This matter was placed before me as an urgent chamber application having been filed on the 23rd of February 2021. Upon receipt, I gave directions for the filing of notices of opposition and opposing affidavits as well as heads of argument.

The second respondent did not file a notice of opposition, and, as a result, the court took it that he will abide by the decision rendered.

The applicants, through the urgent chamber application, seek an interdict, and, on the return date, a review.

Ordinarily, an application for review should be filed separately, but, given the prevailing COVID lockdown and Practice Direction Number 4, under which ordinary applications were not accepted for filing, I accepted the urgent application hence gave directives.

Let me hasten to say, that, this case is peculiar and should not be viewed as setting a precedent that review applications can be commenced through an urgent chamber application.

The first to the third applicants are, respectively, sister, father, and sister of one Genius Kadungure who passed away on the 8th of November 2020 (hereinafter the deceased).

The factual background to the application can be summarised as follows:

The deceased was a well to do person who had business interests in Zimbabwe, Botswana, and South Africa. The first respondent approached the family of the applicants, at the funeral, with a document that she purported was a Will of the deceased though it was not signed. Using undue influence, the applicants accepted the document as the last will and testament of the deceased and recommended the appointment of the first respondent as the executrix of the estate of the deceased.

The first respondent dissuaded the applicants from seeking legal advice indicating that she was also their lawyer.

The second respondent accepted the document as the last Will and testament of the deceased in terms of the Wills Act and also appointed the first respondent as the executor. This was followed by the issuance of Letters of Administration to the first respondent dated the first of December 2020.

The applicants reluctantly worked with the first respondent though they had questions over the will - a copy of which was never furnished to them.

After seeking legal advice, they approached the first respondent who refused to furnish them with a copy of the Will and minutes of a meeting held on the 25th of November 2020. They only managed to obtain copies from the second respondent.

To note is that the Will, which was drafted by the first respondent, confers executorship on her.

She, during the lock down period, attended to disposal of the deceased's Lamborghini motor vehicle in what they term 'hazy' circumstances. This was despite the fact, that, there was no detailed inventory and there was no confirmed distribution account.

FNB Bank in Botswana, where the deceased held an account for his company called Quick Gases (Pvt) Ltd, had extended a loan that had been unpaid since the demise of the deceased. He also left assets in South Africa, in the form of trucks, that were in danger of disappearing if the issues of executorship remained unresolved.

The first respondent had, on the 5th of February 2021, advertised an interim distribution account stating, falsely, that such was lying for inspection at the offices of the second respondent. The latter admonished the first respondent over her false claim.

There is litigation in Botswana over the legitimacy of the first respondent's executorship.

The applicants seek an interim interdict prohibiting any administration of the deceased's estate pending the return date upon which a review of the second respondent's decision to appoint the first applicant as the executrix, and to accept the document in question, will be sought.

The grounds for review are framed as illegality/absence of jurisdiction; fraud; speculation; malpractice; and gross irregularity.

The applicants are further concerned by the following acts which cast the authenticity of the Will in doubt:

(i) The haste with which the first respondent seeks to dispose of the Lamborghini without following due process;

(ii) The invitation by the first respondent for members of the public to inspect an estate account when she has already authorised disposal of the said vehicle;

(iii) The Will makes reference to some persons without stating their actual identities;

(iv) The vehicle arrived in Zimbabwe around the 30th of September 2020, and, its inconceivable that the deceased would have a Will drafted bequeathing it to a third party 23 days after its arrival;

(v) The deceased had a large fleet of vehicles and it is surprising that only the Lamborghini was mentioned in the will;

(vi) The first respondent falsely claimed that she is an attorney and she never wanted to avail the Will to the applicants.

The Will is therefore fake and the estate of the deceased should proceed under intestacy.

The matter is urgent and cannot wait because the applicants are the surviving blood relatives of the deceased and have a prima facie right to protect their interests.

The acceptance of the Will is a legal nullity and there is need to stop the first respondent in her tracks. She is already in the process of disposing of some assets of the deceased estate during the lock down period, more specifically, a Lamborghini motor vehicle, using a distribution account that was never availed nor approved by the second respondent.

Quick Gases (Pvt) Ltd, in which the deceased was the sole director, is in danger of being liquidated after F.N.B Bank in Botswana froze the company's bank account.

The applicants have been given up to the 31st of March 2021 to attend to issues relating to the appointment of the first applicant as executrix.

The first applicant is dissipating the deceased's estate to the permanent and irreparable harm of the applicants in circumstances when her appointment as executrix is a nullity; she has not furnished security to the second respondent for due administration of the estate; and she has not furnished the second respondent with a comprehensive inventory.

Waiting to prosecute a review application during the lockdown period without knowing when it will end will prejudice the applicants who are at risk of losing many assets.

The first respondent continues to take the law into her own hands to the detriment of the applicants.

There is no other alternative remedy to protect the rights of the applicants.

There is real risk that the first respondent, in the absence of a court order, will continue to alienate and dispose of the deceased's assets, and, accordingly, only an interdict will protect the rights of the applicants pending the return date.

The second and third applicants deposed to supporting affidavits in support of the first applicant's averments.

They thus seek a provisional order in the following terms:

“TERMS OF THE FINAL ORDER SOUGHT

That you show cause to this Honourable Court why a final order should not be made in the following terms:

1. The application is hereby granted.

2. The provisional order granted in this matter is hereby confirmed.

3. It be and is hereby declared that:

3.1 The document registered with the 2nd respondent on 25 November 2020 under DR. No.1771/20 as the will of the later Genius Kadungure ('the deceased') (who died on 8 November 2020) is null and void; and

3.2 The deceased died intestate.

4. The decision of the 2nd respondent, to register and accept the aforesaid document as the last will for purposes of administration of the estate of the deceased in terms of section 8(5) of the Wills Act (6:06) be and is hereby set aside.

5. The 2nd respondent's appointment of the 1st respondent, on 2 December 2020, as the testamentary executrix of the estate of the deceased, and all acts done by the 1st respondent (personally or by other persons at her direction) under and by virtue of such appointment be and are hereby declared null and void.

