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HB94-11 - GOLDEN MOYO vs STEPHEN MKOBA and DISTRICT ADMINISTRATOR, MIDLANDS PROVINCE and GOVERNOR, MIDLANDS PROVINCE and MINISTER OF LOCAL GOVERNMENT and PRESIDENT OF THE REPUBLIC OF ZIMBABWE

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Procedural Law-viz final orders re confirmation and discharge of a provisional order.
Procedural Law-viz final orders re confirmation and discharge of an interim interdict.
Traditional Leadership-viz chieftainship re appointment of chief.
Procedural Law-viz review re statutory period within which to file review proceedings iro Rule 259 of the High Court Rules.
Procedural Law-viz service of process.
Administrative Law-viz the exercise of administrative prerogative.
Procedural Law-viz pleadings re non-pleaded issues iro matters introduced for the first time in oral submissions.
Procedural Law-viz pleadings re matters not specifically pleaded iro issues raised for the first time in oral submissions.
Procedural Law-viz non pleaded matters re issues introduced for the first time in oral submissions iro points of law.
Procedural Law-viz issues not specifically pleaded re matters raised for the first time in oral submissions iro point of law.
Procedural Law-viz cause of action re proceedings involving the President iro Rule 18 of the High Court Rules.
Procedural Law-viz cause of action re draft order.
Procedural Law-viz review re grounds of review iro Rule 257 of the High Court Rules.
Procedural Law-viz review re grounds for review iro Rule 257 of the High Court Rules.
Procedural Law-viz affidavits re founding affidavit iro the principle that a case stands or falls on the founding affidavit.
Procedural Law-viz affidavits re founding affidavit iro the rule that a case stands or falls on the founding affidavit.
Procedural Law-viz cause of action re form of proceedings iro application proceedings.
Procedural Law-viz cause of action re manner of proceedings iro motion proceedings.
Procedural Law-viz cause of action re nature of proceedings iro application procedure.

Review re: Terminated or Complete Proceedings iro Approach, Review Jurisdiction, Powers, Grounds & Record of Proceedings

There are two matters in this case.

The first matter, HC1396/09, is for the confirmation or discharge of a provisional order granted by this court on 10 September 2009. The second, which is the main matter, under HC1410/09, is for the rescission of the decision to appoint the first respondent as substantive Chief Bunina.

In the latter matter, the applicant also seeks that the matter be remitted to the office of the second respondent for the reconvening of a selection meeting of all interested parties for the fresh selection of a candidate for appointment as Chief Bunina.

The first respondent had raised points in limine in respect of main matter. I propose to deal with these points in turn.

Non-compliance with Order 33 Rule 256

The first point is that the application was filed out of time.

It is alleged that the applicant fell foul of the provisions of Rule 259 of the High Court Rules as it was filed after the eight (8) week period.

The decision by the President i.e. the fifth respondent was made on 7 May 2007. The decision was communicated to the second respondent by letter dated 8 May 2007. The second respondent attempted to communicate this decision to the applicant by a letter dated 30 May 2007. Unfortunately, the letter was misdirected to a non-existing address, viz “132 Iona Road, Pilani, Bulawayo.”

It is beyond dispute that this address does not exist and that the letter did not reach the applicant.

It is trite that the running of the eight (8) week period, supra, only starts from the time the applicant is notified of completion of the proceedings.

In Clan Transport Co (Pvt) Ltd v Road Service Board 1956 (4) SA 26 (SR)…, it was stated -

“To my mind, when an administrative body, such as the present Board, is called upon to perform functions of a semi judicial character, the delivery of its judgment on the issue before it is as much a part of its proceedings as its deliberations and the arrival, after discussion, at its conclusion.

Until its conclusion has been clothed with finality, by its communication either in open sitting, or by its administrative officer to the parties, I find it difficult to see on what ground a party could legitimately attack any subsequent unanimous decision by it to reconsider the matter and reverse the conclusion at which it had at one stage arrived…,. I have come to the conclusion that the Board's proceedings terminated only on communication of its decision in April 1956.”…,.

