs ZONDIWE NCUBE Ruled By: TAKUVA J and MUTEMA J

SC60-21 : LEATHOUT INVESTMENTS (PVT) LTD vs FUTURE MUVIRIMI and PETRONELLA MUVIRIMI Ruled By: GOWORA JA, PATEL JA and BERE JA

CC03-13 : DOUGLAS MUZANENHAMO vs OFFICER IN CHARGE CID LAW AND ORDER and OTHERS Ruled By: CHIDYAUSIKU CJ, MALABA DCJ, ZIYAMBI JA, GARWE JA, GOWORA JA, PATEL JA, HLATSHWAYO JA, CHIWESHE AJA and GUVAVA AJA

SC01-17 : JOSEPH LUNGU and OTHERS vs RESERVE BANK OF ZIMBABWE Ruled By: GWAUNZA JA, PATEL JA and MAVANGIRA JA

SC51-14 : MADHATTER MINING COMPANY vs MARVELLOUS TAPFUMA Ruled By: GWAUNZA JA, GOWORA JA and HLATSHWAYO JA

SC65-18 : PIONEER TRANSPORT vs MAFIKENI Ruled By: GARWE JA, MAVANGIRA JA and BHUNU JA

HB29-15 : JOYCE MAKUMBE vs ANDRISON MUNZVENGA Ruled By: MUTEMA J and MOYO J

SC08-16 : CFI RETAIL (PRIVATE) LIMITED vs ERIC MANYIKA Ruled By: MALABA DCJ, ZIYAMBI JA and GOWORA JA

SC131-21 : CHANTELLE MUTESWA vs FRANK BUYANGA SADIQI Ruled By: UCHENA JA, CHITAKUNYE JA and KUDYA JA

SC134-21 : OK ZIMBABWE LIMITED vs BENJAMIN TAZVIVINGA Ruled By: GWAUNZA DCJ, HLATSHWAYO JA and BERE JA

SC141-21 : WISE GARIRA and SHEPHARD MASHINGAIDZE and BAYAI BAYAI vs NATIONAL ENGINEERING WORKERS UNION and FIRST CAPITAL BANK Ruled By: GUVAVA JA, BHUNU JA and KUDYA AJA

SC143-21 : HAPPISON MUCHECHETERE vs ZIMBABWE BROADCASTING CORPORATION (PVT) LTD and RETIRED JUSTICE JAMES DEVITTE N.O. and GIBSON MUNYORO Ruled By: GWAUNZA DCJ, UCHENA JA and MAKONI JA

HH595-15 : MAKANDI TEA AND COFFEE ESTATE (PVT) LTD vs THE ATTORNEY GENERAL OF ZIMBABWE N.O. and V. GAPARA N.O. Ruled By: MAKONI J

HH02-22 : LIVISON CHIKUTU and PHENEAS CHITSANGE and ALBERT DHUMELA vs MINISTER OF LANDS, AGRICULTURE, WATER, CLIMATE & RURAL RESETTLEMENT and OTHERS Ruled By: MAFUSIRE J

CC04-16 : SISTER BERRY (NEE NCUBE) and JESSE AARON BERRY vs THE CHIEF IMMIGRATION OFFICER and THE MINISTER OF HOME AFFAIRS Ruled By: CHIDYAUSIKU CJ, MALABA DCJ, ZIYAMBI JCC, GWAUNZA JCC, GOWORA JCC, HLATSHWAYO JCC, PATEL JCC, GUVAVA JCC and MAVANGIRA AJCC

CC07-15 : DANIS KONSON vs THE STATE Ruled By: CHIDYAUSIKU CJ, MALABA DCJ, GWAUNZA JCC, GARWE JCC, GOWORA JCC, HLATSHWAYO JCC, PATEL JCC, GUVAVA JCC and MAVANGIRA AJCC

SC57-18 : DRUM CITY (PRIVATE) LIMITED vs BRENDA GARUDZO Ruled By: GWAUNZA DCJ, MAKARAU JA and MAKONI JA

SC70-19 : ADRIAN READ vs JOHN GARDINER and SAFARI HUNTERS (PRIVATE) LIMITED Ruled By: HLATSHWAYO JA, PATEL JA and MAVANGIRA JA

Categories

Your Donation.

Law Portal
Zimbabwe

View Appeal
SC13-11 : MATTHEW MBUNDIRE vs TYRONE SIM BUTTRESS
Ruled By: ZIYAMBI JA, GARWE JA and CHEDA AJA

SC57-05 : FIRST BANKING CORPORATION LTD vs BALTHAZAR MARIMO
Ruled By: SANDURA JA, ZIYAMBI JA and GWAUNZA JA

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

Appealed
SC21-14 : FLEXIMAIL (PRIVATE) LIMITED vs GIFT BOB SAMANYAU AND THIRTY-EIGHT OTHERS
Ruled By: CHIDYAUSIKU CJ, MALABA DCJ, ZIYAMBI JA, GARWE JA and PATEL JA