6. The letters of administration issued by the 2nd respondent, on 2 December 2020, in favour of the 1st respondent, under DR No.1771/20, appointing her as testamentary executrix, be and are hereby revoked.

7. The 2nd respondent shall convene another meeting to appoint an executor of the estate of the deceased which meeting shall be presided over by an official other than the official who presided over the meeting of the 25th of November 2020 or any of the officials who previously dealt with the estate of the deceased; and

8. The 1st respondent shall bear costs of suit on attorney-client scale (in the event that she opposes the application).

Pending the return date, the applicants are hereby granted the following interim relief:

1. Pending the return date, the 1st respondent is hereby interdicted from, in any way, administering, or dealing in the estate of Genius Kadungure ('the deceased') in Zimbabwe, Botswana or South Africa; and

2. The 2nd respondent, or any other person acting on his behalf, be and is hereby interdicted from (without the leave of this court) accepting for filing any document by, or acceding to any request from, the 1st respondent under DR. No.1771/20 save and except for the purposes of relinquishing the letters of administration issued hereunder.”

The first respondent strenuously opposes the application and raises several points in limine as follows:

(1) The matter is not urgent because the facts complained of have existed for 4 months and 8 days. The applicants voluntarily consented to the decision by the second respondent to accept a document that did not meet all the formalities of a will on the 25th of November 2020. In terms of the Wills Act, they had 30 days within which to appeal against the decision.

(2) The applicants are seeking to interdict conduct outside this court's jurisdiction specifically in Botswana and South Africa.

(3) The interim relief sought is incompetent because the Letters of Administration remain valid and the appointment of the first respondent, as executor, is valid as she has not been removed through an elaborate process set out in the Administration of Estates Act.

(4) The requirements of an interim interdict have not been met; and

(5) There is no competent cause of action.

In my view, points 3, 4 and 5 touch on the merits of the case...,.

On the merits, the first respondent made the following submissions:

The applicants participated fully and were legally represented in the process leading up to the meeting of the 25th of November 2020. They accepted the document freely and voluntarily. They worked well with the first respondent who has thus far managed to compile a comprehensive inventory as well as compiling a second interim liquidation and distribution account. The belated challenge to the Will is to evade or delay payment of estate liabilities.

She denied refusing to give a copy of the Will to the applicants as alleged.

The will was drafted as per the deceased's instructions and he only delayed in signing it. Unfortunately, he met his demise before he could sign.

The Lamborghini motor vehicle has not been disposed of.

Messrs Shomwe-Nyakuedzwa had requested release of the vehicle to their client and were advised to pay the estate liabilities for this particular bequest. This was complied with.

The first respondent initially approved release of the vehicle, but, upon realising that she had not advertised the interim account, she withdrew her consent to the release of the vehicle telephonically. The motor vehicle remains parked at the deceased's residence in Domboshava.

The first respondent explained, at length, the situation prevailing in Botswana including litigation commenced on her behalf - ostensibly to safeguard the interests of the deceased's estate. Contrary to the assertions by the applicants, she is recognised as the executrix in that country.

The applicants have various remedies at their disposal.

They have failed to meet the requirements of the granting of an interim interdict and the application should be dismissed with costs.

In their heads of arguments, the applicants made the following submissions:

The applicants have met all the requirements of an interim interdict. They have a substantial and real interest in the matter. The first respondent did not furnish the second respondent with monetary security for due administration of the estate. She unlawfully has accepted payment of liabilities for the estate based on an unconfirmed estate account. She has invited people to view an estate account in instances where she has not lodged any distribution account with the second respondent. The Will does not mention the name of Nomatter Zinyengere to whom the Lamborghini was bequeathed. The deceased's company, Quick Gases (Pvt) Ltd, in Botswana, is losing its market value.

The balance of convenience favours the applicants.

The second respondent admonished the first respondent over her behaviour but she has not done anything, especially in relation to the motor vehicle and the advertisements of the estate account in the Government Gazette and a newspaper. The law does not permit the first respondent to benefit from the estate, through appointment as an executor, in instances where she authored the Will.

The first respondent made the following submissions on the merits in her heads of argument:

The applicants have failed to meet the requirements for the granting of an interim interdict. The first respondent was lawfully appointed as executor with the consent of the applicants. The applicants did not appeal against the decision of the second respondent in accepting the unsigned document as a Will. There is no irreparable harm suffered because the Lamborghini motor vehicle is safely parked in Domboshava where the deceased used to reside. There is no evidence that the first respondent is disposing of assets of the estate. The applicants have not made a formal complaint to the second respondent that would trigger a process to have her removed as executor.

The balance of convenience favours the first respondent who has made significant progress in administering the estate both in Zimbabwe and Botswana.

The applicants have failed to exhaust their domestic remedies.

The well settled requirements for an interim interdict are as follows (see Setlogelo v Setlogelo 1914 AD 221…, which this jurisdiction has religiously followed):

(a) A prima facie right, though open to doubt;

(b) That there is a well-grounded apprehension of irreparable harm to the applicant if the interim relief is not granted and he ultimately succeeds in establishing the right;

(c) The balance of convenience favours the granting of interim relief; and

(d) That the applicant has no other satisfactory remedy.

See also Cool v Minister of Justice 1955 (2) SA 682 (C)…,..

I find myself in a dilemma that courts often face in dealing with interim interdict applications. I am referring here to the danger of touching on the merits of a case that may unduly influence the outcome of the final order proceedings should the provisional order be granted.

I find comfort, however, in the fact that the right referred to is prima facie only.

I also take a cue from the decision in Document Support Centre (Pvt) Ltd v Mapuvire 2006 (2) 240 (H) in which MAKARAU J…, stated as follows:

“Without attempting to classify the causes of action that are incapable of redress by way of urgent application, it appears to me that the nature of the cause of action and the relief sought are important considerations in granting or denying urgent applications. It is therefore inevitable that the merits of the final order sought be considered.

It is my considered view, that, the basis of the whole matter revolves around the crucial issue of the acceptance of a document that did not meet all the formalities as specified in section 8(1)(a-d) of the Wills Act as the will of the deceased. These are writing, signing, and attestation.