Further, in Vrystaat Estates (Pvt) Ltd v President, Administrative Court & Ors 1991 (1) ZLR 323 (S)…, McNALLY JA said –

“No authority is necessary for the proposition that the eight weeks cannot possibly apply to an applicant who does not even know of the decision for far longer than eight weeks after it was made, precisely because he was not informed of the proceedings as he should have been.

Indeed, it seems to me to be artificial to seek to apply the eight weeks rule as from the date the appellant became aware of the proceedings. The Cluff Minerals case 1989 (3) ZLR 338 (SC) and the Clan Transport case 1956 R & N 322 at 325-6 were concerned with the date when the proceedings were terminated. They decided that this was the date when official notice of the decision was communicated to the party concerned.”…,.

See also Gula-Ndebele v Bhunu NO HH14-10.

This should put this half-hearted argument to rest, because, in casu, the termination of the appointment proceedings was only communicated to the applicant, by the third respondent, on 4 September 2009. The purported proof of the first respondent's appointment was only released to the applicant on 9 September 2009. This application was filed two days later, on 11 September 2009.

This point is devoid of merit....,.

Non-compliance with Rule 257

The complaint here is that the court application does not state clearly the grounds upon which the applicant seeks to have the proceedings set aside or corrected and the exact relief prayed as required by Rule 257. Reliance was placed on Chataira v ZESA 2001 (1) ZLR 30 (H) and Minister of Labour v Pen Transport SC45-89 (1989 (1) ZLR 293 (S).

It is trite, that, a notice of motion is interpreted also to include the founding affidavit: Manica Zimbabwe Ltd v Chairman, Labour Relations Board HH250-91.

In paragraph 7 of the founding affidavit the applicant states -

“7. The decision in question is reviewable on the grounds of:-

(a) Procedural impropriety or irregularity;

(b) Irregularity in the decision;

(c) Violation of the rules of natural justice;

(d) Unreasonableness.

I am therefore seeking an order of this honourable court setting aside the selection and appointment of 1st respondent as Chief Bunina of Lower Gweru and directing the 2nd and 3rd respondent to reconvene a meeting of all interested persons, all the Bunina clan duly assisted by the community and the relevant government authorities to select the chief in accordance with their customary principles of succession as obtain in their community.”

And, further, at paragraph 9 –

“9. The appointment was wrong as it was based on incorrect information put together by the staff at the Ministry of Local Government who ignored the wishes, norms, and customary principles of succession of the Bunina clan and imposed certain alien principles quite unknown to our clan…,.”

The foregoing averments set out the grounds for review plus the relief sought and there is, therefore, compliance with Rule 257 and the objection should fail.

Proof of Service, Return of Service, Address and Manner of Service re: Approach

There are two matters in this case.

The first matter, HC1396/09, is for the confirmation or discharge of a provisional order granted by this court on 10 September 2009. The second, which is the main matter, under HC1410/09, is for the rescission of the decision to appoint the first respondent as substantive Chief Bunina.

In the latter matter, the applicant also seeks that the matter be remitted to the office of the second respondent for the reconvening of a selection meeting of all interested parties for the fresh selection of a candidate for appointment as Chief Bunina.

The first respondent had raised points in limine in respect of main matter. I propose to deal with these points in turn.

Non-compliance with Order 33 Rule 256

The first point is that the application was filed out of time.

It is alleged that the applicant fell foul of the provisions of Rule 259 of the High Court Rules as it was filed after the eight (8) week period.

The decision by the President i.e. the fifth respondent was made on 7 May 2007. The decision was communicated to the second respondent by letter dated 8 May 2007. The second respondent attempted to communicate this decision to the applicant by a letter dated 30 May 2007. Unfortunately, the letter was misdirected to a non-existing address, viz “132 Iona Road, Pilani, Bulawayo.”

It is beyond dispute that this address does not exist and that the letter did not reach the applicant.

It is trite that the running of the eight (8) week period, supra, only starts from the time the applicant is notified of completion of the proceedings.

In Clan Transport Co (Pvt) Ltd v Road Service Board 1956 (4) SA 26 (SR)…, it was stated -

“To my mind, when an administrative body, such as the present Board, is called upon to perform functions of a semi judicial character, the delivery of its judgment on the issue before it is as much a part of its proceedings as its deliberations and the arrival, after discussion, at its conclusion.