SC01-15 : FIRSTEL CELLULAR (PRIVATE) LIMITED vs NETONE CELLULAR (PRIVATE) LIMITED
Ruled By: ZIYAMBI JA, GARWE JA & PATEL JA

SC71-17 : TELECONTRACT (PRIVATE) LIMITED vs POSTAL AND TELECOMMUNICATIONS REGULATORY AUTHORITY and MINISTER OF INFORMATION, COMMUNICATION, TECHNOLOGY, POSTAL AND COURIER SERVICES and ANOTHER
Ruled By: GWAUNZA JA, MAVANGIRA JA and UCHENA JA

Appealed
SC12-20 : ZIMASCO (PVT) LTD vs CASPER TSVANGIRAI and BAOBAB REAL ESTATE and THE REGISTRAR OF DEEDS BULAWAYO
Ruled By: GARWE JA, HLATSHWAYO JA and GUVAVA JA

SC48-09 : HALWICK INVESTMENTS t/a WHELSON TRANSPORT vs GARAI NYAMWANZA
Ruled By: SANDURA JA, ZIYAMBI JA and GARWE JA

SC40-20 : STUTTAFORDS REMOVALS (PRIVATE) LIMITED vs GODFREY NYAMAZUNZU
Ruled By: MAKARAU JA, GOWORA JA and BERE JA

SC94-20 : ZIMBABWE HOMELESS PEOPLE'S FEDERATION and OTHERS vs MINISTER OF LOCAL GOVERNMENT AND NATIONAL HOUSING and ZVIMBA RURAL DISTRICT COUNCIL and LEENGATE PL and MINISTER OF LANDS
Ruled By: PATEL JA, MAVANGIRA JA and MATHONSI JA

SC94-20 : ZIMBABWE HOMELESS PEOPLE'S FEDERATION and OTHERS vs MINISTER OF LOCAL GOVERNMENT AND NATIONAL HOUSING and ZVIMBA RURAL DISTRICT COUNCIL and LEENGATE PL and MINISTER OF LANDS
Ruled By: PATEL JA, MAVANGIRA JA and MATHONSI JA

SC105-20 : CHRISTMAS MAZARIRE vs THE RETRENCHMENT BOARD and OLD MUTUAL SHARED SERVICES (PVT) LTD
Ruled By: MAKARAU JA, GOWORA JA and HLATSHWAYO JA

SC58-19 : COMPETITION AND TARIFF COMMISSION vs IWAYAFRICA ZIMBABWE (PRIVATE) LIMITED
Ruled By: GWAUNZA DCJ, MAKARAU JA and BHUNU JA

View Appeal
HH178-14 : WILLOUGHBY'S INVESTMENTS (PRIVATE) LIMITED vs PERUKE INVESTMENTS (PRIVATE) LIMITED and THE HONOURABLE MR JUSTICE (Ret) A. R. GUBBAY SC
Ruled By: ZHOU J

SC88-05 : OLIVINE INDUSTRIES (PRIVATE) LIMITED vs CAUTION NHARARA
Ruled By: CHEDA JA, MALABA JA and GWAUNZA JA

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

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

HH42-08 : JAMESON MANDAVA vs TSITSI CHASWEKA
Ruled By: MAKARAU JP and HLATSHWAYO J

SC02-14 : C vs C (IN CAMERA)
Ruled By: ZIYAMBI JA, GARWE JA and PATEL JA

SC57-19 : THE COLD CHAIN (PRIVATE) LIMITED t/a SEA HARVEST vs ROBSON MAKONI
Ruled By: GOWORA JA, HLATSHWAYO JA and MAVANGIRA JA

Appealed
SC01-21 : BERNARD MARANGE vs ZVIDZAI MARANGE and MINISTER OF RURAL DEVELOPMENT, PROMOTION AND PRESERVATION OF NATIONAL CULTURE AND HERITAGE and PRESIDENT OF ZIMBABWE
Ruled By: GWAUNZA DCJ, PATEL JA and BERE JA

View Appeal
HH557-17 : ZVIDZAI MARANGE vs BERNARD MARANGE and MINISTER OF RURAL DEVELOPMENT, PROMOTION and PRESERVATION OF NATIONAL CULTURE and HERITAGE and PRESIDENT OF ZIMBABWE
Ruled By: MANGOTA J

SC02-21 : EDDIES PFUGARI (PVT) LTD and EDWARD NYANYIWA vs KNOWE RESIDENTS AND RATEPAYERS ASSOCIATION and NORTON TOWN COUNCIL
Ruled By: PATEL JA, BHUNU JA and BERE JA

HH965-15 : CONPLANT TECHNOLOGY (PVT) LTD vs WENTSPRING INVESTMENTS (PVT) LTD
Ruled By: MAFUSIRE J

HHH256-21 : IGNATIUS CHOMBO vs THE STATE
Ruled By: CHATUKUTA J

SC20-22 : NATIONAL SOCIAL SECURITY AUTHORITY vs HOUSING COOPERATION ZIMBABWE (PVT) LTD and PETER CARNEGIE LLOYD N.O.
Ruled By: MAVANGIRA JA, UCHENA JA and CHATUKUTA JA