Section 8(5) therefore becomes an exception to the norm in that it gives the 2nd respondent, the power to accept a document that does not meet some of the formalities.

That section, in my view, seeks to create a balance between being overly rigorous to the extent that it may prejudice beneficiaries in instances where it is clear that indeed the deceased wanted their estate to be dealt with in a particular manner but failed to comply fully with section 8(1) AND potential fraudulent documents being touted as wills: see Janda v Janda 1995 (1) ZLR 375 (S) and Mhango v Gunda HH147-2000.

Section 11 of the Administration of Estates Act [Chapter 6:01] allows the transmission of a purported will or codicil or other testamentary instrument to the second respondent or their assistant. That is why it is critical to conduct the two rung inquiry before accepting a document that does not meet all the formalities as a last will and testament: see Mujuru N.O. and Ors v The Master and Others HH112-08.”

The applicants have outlined the basis upon which they believe that the document presented is fake and should be nullified. They cannot be said to lack a cause of action. They have explained the circumstances that led them to go along with the document. The first respondent has also explained, in detail, circumstances surrounding the preparation and presentation of the document.

The acceptance of any document that does not meet all the requirements is not a walk in the park.

In my view, there are prima facie red flags in the document itself, processes, and manner leading to the acceptance of the document as a will that may result in a court sitting on review making a finding in favour of the applicants.

This is what I would refer to as 'live' issues that need to be considered.

The applicants, in other words, have a reasonably arguable case, prima facie, on review.

The question on review, in my view, must revolve around the circumstances leading to the writing of the document and whether or not a proper inquiry was conducted and the authenticity of the document. This must, of necessity, include the contents of the document itself.

The whole basis of the inquiry is to arrive at the truth and rule out fraud.

If the court, on the return date, finds in favour of the applicants, it follows that the deceased's estate must be wound up on the basis of intestate succession. If not, the document will continue standing as a Will of the deceased.

The first respondent, by her own admission, jumped the gun in authorising release of a Lamborghini in the absence of a proper liquidation and distribution account. In paragraph 13.2 of her opposing affidavit she takes full responsibility for her error.

The immediate question that arises is: what is the urgency that warrants dealing with the estate in a piecemeal manner - especially in the absence of a confirmed distribution account?

What influenced the first respondent to initially, as she claims, authorise the release of the vehicle and then turn around and say, without providing proof, that she then changed her mind?

The second respondent also took her to task over the manner in which she was administering the estate – see page 36 of the first applicant's founding affidavit being a letter from the second respondent. Part of the letter reads as follows;

“having gone through the file, we wish to advise that we have no interim account in the deceased estate record. Neither have we issued any document authorizing distribution of the estate to any individual at this stage.”

And yet, the first respondent went on to advertise the estate account as lying for inspection.

According to the applicants, the estate has liabilities, and, it is trite that an estate consists of assets and liabilities. A beneficiary only has a mere hope that the liabilities do not outweigh assets since they are supposed to be paid off first. That is why the law allows beneficiaries, in a co-ordinated manner, to contribute toward liabilities should they wish to preserve the value of the estate. This is in instances where liabilities outweigh assets.

In my view, the applicants cannot be faulted for holding the view that irreparable harm may result from the conduct of the first respondent.

Their apprehension in the face of the first respondent's admitted conduct is valid.

The unfiled second interim and distribution account and the un-filed executor's inventory reveals that there are many assets as well as liabilities in the estate.

Although, at law, a company is a separate legal persona, a deceased's shareholding in a company constitutes an asset.

Nothing is said in the two documents attached as annexure INV 4, by the first respondent, to her opposing affidavit relating to the companies or the trucks that are said to be in South Africa.

The estate of the deceased spans across three countries and there are different laws and processes in relation to the administration of deceased estates of a foreigner. That, by itself, may entail external conflict of laws.

The balance of convenience, in my view, favours the applicants who are beneficiaries.

Even if the court finds, on the return date, that, the document should be taken as a Will, their rights must be protected.

Contrary to the assertions by the first respondent, that the applicants should have appealed, the conduct complained of can only be addressed though a review and not an appeal.

The applicants have, therefore, in my view, satisfied the requirements for the granting of an interim interdict.

On costs, I do not see anything warranting the award of costs at this interim stage.

I am also mindful of the fact that a provisional order can be varied as long as it does not depart from the gist of the application.

The applicants have stated, that, they have been given up to the 31st of March 2021 by FNB Botswana to sort out the issues in relation to the first respondent's executorship. As stated already there is pending litigation in Botswana, by the first respondent, seeking, inter alia, that she be declared the legally nominated executor in the estate of the deceased.

This may entail having the return date expedited.

For the avoidance of doubt, the provisional order is granted with the interim relief varied as follows:

1. The first respondent be and is hereby interdicted from administering the estate of the late Genius Kadungure under DR No.1771/20.

2. The second respondent be and is hereby interdicted from accepting any process in relation to the administration of the estate of the late Genius Kadungure under DR No.1771/20 filed by or on behalf of the first respondent.

3. The first respondent be and is hereby interdicted from presenting the Letters of Administration issued to her in Zimbabwe under DR No.1771/20 to the Master of the High Court in the Republic of South Africa for purposes of the administration of the deceased's estate in relation to assets in that country.

4. The Registrar of the High Court of Zimbabwe at Harare is directed to expedite the return date hearing. The Registrar is directed to bring this judgment to the attention of the second respondent.

The issue of interest on the money paid by the appellant following its admission at the pretrial conference resolves itself upon reference to the Statement of Agreed Facts. I have quoted the part wherein the parties invited the court to determine interest.

In any event, a claim for interest on the whole amount claimed was pleaded and was prayed for. The appellant made a partial admission.

The court a quo was correct to grant interest on the sum of $84,827=17 which was paid without interest.

After hearing argument by counsel, I granted an order in terms of the draft order attached to the application.

These are my reasons. I undertook to furnish them.

This is an application for amendment of the plea filed in the main matter, HC6655/15. That matter had actually been enrolled on the continuous roll for trial.