Until its conclusion has been clothed with finality, by its communication either in open sitting, or by its administrative officer to the parties, I find it difficult to see on what ground a party could legitimately attack any subsequent unanimous decision by it to reconsider the matter and reverse the conclusion at which it had at one stage arrived…,. I have come to the conclusion that the Board's proceedings terminated only on communication of its decision in April 1956.”…,.

Further, in Vrystaat Estates (Pvt) Ltd v President, Administrative Court & Ors 1991 (1) ZLR 323 (S)…, McNALLY JA said –

“No authority is necessary for the proposition that the eight weeks cannot possibly apply to an applicant who does not even know of the decision for far longer than eight weeks after it was made, precisely because he was not informed of the proceedings as he should have been.

Indeed, it seems to me to be artificial to seek to apply the eight weeks rule as from the date the appellant became aware of the proceedings. The Cluff Minerals case 1989 (3) ZLR 338 (SC) and the Clan Transport case 1956 R & N 322 at 325-6 were concerned with the date when the proceedings were terminated. They decided that this was the date when official notice of the decision was communicated to the party concerned.”…,.

See also Gula-Ndebele v Bhunu NO HH14-10.

This should put this half-hearted argument to rest, because, in casu, the termination of the appointment proceedings was only communicated to the applicant, by the third respondent, on 4 September 2009. The purported proof of the first respondent's appointment was only released to the applicant on 9 September 2009. This application was filed two days later, on 11 September 2009.

This point is devoid of merit.

Administrative Law re: Approach, Discretionary Powers, Judicial Interference and the Doctrine of Legitimate Expectation

There are two matters in this case.

The first matter, HC1396/09, is for the confirmation or discharge of a provisional order granted by this court on 10 September 2009. The second, which is the main matter, under HC1410/09, is for the rescission of the decision to appoint the first respondent as substantive Chief Bunina.

In the latter matter, the applicant also seeks that the matter be remitted to the office of the second respondent for the reconvening of a selection meeting of all interested parties for the fresh selection of a candidate for appointment as Chief Bunina.

The first respondent had raised points in limine in respect of main matter. I propose to deal with these points in turn.

Non-compliance with Order 33 Rule 256

The first point is that the application was filed out of time.

It is alleged that the applicant fell foul of the provisions of Rule 259 of the High Court Rules as it was filed after the eight (8) week period.

The decision by the President i.e. the fifth respondent was made on 7 May 2007. The decision was communicated to the second respondent by letter dated 8 May 2007. The second respondent attempted to communicate this decision to the applicant by a letter dated 30 May 2007. Unfortunately, the letter was misdirected to a non-existing address, viz “132 Iona Road, Pilani, Bulawayo.”

It is beyond dispute that this address does not exist and that the letter did not reach the applicant.

It is trite that the running of the eight (8) week period, supra, only starts from the time the applicant is notified of completion of the proceedings.

In Clan Transport Co (Pvt) Ltd v Road Service Board 1956 (4) SA 26 (SR)…, it was stated -

“To my mind, when an administrative body, such as the present Board, is called upon to perform functions of a semi judicial character, the delivery of its judgment on the issue before it is as much a part of its proceedings as its deliberations and the arrival, after discussion, at its conclusion.

Until its conclusion has been clothed with finality, by its communication either in open sitting, or by its administrative officer to the parties, I find it difficult to see on what ground a party could legitimately attack any subsequent unanimous decision by it to reconsider the matter and reverse the conclusion at which it had at one stage arrived…,. I have come to the conclusion that the Board's proceedings terminated only on communication of its decision in April 1956.”…,.

Further, in Vrystaat Estates (Pvt) Ltd v President, Administrative Court & Ors 1991 (1) ZLR 323 (S)…, McNALLY JA said –

“No authority is necessary for the proposition that the eight weeks cannot possibly apply to an applicant who does not even know of the decision for far longer than eight weeks after it was made, precisely because he was not informed of the proceedings as he should have been.