SC21-21 : ZIMBABWE UNITED PASSENGER COMPANY vs BEAULAR MASHINGE
Ruled By: MAKARAU JA, GOWORA JA and BERE JA

Appealed
SSC25-21 : ROBERT GUMBURA vs THE STATE
Ruled By: BHUNU JA

SC26-21 : JOSEPH LUNGU and OTHERS vs RESERVE BANK OF ZIMBABWE
Ruled By: GUVAVA JA, MAVANGIRA JA and MAKONI JA

HB11-15 : CHARITY GONYORA (In her application for the guardianship of Clifford Mayizoni Mwale ) vs X
Ruled By: MUTEMA J

HHB14-15 : THE STATE vs ZONDIWE NCUBE
Ruled By: TAKUVA J and MUTEMA J

SC60-21 : LEATHOUT INVESTMENTS (PVT) LTD vs FUTURE MUVIRIMI and PETRONELLA MUVIRIMI
Ruled By: GOWORA JA, PATEL JA and BERE JA

CC03-13 : DOUGLAS MUZANENHAMO vs OFFICER IN CHARGE CID LAW AND ORDER and OTHERS
Ruled By: CHIDYAUSIKU CJ, MALABA DCJ, ZIYAMBI JA, GARWE JA, GOWORA JA, PATEL JA, HLATSHWAYO JA, CHIWESHE AJA and GUVAVA AJA

SC01-17 : JOSEPH LUNGU and OTHERS vs RESERVE BANK OF ZIMBABWE
Ruled By: GWAUNZA JA, PATEL JA and MAVANGIRA JA

SC51-14 : MADHATTER MINING COMPANY vs MARVELLOUS TAPFUMA
Ruled By: GWAUNZA JA, GOWORA JA and HLATSHWAYO JA

SC65-18 : PIONEER TRANSPORT vs MAFIKENI
Ruled By: GARWE JA, MAVANGIRA JA and BHUNU JA

HB29-15 : JOYCE MAKUMBE vs ANDRISON MUNZVENGA
Ruled By: MUTEMA J and MOYO J

SC08-16 : CFI RETAIL (PRIVATE) LIMITED vs ERIC MANYIKA
Ruled By: MALABA DCJ, ZIYAMBI JA and GOWORA JA

SC131-21 : CHANTELLE MUTESWA vs FRANK BUYANGA SADIQI
Ruled By: UCHENA JA, CHITAKUNYE JA and KUDYA JA

SC134-21 : OK ZIMBABWE LIMITED vs BENJAMIN TAZVIVINGA
Ruled By: GWAUNZA DCJ, HLATSHWAYO JA and BERE JA

SC141-21 : WISE GARIRA and SHEPHARD MASHINGAIDZE and BAYAI BAYAI vs NATIONAL ENGINEERING WORKERS UNION and FIRST CAPITAL BANK
Ruled By: GUVAVA JA, BHUNU JA and KUDYA AJA

SC143-21 : HAPPISON MUCHECHETERE vs ZIMBABWE BROADCASTING CORPORATION (PVT) LTD and RETIRED JUSTICE JAMES DEVITTE N.O. and GIBSON MUNYORO
Ruled By: GWAUNZA DCJ, UCHENA JA and MAKONI JA

HH595-15 : MAKANDI TEA AND COFFEE ESTATE (PVT) LTD vs THE ATTORNEY GENERAL OF ZIMBABWE N.O. and V. GAPARA N.O.
Ruled By: MAKONI J

HH02-22 : LIVISON CHIKUTU and PHENEAS CHITSANGE and ALBERT DHUMELA vs MINISTER OF LANDS, AGRICULTURE, WATER, CLIMATE & RURAL RESETTLEMENT and OTHERS
Ruled By: MAFUSIRE J

CC04-16 : SISTER BERRY (NEE NCUBE) and JESSE AARON BERRY vs THE CHIEF IMMIGRATION OFFICER and THE MINISTER OF HOME AFFAIRS
Ruled By: CHIDYAUSIKU CJ, MALABA DCJ, ZIYAMBI JCC, GWAUNZA JCC, GOWORA JCC, HLATSHWAYO JCC, PATEL JCC, GUVAVA JCC and MAVANGIRA AJCC

CC07-15 : DANIS KONSON vs THE STATE
Ruled By: CHIDYAUSIKU CJ, MALABA DCJ, GWAUNZA JCC, GARWE JCC, GOWORA JCC, HLATSHWAYO JCC, PATEL JCC, GUVAVA JCC and MAVANGIRA AJCC

SC57-18 : DRUM CITY (PRIVATE) LIMITED vs BRENDA GARUDZO
Ruled By: GWAUNZA DCJ, MAKARAU JA and MAKONI JA

SC70-19 : ADRIAN READ vs JOHN GARDINER and SAFARI HUNTERS (PRIVATE) LIMITED
Ruled By: HLATSHWAYO JA, PATEL JA and MAVANGIRA JA