On 24 January 2018, my sister DUBE J granted an order removing the main matter from the roll. Paragraph 2 of her order went further to provide, that, the applicant was to make an application to withdraw admissions and then to enroll the matter. The applicant was also ordered to pay the wasted costs.

The applicant was the defendant in the main matter. It had pleaded that the respondent (plaintiff in the main matter) had performed all its obligations in terms of the four contracts entered into between the parties at the time the applicant wrote to the respondent. In that letter, the applicant instructed the respondent to stop any further contractual work.

The plea was therefore an admission.

The admission was repeated subsequent thereto - including in the Joint Pre-Trial Conference Minute. The pretrial conference was presided over by a judge of this court. So, the admission was repeated before that judge.

The applicant's plea was actually that the amounts claimed were no longer recoverable by dint of the prescription of the cause of action.

That special plea was withdrawn on the same date that the applicant indicated that the admissions were made in error and the applicant wanted to amend its plea.

The amendment sought was simply that the respondent had not yet completed carrying out the work that had been agreed to in terms of the contract when the applicant wrote to it to stop any further work. Consequently, so the applicant wants to aver, the respondent is not entitled to any further payment beyond the amounts already paid.

As preliminary point one, the respondent says this application should have been brought as a court application and not a chamber application.

There is sufficient evidence in the Rules, statutes, and decided cases, that, it is competent to institute a chamber application for amendment of pleadings.

The application can also be made as a court application, and, in my view, viva voce in court without being predicated on any written application.

Firstly, Order 20 of the High Court Rules 1971 deals with amendment of pleadings and matters arising pending action. It is so headed.

Rule 132 of the High Court Rules reads:

“132. Court may allow amendment of pleading

Subject to Rule 134 and Rule 151, failing consent by all parties, the court or a judge may, at any stage of the proceedings, allow either party to alter or amend his pleading in such manner and on such terms as may be just, and all such amendments shall be made as may be necessary for the purpose of determining the real question in controversy between the parties.”…,.

Secondly, Rule 189 of the High Court Rules 1971 reads:

“189 Withdrawal of Admission

The court may, at any time, allow any party to amend or withdraw any admission so made on such terms as may be just.”…,.

Thirdly, the proviso to section 36 of the Civil Evidence Act [Chapter 8:01] is relevant. I will set out section 36(1), (3) and that proviso. They provide as follows:

“An admission as to any fact in issue in civil proceedings made by or on behalf of a party to the proceedings shall be admissible as proof of that fact, whether the admission was made orally or in writing or otherwise.

(2)…,.

(3) It shall not be necessary for any party to civil proceedings to disprove any fact admitted on the record of proceedings:
Provided that this subsection shall not prevent any such admission being withdrawn with leave of the court….,.”

Further, Order 1 of the High Court Rules 1971 deals with application of the Rules and interpretation of some of the terms used therein. In the definition section, the following is found;

“3. Definitions

In these rules – 'Judge' means a judge of the court, sitting otherwise that in open court.”

When one reads this definition of a judge in tandem with Order 20 Rule 132, it is clear that there is nothing unprocedural in seeking amendment of pleadings through a chamber application.

It is unnecessary that l go on to quote Rule 226(2)(c) of the Rules.

It is sufficient that l record that l agree with counsel for the applicant, that, an application for leave to amend pleadings seeks procedural relief. It is precisely the remedy which should be sought through a chamber application as provided for in Rule 226(2)(c) of the High Court Rules.

There is nothing substantive in an order allowing or dismissing an application for amendment of a pleading. Needless to say, the determination which is substantive is that which ensues at the trial. That relates to the main matter.

I do not think that legal practitioners should raise, let alone argue, a procedural issue such as this. It is evidently without merit. It simply contributes to clogging up the High Court roll.

Indeed, even if it were incorrect for the applicant to have filed a chamber application instead of a court application, I was still not going to dismiss the application on that basis in light of the provisions of Rule 229C of the Rules of this court.

Dealing with the proper procedure of amending pleadings after issue of summons, GILLESPIE J stated. in ZFC v Taylor 1999 (1) ZLR 308 (H)…,:

“Failing consent, then, it is necessary to make application for amendment, either to court or a judge in chambers, depending upon the criteria set out in Rule 226. The application must be served upon the opposing party; be supported by affidavit showing good cause; and must be accompanied by a draft order…,.”

I do not wish to unduly lengthen this judgment by embarking upon an analysis of all the provisions of the Rules that l have quoted, section 36 of the Civil Evidence Act [Chapter 8:01] and ZFC v Taylor 1999 (1) ZLR 308 (H).

It is clear that amendments to pleadings, in the absence of consent, can be sought via a chamber or court application. It can also be sought, through the mouth of the legal practitioner, in the absence of any written application, depending on the magnitude of the amendment sought.

I thus dismissed the first preliminary point....,.

I now turn to the merits.

The legal principles applicable in determining an application for amendment of pleadings are settled.

They are set out and analysed in HERBSTEIN and Van WINSEN in the Civil Practice of the High Courts of South Africa 5ed, Vol. 1…,. It is therein acknowledged, that, there is a somewhat different approach where the amendment sought amounts to withdrawal of an admission.

Such an amendment is more difficult to achieve because it involves a change of front by the party seeking the amendment.

A full explanation has to be given to convince the court of the circumstances that led the party to make the admission sought to be withdrawn and substituted with a different position, and why the application for amendment is being made at the stage it is being made and not earlier.

In other words, the court or judge must be satisfied, that, what is before it or him is a bona fide application for amendment.

The court also considers whether the other party is likely to be prejudiced were the amendment applied for granted.

If there is likely to be such prejudice, the court considers whether it is such as cannot be cured by an appropriate order of costs or postponement.

The court has the widest possible discretion in dealing with applications for amendment. This is so, because, the underlying purpose of pleadings is to place before a court such pleadings as will facilitate determination of the real question in controversy between the parties.

These principles represent the legal position in our jurisdiction.