Indeed, it seems to me to be artificial to seek to apply the eight weeks rule as from the date the appellant became aware of the proceedings. The Cluff Minerals case 1989 (3) ZLR 338 (SC) and the Clan Transport case 1956 R & N 322 at 325-6 were concerned with the date when the proceedings were terminated. They decided that this was the date when official notice of the decision was communicated to the party concerned.”…,.

See also Gula-Ndebele v Bhunu NO HH14-10.

This should put this half-hearted argument to rest, because, in casu, the termination of the appointment proceedings was only communicated to the applicant, by the third respondent, on 4 September 2009. The purported proof of the first respondent's appointment was only released to the applicant on 9 September 2009. This application was filed two days later, on 11 September 2009.

This point is devoid of merit.

Pleadings re: Belated Pleadings, Matters Raised Mero Motu by the Court and the Doctrine of Notice iro Approach

There are two matters in this case.

The first matter, HC1396/09, is for the confirmation or discharge of a provisional order granted by this court on 10 September 2009. The second, which is the main matter, under HC1410/09, is for the rescission of the decision to appoint the first respondent as substantive Chief Bunina.

In the latter matter, the applicant also seeks that the matter be remitted to the office of the second respondent for the reconvening of a selection meeting of all interested parties for the fresh selection of a candidate for appointment as Chief Bunina.

The first respondent had raised points in limine in respect of main matter. I propose to deal with these points in turn....,.

Non-compliance with Order 3 Rule 18

This point in limine was not raised in the first respondent's heads of argument but was raised for the first time in court by counsel for the first respondent.

Cause of Action re: Suits or Proceedings Involving the President or Judges

There are two matters in this case.

The first matter, HC1396/09, is for the confirmation or discharge of a provisional order granted by this court on 10 September 2009. The second, which is the main matter, under HC1410/09, is for the rescission of the decision to appoint the first respondent as substantive Chief Bunina.

In the latter matter, the applicant also seeks that the matter be remitted to the office of the second respondent for the reconvening of a selection meeting of all interested parties for the fresh selection of a candidate for appointment as Chief Bunina.

The first respondent had raised points in limine in respect of main matter. I propose to deal with these points in turn....,.

Non-compliance with Order 3 Rule 18

This point in limine was not raised in the first respondent's heads of argument but was raised for the first time in court by counsel for the first respondent.

Order 3 deals with summons matters i.e. actions and not applications.

We are here dealing with a court application instituted in terms of Order 32. The application procedure has no rule similar to Rule 18. Rule 18 is applicable to action/summons proceedings and not court applications.

The rationale seems to be, that, in summons proceedings the matter may require the President to give viva voce evidence, and, as such, leave is required in terms of Rule 18. This is to avoid the President (and the Judges) being unnecessarily dragged to court to testify. The scenario is different in court applications as the evidence therein is via affidavits.

This point is equally devoid of merit.

Approach re: Issues in Limine, Technical or Procedural Objections, Dilatory, Declaratory and Dispositive Pleas


There are two matters in this case.

The first matter, HC1396/09, is for the confirmation or discharge of a provisional order granted by this court on 10 September 2009. The second, which is the main matter, under HC1410/09, is for the rescission of the decision to appoint the first respondent as substantive Chief Bunina.

In the latter matter, the applicant also seeks that the matter be remitted to the office of the second respondent for the reconvening of a selection meeting of all interested parties for the fresh selection of a candidate for appointment as Chief Bunina.

The first respondent had raised points in limine in respect of main matter. I propose to deal with these points in turn....,.

Formulation of the Draft Order

The wording of the draft order cannot be a point in limine.

The objection raised here does not dispose of the matter. In any event, the draft order is merely a guide and the court or the Judge may amend it or completely substitute it.

This objection has no merit.

Cause of Action and Draft Orders re: Approach, Timing, Framing and Legal Basis for Invoking Jurisdiction of the Court


There are two matters in this case.

The first matter, HC1396/09, is for the confirmation or discharge of a provisional order granted by this court on 10 September 2009. The second, which is the main matter, under HC1410/09, is for the rescission of the decision to appoint the first respondent as substantive Chief Bunina.

In the latter matter, the applicant also seeks that the matter be remitted to the office of the second respondent for the reconvening of a selection meeting of all interested parties for the fresh selection of a candidate for appointment as Chief Bunina.

The first respondent had raised points in limine in respect of main matter. I propose to deal with these points in turn....,.

Formulation of the Draft Order

The wording of the draft order cannot be a point in limine.

The objection raised here does not dispose of the matter. In any event, the draft order is merely a guide and the court or the Judge may amend it or completely substitute it.

This objection has no merit.

Cause of Action re: Form, Manner and Nature of Proceedings iro Approach to Application, Motion and Action Proceedings


There are two matters in this case.

The first matter, HC1396/09, is for the confirmation or discharge of a provisional order granted by this court on 10 September 2009. The second, which is the main matter, under HC1410/09, is for the rescission of the decision to appoint the first respondent as substantive Chief Bunina.

In the latter matter, the applicant also seeks that the matter be remitted to the office of the second respondent for the reconvening of a selection meeting of all interested parties for the fresh selection of a candidate for appointment as Chief Bunina.

The first respondent had raised points in limine in respect of main matter. I propose to deal with these points in turn....,.

Non-compliance with Rule 257

The complaint here is that the court application does not state clearly the grounds upon which the applicant seeks to have the proceedings set aside or corrected and the exact relief prayed as required by Rule 257. Reliance was placed on Chataira v ZESA 2001 (1) ZLR 30 (H) and Minister of Labour v Pen Transport SC45-89 (1989 (1) ZLR 293 (S).

It is trite, that, a notice of motion is interpreted also to include the founding affidavit: Manica Zimbabwe Ltd v Chairman, Labour Relations Board HH250-91.

In paragraph 7 of the founding affidavit the applicant states -

“7. The decision in question is reviewable on the grounds of:-

(a) Procedural impropriety or irregularity;

(b) Irregularity in the decision;

(c) Violation of the rules of natural justice;

(d) Unreasonableness.

I am therefore seeking an order of this honourable court setting aside the selection and appointment of 1st respondent as Chief Bunina of Lower Gweru and directing the 2nd and 3rd respondent to reconvene a meeting of all interested persons, all the Bunina clan duly assisted by the community and the relevant government authorities to select the chief in accordance with their customary principles of succession as obtain in their community.”

And, further, at paragraph 9 –

“9. The appointment was wrong as it was based on incorrect information put together by the staff at the Ministry of Local Government who ignored the wishes, norms, and customary principles of succession of the Bunina clan and imposed certain alien principles quite unknown to our clan…,.”

The foregoing averments set out the grounds for review plus the relief sought and there is, therefore, compliance with Rule 257 and the objection should fail.

Founding, Opposing, Supporting, Answering Affidavits re: Approach & Rule that a Case Stands or Falls on Founding Affidavit


There are two matters in this case.

The first matter, HC1396/09, is for the confirmation or discharge of a provisional order granted by this court on 10 September 2009. The second, which is the main matter, under HC1410/09, is for the rescission of the decision to appoint the first respondent as substantive Chief Bunina.

In the latter matter, the applicant also seeks that the matter be remitted to the office of the second respondent for the reconvening of a selection meeting of all interested parties for the fresh selection of a candidate for appointment as Chief Bunina.

The first respondent had raised points in limine in respect of main matter. I propose to deal with these points in turn....,.

Non-compliance with Rule 257

The complaint here is that the court application does not state clearly the grounds upon which the applicant seeks to have the proceedings set aside or corrected and the exact relief prayed as required by Rule 257. Reliance was placed on Chataira v ZESA 2001 (1) ZLR 30 (H) and Minister of Labour v Pen Transport SC45-89 (1989 (1) ZLR 293 (S).

It is trite, that, a notice of motion is interpreted also to include the founding affidavit: Manica Zimbabwe Ltd v Chairman, Labour Relations Board HH250-91.

In paragraph 7 of the founding affidavit the applicant states -

“7. The decision in question is reviewable on the grounds of:-

(a) Procedural impropriety or irregularity;

(b) Irregularity in the decision;

(c) Violation of the rules of natural justice;

(d) Unreasonableness.