I refer in this regard to the following matters, namely, DD Transport (Pvt) Ltd v Abbot 1988 (2) ZLR 92 (SC); Jayesh Shah v Kingdom Merchant Bank Limited SC04-17; Chimutanda Motor Spares (Pvt) Ltd v Musare and Anor 1994 (1) ZLR 310 (H); and Wayne Parham and Credfin (Private) Limited v Jan Fredrick Kotze HH312-18.

In the present matter, the explanation tendered for having made the admission already referred to was this:

The applicant did not have sufficient documents relating to work carried out in terms of the four contracts at the time that instructions were given to its legal practitioners to draw up the plea and subsequent court process in the main matter.

This was occasioned by the fact, that, summons was issued twelve years after the contracts were entered into.

Employees with knowledge of the facts of the matter had left the employ of the applicant at the time that litigation commenced.

These included the applicant's key witness, Engineer Innocent Masunungure. He had relocated to South Africa.

Annexures 'A' and 'B' to the founding affidavit are letters written by the applicant's legal practitioners to the applicants.

They reveal, that, indeed, the applicant was battling to furnish its legal practitioners with full instructions.

The result was that incorrect instructions were given to the applicant's legal practitioners. On the basis of those incorrect instructions, the plea was drafted and filed. It contained the erroneous admission that the respondent had completed carrying out its obligations in terms of the four contracts at the time that the applicant wrote to it instructing that the respondent stops further work.

This error was discovered after the pre-trial conference was held hence the application for amendment being made at the trial stage.

I was satisfied with that explanation.

I was satisfied with the bona fides of the application for amendment.

I was satisfied that no injustice or prejudice would be visited upon the respondent by my granting of the application.

This was so because my reading of the opposing papers clearly shows, that, the respondent had all the evidence it believed would refute the applicant's position in the event that the application for amendment were granted.

The opposing papers clearly replicated, in anticipation, to the applicant's draft amended plea. That draft was attached to the draft order.

The opposing papers did not end there.

An interpretation was attached to correspondence entered into between the parties. The letters were attached to the founding affidavit.

I was asked to find, that, the correspondence meant that the respondent had finished carrying out the work in terms of the four contracts by the time that the letter to stop further work was written to the respondent.

Further documents were attached to the opposing affidavits.

On the basis of all the documents, I was invited to find, as a fact, that, the respondent had indeed finished carrying out all the work in terms of the four contracts at the time the letter to stop further work was written.

In the answering affidavit, the applicant contended, that, the documents confirmed the applicant's position that the work had not been completed when the written instruction was given to stop further work.

The work in question is technical.

Because I was not presiding over the main matter, it was unjust for me to find, without the benefit of a trial, that the defendant's admission was the truth and that the draft amended plea contained falsehoods.

I did not consider it correct that I should decide this application on the basis of credibility. Put differently, I did not consider it correct that I should conduct a “trial on affidavits.” The merits of the main matter were debated in the affidavits.

I declined the invitation to, in effect, usurp the functions of the trial court.

I was satisfied, that, the amendment sought raised a triable issue. It sought to place, before the trial court, the real question in controversy between the parties.

These are the reasons why, at the end of the hearing, I ordered that:

1. Leave be and is hereby granted to allow the applicant to withdraw the admissions made by the applicant in paragraphs 14, 17, 19 and 20 of the defendant's plea which was filed by the applicant in case number HC6655/15 on 10 September 2015.

2. Leave be and is hereby granted allowing the applicant to withdraw the admission contained in the first paragraph of clause 8.3 of the “Joint Pre Trial Conference Minute” signed by the parties on 29 September 2016 and filed at Court in case No. HC6655/15 on 28 October 2016.

3. Leave be and is hereby granted allowing the applicant to amend the defendant's plea filed of record on 10 September 2015 in case number HC6655/15 and the defendant's Notice of Amendment filed of record in case number 6655/15 on 21 January 2016 in the following respects;

(a) By expunging, deleting, and removing from the record, the defendant's plea filed of record in case number HC6655/15 on 10 September 2015.

(b) By expunging, deleting, and removing from the record, the defendant's Notice of Amendment filed of record in case number HC6655/15 on 21 January 2016.

(c) By substituting and replacing the pleadings referred to in clause 3(a) and 3(b) of this order with annexure “K” attached to the application.

4. Leave be and is hereby granted allowing applicant to file, in case number HC6655/15, an Amended Defendant's Plea in the form of Annexure “K” attached to the application within 7 days from the granting of this order, and, upon such filing, the amended plea, in the form of Annexure “K” shall for all intents and purposes, be deemed to be the defendant's plea for case number HC6655/15.

5. There be no order as to costs.

This is an appeal and cross-appeal against parts of the judgment of the High Court dated 4 September 2014 granting a decree of divorce and ancillary relief for and against the appellant (the plaintiff in the court a quo and the appellant in this appeal) and the cross-appellant (the defendant in the court a quo and first respondent in this appeal).

The facts of the case can be summarised as follows:

On 1 September 1990, the appellant and the first respondent were married in terms of the then Marriages Act [Chapter 37].

During the subsistence of the marriage, the parties were blessed with three children, namely, Murray John Coumbis, who was already an adult at the commencement of divorce proceedings, and the twins, Julian Ronald Coumbis and Anton Phillip Coumbis. Julian and Anton were minors when divorce proceedings were instituted.

They are now adults, but, Julian remains a perpetual minor on account of his mental incapacity.

On 5 August 2010, the appellant instituted divorce proceedings against the first respondent. As Julian and Anton were minors, the appellant claimed their custody and maintenance. She also claimed personal maintenance and a share of the assets of the parties.

The appellant also claimed €10,400 from the respondent which she had advanced as a loan to Stir Crazy (Pvt) Ltd, a family business. She contended that the money was part of her inheritance. She claimed to have loaned it to the first respondent through Stir Crazy (Pvt) Ltd. She claimed the money from him alleging that the aforementioned company was an alter ego of the first respondent.

The first respondent opposed the appellant's claims and made a claim in reconvention wherein he claimed the custody of the minor children and their maintenance. He contested the appellant's claim for personal maintenance and matrimonial property. He alleged that some of the properties claimed by the appellant did not form part of their matrimonial estate.