I am therefore seeking an order of this honourable court setting aside the selection and appointment of 1st respondent as Chief Bunina of Lower Gweru and directing the 2nd and 3rd respondent to reconvene a meeting of all interested persons, all the Bunina clan duly assisted by the community and the relevant government authorities to select the chief in accordance with their customary principles of succession as obtain in their community.”

And, further, at paragraph 9 –

“9. The appointment was wrong as it was based on incorrect information put together by the staff at the Ministry of Local Government who ignored the wishes, norms, and customary principles of succession of the Bunina clan and imposed certain alien principles quite unknown to our clan…,.”

The foregoing averments set out the grounds for review plus the relief sought and there is, therefore, compliance with Rule 257 and the objection should fail.

Nomination, Appointment, Misconduct, Suspension and the Removal of Traditional Leaders


There are two matters in this case.

The first matter, HC1396/09, is for the confirmation or discharge of a provisional order granted by this court on 10 September 2009. The second, which is the main matter, under HC1410/09, is for the rescission of the decision to appoint the first respondent as substantive Chief Bunina.

In the latter matter, the applicant also seeks that the matter be remitted to the office of the second respondent for the reconvening of a selection meeting of all interested parties for the fresh selection of a candidate for appointment as Chief Bunina.

The first respondent had raised points in limine in respect of main matter. I propose to deal with these points in turn.

Non-compliance with Order 33 Rule 256

The first point is that the application was filed out of time.

It is alleged that the applicant fell foul of the provisions of Rule 259 of the High Court Rules as it was filed after the eight (8) week period.

The decision by the President i.e. the fifth respondent was made on 7 May 2007. The decision was communicated to the second respondent by letter dated 8 May 2007. The second respondent attempted to communicate this decision to the applicant by a letter dated 30 May 2007. Unfortunately, the letter was misdirected to a non-existing address, viz “132 Iona Road, Pilani, Bulawayo.”

It is beyond dispute that this address does not exist and that the letter did not reach the applicant.

It is trite that the running of the eight (8) week period, supra, only starts from the time the applicant is notified of completion of the proceedings.

In Clan Transport Co (Pvt) Ltd v Road Service Board 1956 (4) SA 26 (SR)…, it was stated -

“To my mind, when an administrative body, such as the present Board, is called upon to perform functions of a semi judicial character, the delivery of its judgment on the issue before it is as much a part of its proceedings as its deliberations and the arrival, after discussion, at its conclusion.

Until its conclusion has been clothed with finality, by its communication either in open sitting, or by its administrative officer to the parties, I find it difficult to see on what ground a party could legitimately attack any subsequent unanimous decision by it to reconsider the matter and reverse the conclusion at which it had at one stage arrived…,. I have come to the conclusion that the Board's proceedings terminated only on communication of its decision in April 1956.”…,.

Further, in Vrystaat Estates (Pvt) Ltd v President, Administrative Court & Ors 1991 (1) ZLR 323 (S)…, McNALLY JA said –

“No authority is necessary for the proposition that the eight weeks cannot possibly apply to an applicant who does not even know of the decision for far longer than eight weeks after it was made, precisely because he was not informed of the proceedings as he should have been.

Indeed, it seems to me to be artificial to seek to apply the eight weeks rule as from the date the appellant became aware of the proceedings. The Cluff Minerals case 1989 (3) ZLR 338 (SC) and the Clan Transport case 1956 R & N 322 at 325-6 were concerned with the date when the proceedings were terminated. They decided that this was the date when official notice of the decision was communicated to the party concerned.”…,.

See also Gula-Ndebele v Bhunu NO HH14-10.

This should put this half-hearted argument to rest, because, in casu, the termination of the appointment proceedings was only communicated to the applicant, by the third respondent, on 4 September 2009. The purported proof of the first respondent's appointment was only released to the applicant on 9 September 2009. This application was filed two days later, on 11 September 2009.

This point is devoid of merit.

Non-compliance with Order 3 Rule 18

This point in limine was not raised in the first respondent's heads of argument but was raised for the first time in court by counsel for the first respondent.

Order 3 deals with summons matters i.e. actions and not applications.

We are here dealing with a court application instituted in terms of Order 32. The application procedure has no rule similar to Rule 18. Rule 18 is applicable to action/summons proceedings and not court applications.

The rationale seems to be, that, in summons proceedings the matter may require the President to give viva voce evidence, and, as such, leave is required in terms of Rule 18. This is to avoid the President (and the Judges) being unnecessarily dragged to court to testify. The scenario is different in court applications as the evidence therein is via affidavits.

This point is equally devoid of merit.

Formulation of the Draft Order

The wording of the draft order cannot be a point in limine.

The objection raised here does not dispose of the matter. In any event, the draft order is merely a guide and the court or the Judge may amend it or completely substitute it.

This objection has no merit.

Non-compliance with Rule 257

The complaint here is that the court application does not state clearly the grounds upon which the applicant seeks to have the proceedings set aside or corrected and the exact relief prayed as required by Rule 257. Reliance was placed on Chataira v ZESA 2001 (1) ZLR 30 (H) and Minister of Labour v Pen Transport SC45-89 (1989 (1) ZLR 293 (S).

It is trite, that, a notice of motion is interpreted also to include the founding affidavit: Manica Zimbabwe Ltd v Chairman, Labour Relations Board HH250-91.

In paragraph 7 of the founding affidavit the applicant states -

“7. The decision in question is reviewable on the grounds of:-

(a) Procedural impropriety or irregularity;

(b) Irregularity in the decision;

(c) Violation of the rules of natural justice;

(d) Unreasonableness.

I am therefore seeking an order of this honourable court setting aside the selection and appointment of 1st respondent as Chief Bunina of Lower Gweru and directing the 2nd and 3rd respondent to reconvene a meeting of all interested persons, all the Bunina clan duly assisted by the community and the relevant government authorities to select the chief in accordance with their customary principles of succession as obtain in their community.”

And, further, at paragraph 9 –

“9. The appointment was wrong as it was based on incorrect information put together by the staff at the Ministry of Local Government who ignored the wishes, norms, and customary principles of succession of the Bunina clan and imposed certain alien principles quite unknown to our clan…,.”

The foregoing averments set out the grounds for review plus the relief sought and there is, therefore, compliance with Rule 257 and the objection should fail.

In light of the foregoing, there is no merit in all the points in limine raised by the first respondent.

Accordingly, the points in limine are all dismissed and the application will be considered on its merits.


NDOU J: There are two matters in this case.

The first matter, HC1396/09, is for the confirmation or discharge of a provisional order granted by this court on 10 September 2009. The second, which is the main matter under HC1410/09, is for the rescission of the decision to appoint the 1st respondent as substantive Chief Bunina.

In the latter matter the applicant also seeks that the matter be remitted to the office of the 2nd respondent for the reconvening of a selection meeting of all interested parties for the fresh selection of a candidate for appointment as Chief Bunina.

The 1st respondent had raised points in limine in respect of main matter. I propose to deal with these points in turn.

Non-compliance with Order 33 Rule 256

The first point is that the application was filed out of time.

It is alleged that the applicant fell foul of the provisions of Rule 259 of the High Court Rules as it was filed after the eight (8) week period.

The decision by the President i.e. 5th respondent was made on 7 May 2007. The decision was communicated to the 2nd respondent by letter dated 8 May 2007. The 2nd respondent attempted to communicate this decision to the applicant by a letter fated 30 May 2007. Unfortunately the letter was misdirected to a non-existing address viz “132 Iona Road, Pilani, Bulawayo”.

It is beyond dispute that this address does not exist and that the letter did not reach the applicant.

It is trite that the running of the eight (8) week period, supra, only starts from the time the applicant is notified of completion of the proceedings.

In Clan Transport Co (Pvt) Ltd v Road Service Board 1956 (4) SA 26 (SR) at 28H to 29D it was stated -

“To my mind when an administrative body such as the present Board is called upon to perform functions of a semi judicial character, the delivery of its judgment on the issue before it is as much a part of its proceedings as its deliberations and the arrival after discussion at its conclusion.