The matter proceeded to a joint pre-trial conference where the following issues were identified and referred to trial:

“(a) The custody of Julian and Anton;

(b) What amount of maintenance was to be paid to the plaintiff if custody is awarded to her;

(c) Whether the plaintiff could be awarded the right to reside in the matrimonial home until both children became self-supporting;

(d) Whether the defendant was obliged to pay personal maintenance to the plaintiff;

(e) Which properties constituted the matrimonial estate;

(f) What appropriate order the High Court was supposed to make for the sharing of property.”

When the trial commenced, Julian and Anton were no longer minors. However, the parties agreed that Julian was to be treated as a perpetual minor due to his mental incapacity.

The parties claim for custody and maintenance, therefore, only related to Julian.

The parties adduced a lot of documentary evidence to support their respective claims.

During examination-in-chief, the appellant admitted that she had a broken relationship with Julian. She admitted that she had exchanged nasty emails with him. The appellant also admitted to smoking marijuana. The fact that she smokes marijuana was confirmed by Dr Chibanda who pointed out its adverse effect on her health and especially on her recovery from temporal lobe epilepsy.

After hearing the evidence, the judge a quo interviewed Julian in his chambers.

The court a quo found that Julian was closer to the first respondent and took into consideration the fact that the two had been staying together after the parties separation.

It also found, that, the appellant needed to start a new life independent from the first respondent but still needed financial assistance to cushion her from the effects of the divorce.

The court a quo found that the first respondent was dishonest and not credible in respect of evidence relating to the matrimonial estate.

The order granted by the court a quo, quoted verbatim, reads as follows:

“Accordingly, it is ordered as follows:

1. A decree of divorce be and is hereby granted.

2. Custody of the perpetual minor child, Julian Ronald Coumbis, born on 3 July 1994, be and is hereby awarded to the defendant.

3. The plaintiff be and is hereby granted reasonable access rights to the said perpetual minor child which shall be exercised as follows:

3.1 She shall have the right to stay with the said perpetual minor child on alternate weekends.

3.2 She shall have the perpetual minor child on any other special occasions, including, but not limited to, each alternate Easter holidays and Christmas holidays.

4. The defendant shall solely be responsible for the upkeep of the said perpetual minor child.

5. The defendant shall pay maintenance in respect of the plaintiff in the sum of US$2,000 per month, as per the order granted by the Magistrate's Court, for a period of six (6) months from the date of granting of this order inclusive of the month of September 2014.

5.1 Payments shall be made directly into the plaintiff's Bank Account whose details shall be provided forthwith to the defendant by the plaintiff.

6. The plaintiff is awarded as her sole and exclusive property all household furniture, contents and effects, inclusive of all her personal items and jewellery, at the matrimonial house, No.6 Northwood Rise, Mt Pleasant Harare, excluding the TV set, dinning suite, and lounge suite which are awarded to the defendant.

7. The defendant shall transfer into the plaintiff's name a motor vehicle, Nissan Navara Registration Number ABD 6847, presently being used by the plaintiff, at his sole cost, within thirty (30) days of the grant of this order.

8. The defendant is awarded, as his sole and exclusive property, immovable property known as No.6 Northwood Rise, Mt Pleasant, Harare currently registered in the names of the plaintiff and the defendant.

8.1 The defendant shall transfer, against payment by him of all transfer costs, the said property into his names and the plaintiff shall sign all relevant papers to effect such transfer within 30 days of being requested, failure of which the Sheriff shall sign all the documents.

8.2 The defendant shall be solely responsible for any encumberances, mortgages, or other obligations duly existing or registered by law over the said property.

9. The defendant shall transfer all shares of OPIUM INVESTMENTS (PVT) LTD, a property-owning company whose sole asset is an immovable property known as No.13 Bates Street, Milton Park, Harare to the plaintiff within thirty (30) days of the grant of this order at his cost.

9.1 The defendant shall be solely responsible for any encumberancies or obligations duly existing or duly registered by law over the said property.

9.2 The defendant shall sign all the relevant documents to effect such transfer failure of which the Sheriff is authorised to sign all such documents.

10. The plaintiff is awarded, as her sole and exclusive property, an immovable property known as No.6 Rosefriars, Avondale, Harare.

10.1 The plaintiff shall transfer, against payment by her of all transfer costs, the rights, title, and interest in the said property, No.6 Rosefriars, Avondale Harare.

10.2 The defendant, shall, within thirty (30) days of being requested to, sign all relevant documents to effect such transfer, failure of which the Sheriff is authorized to sign all such documents.

11. The plaintiff's claim for cash, in the sum of US$100,000, be and is hereby dismissed.

12. Absolution from the instance be and is hereby granted in respect of the distribution of the following assets:

(a) 94 Matumi Sands Lonehill (Pty) Ltd.

(b) 112 Matumi Sands, Lonehill (Pty) Ltd.

(c) 182 Shingara (Pty) Ltd.

(f) Theright Investments (Pvt) Ltd.

(g) Stir Crazy (Pvt) Ltd.

(h) Incavat Enterprises (Pvt) Ltd.

(i) Telehic Investments (Pvt) Ltd.

(j) Natsbury Trading (Pvt) Ltd.

(k) Plaintiff's claim of £10,400.

13. The defendant shall bear the costs of suit.”

Aggrieved by parts of the court a quo's decision, the appellant and the first respondent noted the present appeal and cross-appeal respectively.

The appeal involved an appeal and a cross-appeal, but, the cross appeal was withdrawn during the hearing of the appeal.

The appellant's grounds of appeal attack the court a quo's decision on the following issues:

1. Custody and maintenance of Julian, the perpetual minor;

2. Her claim for inheritance money loaned to a company from the respondent;

3. The propriety or otherwise of the decision handed down by the court a quo concerning the distribution of the assets of the parties;

4. Her claim for a lump sum maintenance payment in the sum of US$100,000;

5. The granting of absolution from the instance mero motu by the court a quo at the end of the defence case; and

6. Whether or not the respondent should be heard in view of his contemptuous conduct against proceedings in this Court, the court a quo, and its orders.

In September 2018, the appellant made an application to adduce further evidence to prove that the respondent had, pending the determination of the appeal, interfered with and defied the High Court's orders.

We, in terms of section 22(1)(b)(ii) and (v) of the Supreme Court Act [Chapter 7:13], ordered that the matter be remitted to MAWADZE J (the trial judge), for him to conduct an enquiry into the appellant's allegations and submit a report to us.

On 3 April 2019, after holding an enquiry, in compliance with our order, MAWADZE J submitted to us his report in which he made the following factual findings:

“1(a) The perpetual minor, Julian Ronald Coumbis (born on 3 July 1994), was removed from Zimbabwe by the respondent and taken to South Africa in 2013 well before the judgment of the court on 4 September 2014.

(b) The respondent has not placed any credible evidence before this Court for such conduct.

(c) Julian remains in South Africa to date.

(d) The appellant, Philippa, has not been able to exercise any access rights in respect of Julian (the perpetual minor) as awarded to her in terms of para 3 of this Court's order.

2(a) The respondent sold two immovable properties in South Africa, being No.94 Matumi Sands and No.112 Matumi Sands and transferred them to third parties.

(b) The only available immovable property in South Africa is No.182 Shingara against which the appellant successfully placed a caveat.

3. The respondent removed all movable household goods which had been awarded to the appellant, Philippa, in terms of para 6 of this Court's order from No.6 Northwood Rise, Mt Pleasant, Harare and took them to South Africa without the appellant's knowledge or consent.

The respondent has not explained his conduct.

4. The motor vehicle, a Nissan Navara, Registration Number ABD 6847, awarded to the appellant, Philippa, in terms of para 7 of this Court's order, was taken by the Vehicle Theft Squad as it was deemed to be subject to criminal investigations for which the respondent is allegedly accountable.

5. The respondent has not done anything to remove the encumbrances on immovable properties either awarded to him or the appellant as per this Court's order.

6. After the order of this Court, the respondent transferred about USD$2.8 million from Stir Crazy (Pvt) Ltd to Incavat Enterprises (Pvt) Ltd.

7. The respondent has not complied with the maintenance order granted in favour of the appellant, Phillipa, in terms of para 5 of this Court's order and has not paid a single cent.

8. Lastly, the following assets are still available;

(a) No.6 Northwood Rise, Mt Pleasant, Harare, Zimbabwe but is still encumbered.

(b) Belgravia House, Harare but is still encumbered.

(c) No.6 Rosefrias, Avondale, Harare, Zimbabwe.

(d) No.13 Bates Street, Milton Park, Harare but is still encumbered.

(e) No.182 Shingara in South Africa.”

In submissions before this Court, counsel for the appellant argued, that, the report to the Supreme Court, following due inquiry by MAWADZE J, dated 3 April 2019, confirmed that the first respondent was in contempt of the court a quo's order. He further submitted that such disobedience went to the root of the matter.

Counsel for the appellant further submitted, that, the court a quo's decision, on custody, was influenced by the first respondent's alienation of Julian against the appellant and that the decision does not promote a bond between the appellant and the perpetual minor.

Counsel for the appellant submitted, that, from 4 September 2014 to the last date of the hearing, the appellant had not enjoyed access to the perpetual minor because he had been removed from the jurisdiction of this court. He submitted, that, it was in the best interests of the perpetual minor that he be in the custody of the appellant.

In respect of the court a quo granting the first respondent absolution from the instance mero motu, counsel for the appellant submitted, that, the court a quo erred in view of the fact that the first respondent had made offers which were equivalent to an admission. He also submitted, that, the first respondent had given evidence of his shareholding in some of the companies which could have enabled the court a quo to distribute those shares between the parties.

Counsel for the appellant submitted, that, the distribution of the matrimonial assets was limited to three properties.

He contended that evidence led before the court a quo on these assets established that the assets belonged to companies owned by the parties. He further submitted, that, the properties had been encumbered by the first respondent, and, consequently, the appellant was disabled from acquiring any title in them in spite of their having been awarded to her by the court a quo.

In relation to the appellant's inheritance funds loaned to Stir Crazy (Pvt) Ltd, counsel for the appellant argued, that, the latter, being the respondent's alter ego, they had to be returned to the appellant by the first respondent.

He prayed that the appeal succeeds with costs.

Counsel for the first respondent submitted, that, even though the first respondent had breached the order of the court a quo, he had a right to be heard in terms of section 69 of the Constitution of Zimbabwe 2013 (the Constitution).

Counsel for the first respondent argued, that, it was in the best interest of the perpetual minor that the first respondent be heard.

He contended, that, even if it was found that the first respondent had no right of audience before this court, there were no documents relating to the companies proving that the court a quo was handicapped in making its determination.

Regarding the issue of the court a quo granting absolution from the instance mero motu, counsel for the first respondent argued, that, the court a quo came to that conclusion because there was no evidence on the ownership of the companies as the appellant failed to present it to the court a quo.

In concluding his submissions, counsel for the first respondent submitted, that, the first respondent was withdrawing his cross-appeal.

In response, counsel for the appellant contended, that, the enjoyment of the constitutional right to be heard comes with an obligation to obey court orders. He argued, that, the first respondent is in court to protect something yet he disobeys court orders.

Counsel further argued, that, the court has inherent jurisdiction in terms of section 176 of the Constitution to determine who can or cannot be heard.

He submitted, that, the perpetual minor's best interests remained with the court as the first respondent's contempt dis-entitles him from saying anything that benefits him.

Counsel for the appellant submitted that an Appellate Court does not only deal with the direct dictates of the judgment but also deals with its effects.

By letter dated 31 January 2020, Musekiwa and Associates, Legal Practitioners for Doves Funeral Assurance (Pvt) Ltd, informed the Registrar of this Court that its client had bought a half share of No.6 Northwood Rise, Mt Pleasant, Harare (the matrimonial home) from a sale in execution conducted by the Sheriff and that that half share of the property had been transferred to their client on 20 February 2019.