Until its conclusion has been clothed with finality by its communication either in open sitting, or by its administrative officer to the parties, I find it difficult to see on what ground a party could legitimately attack any subsequent unanimous decision by it to reconsider the matter and reverse the conclusion at which it had at one stage arrived… I have come to the conclusion that the Board's proceedings terminated only on communication of its decision in April 1956.” (Emphasis added)

Further, in Vrystaat Estates (Pvt) Ltd v President, Administrative Court & Ors 1991 (1) ZLR 323 (S) at 330B-D–D McNALLY JA said –

“No authority is necessary for the proposition that the eight weeks cannot possibly apply to an applicant who does not even know of the decision for far longer than eight weeks after it was made, precisely because he was not informed of the proceedings as he should have been. Indeed it seems to me to be artificial to seek to apply the eight weeks rule as from the date the appellant became aware of the proceedings. The Cluff Minerals case 1989 (3) ZLR 338 (SC) and the Clan Transport case 1956 R & N 322 at 325-6 were concerned with the date when the proceedings were terminated. They decided that this was the date when official notice of the decision was communicated to the party concerned.” (Emphasis added)

See also Gula-Ndebele v Bhunu NO HH-14-10.

This should put this half hearted argument to rest because, in casu, the termination of the appointment proceedings was only communicated to the applicant by the 3rd respondent on 4 September 2009. The purported proof of 1st respondent's appointment was only released to the applicant on 9 September 2009. This application was filed two days later on 11 September 2009. This point is devoid of merit.

Non-compliance with Order 3 Rule 18

This point in limine was not raised in the 1st respondent's heads of argument but was raised for the first time in court by Ms Moyo for the 1st respondent.

Order 3 deals with summons matters i.e. actions and not applications.

We are here dealing with a court application instituted in terms of Order 32. The application procedure has no rule similar to Rule 18. Rule 18 is applicable to action/summons proceedings and not court applications.

The rationale seems to be that in summons proceedings the matter may require the President to give viva voce evidence and as such leave is required in terms of Rule 18. This is to avoid the President (and the Judges) being unnecessarily dragged to court to testify. The scenario is different in court applications as the evidence therein is via affidavits. This point is equally devoid of merit.

Formulation of the draft order

The wording of the draft order cannot be a point in limine. The objection raised here does not dispose of the matter. In any event, the draft order is merely a guide and the court or the Judge may amend it or completely substitute it. This objection has no merit.

Non-compliance with Rule 257

The complaint here is that the court application does not state clearly the grounds upon which the applicant seeks to have the proceedings set aside or corrected and the exact relief prayed as required by Rule 257. Reliance was placed on Chataira v ZESA 2001 (1) ZLR 30 (H) and Minister of Labour v Pen Transport S-45-89 (1989 (1) ZLR 293 (S).

It is trite that a notice of motion is interpreted also to include the founding affidavit – Manica Zimbabwe Ltd v Chairman, Labour Relations Board HH-250-91. In paragraph 7 of the founding affidavit the applicant states -

“7. The decision in question is reviewable on the grounds of:-

(a) Procedural impropriety or irregularity;

(b) Irregularity in the decision;

(c) Violation of the rules of natural justice;

(d) Unreasonableness.

I am therefore seeking an order of this honourable court setting aside the selection and appointment of 1st respondent as Chief Bunina of Lower Gweru and directing the 2nd and 3rd respondent to reconvene a meeting of all interested persons, all the Bunina clan duly assisted by the community and the relevant government authorities to select the chief in accordance with their customary principles of succession as obtain in their community.”

And further at paragraph 9 –

“9. The appointment was wrong as it was based on incorrect information put together by the staff at the Ministry of Local Government who ignored the wishes, norms and customary principles of succession of the Bunina clan and imposed certain alien principles quite unknown to our clan…”

The foregoing averments set out the grounds for review plus the relief sought and there is, therefore, compliance with Rule 257 and the objection should fail.

In light of the foregoing there is no merit in all the points in limine raised by the 1st respondent.

Accordingly, the points in limine are all dismissed and the application will be considered on its merits.







Coghlan & Welsh, applicant's legal practitioners

Joel Pincus, Konson & Wolhuter, 1st respondent's legal practitioners

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