As a result of this information, which had not been placed before us when we heard the appeal on 23 January 2020, parties were invited to appear before us on 24 June 2020 to give them an opportunity to address us on this issue. At that hearing we granted the following order:

“IT IS ORDERED BY CONSENT THAT:

1. Doves Funeral Assurance be and is hereby joined as a party to these proceedings as 2nd Respondent with Ronald John Coumbis becoming the 1st Respondent.

2. Mr Musekiwa, for Doves Funeral Assurance, is to avail documentation confirming the transfer of the half share in the property to itself and file heads of argument in connection therewith by the 30th June 2020 and serve the same immediately on the appellant and first respondent's legal practitioners.

3. Advocate Mpofu is to file additional heads of argument in response to the heads of argument filed by Doves Funeral Assurance by Friday 3rd July 2020.

4. Mr Ndlovu, for the 1st Respondent, Ronald John Coumbis, is to file his additional heads of argument, if any, by Wednesday 8 July 2020.”

In his additional heads of argument, counsel for the appellant submitted, that, the matrimonial home, which was jointly owned by the appellant and the first respondent, be awarded to the appellant who will thereafter institute proceedings in the High Court to claim back the half share sold to Doves Funeral Assurance (Pvt) Ltd.

He submitted, that, Doves Funeral Assurance (Pvt) Ltd took a risk when it bought the half share without the consent of the appellant.

The first respondent, whose conduct caused the sale of his half share to Doves Funeral Assurance (Pvt) Ltd, did not file additional heads.

In their heads, Musekiwa & Associates, for Doves Funeral Assurance (Pvt) Ltd, submitted, that, it bought the respondent's half share through the Sheriff's sale in execution after due notice had been given to the appellant. They submitted, that, the half share is no longer part of the appellant and first respondent's matrimonial assets and is no longer available for distribution to either of them.

The appellant raised several grounds of appeal, but, the material issues for determination are as follows:

1. Whether or not the first respondent should be heard in view of his contempt of proceedings of the court a quo and its orders and proceedings before this Court.

2. Whether or not the court a quo erred in awarding custody of Julian to the first respondent.

3. Whether or not the court a quo erred in granting absolution from the instance against part of the appellant's claims.

4. Whether or not the appellant is entitled to claim her monetary inheritance from the first respondent.

5. Whether or not the court a quo erred in distributing the immovable property without taking into account the value of the properties.

6. Whether or not the distribution of the immovable property was fair.

7. Whether or not the appellant's claim for a lump sum maintenance payment in the sum of US$100,000 was correctly dismissed....,.

MAWADZE J, in his report subsequent to the remittal of the matter for him to inquire into the first respondent's alleged contempt against its orders, found that the perpetual minor, who the appellant was granted access to, had been removed from Zimbabwe and taken to South Africa, without the appellant's knowledge or consent, resulting in the appellant not being able to exercise her rights of access.

He also found, that, all movable household goods at No.6 Northwood Rise, Mt Pleasant, Harare awarded to the appellant, in terms of paragraph 6 of the court a quo's order, had been removed from the house by the first respondent and taken to South Africa without the appellant's knowledge or consent.

The first respondent did not explain his conduct.

It has also been established, that, a half share of No.6 Northwood Rise, Mount Pleasant the whole of which had been awarded to the first respondent but was one of the issues raised in this appeal, had been sold and transferred to Doves Funeral Assurance (Pvt) Ltd because of the first respondent's indebtedness which led to his half share being sold in execution.

MAWADZE J also found, that, the first respondent had sold two immovable properties in South Africa, being No.94 Matumi Sands Lonehill (Pty) Ltd and No.112 Matumi Sands Lonehill (Pty) Ltd in which he had fifty percent shareholdings in both and that he had thereafter transferred them to third parties without the appellant's knowledge or consent, at a time when their distribution was pending before the court a quo.

The motor vehicle, a Nissan Navara, Registration Number ABD 6847, awarded to the appellant, in terms of paragraph 7 of the court a quo's order, had been taken by the Vehicle Theft Squad as it was deemed to be subject to criminal investigations for which the first respondent was allegedly accountable.

The judge also found, that, the first respondent had not done anything to remove encumbrances from immovable properties awarded to the appellant in terms of the court a quo's order.

He further found, that, the first respondent caused the transfer of USD$2.8 million from Stir Crazy (Pvt) Ltd, a company jointly-owned by the parties, to Incavat (Pvt) Ltd, a company incorporated after the separation of the parties in spite of the pending appeal.

Further, the first respondent had not complied with the Maintenance Order granted in favour of the appellant in terms of paragraph 5 of the court a quo's order.

In light of the first respondent's contemptuous conduct, conceded by his legal practitioner, my considered view is that he has no right to be heard by this Court.

It is settled law, that, a litigant with dirty hands cannot be entertained by the courts. Contempt of court is seriously viewed by the courts and dis-entitles a party from being afforded a hearing by the courts until he or she has purged the contempt.

The first respondent cannot violate a court order, on one hand, and seek relief from the same court on the other. One cannot be allowed to do so with impunity.

It is important to acknowledge the well-known canon, that, the Constitution is the supreme law and that the rule of law is a founding principle of our nation. The quintessence of the rule of law is this, and simply this, that, where there is a law it must be complied with and when courts grant orders they must be obeyed.

The Constitution, under section 164(3), provides as follows:

“An order or decision of a court binds the State and all persons and government institutions and agencies to which it applies, and must be obeyed by them.”…,.

In In Re: Prosecutor-General of Zimbabwe on his constitutional independence and protection from direction and control CC13-17…, the court made the following pertinent remarks:

“The simple fact of the matter is, that, the applicant has not complied with the orders in question and has proffered no explanation whatsoever for such non-compliance. He has, for some reason, seen it fit to disregard court orders; and yet he expects this Court to overlook his wanton and cavalier nonchalance. For the applicant to refuse to obey court orders, and then to avoid answering the critical question as to why he has not, is tantamount to exhibiting flagrant contempt for this Court. This type of contempt in facie curiae cannot be countenanced by the Court. We have a duty to protect our processes from abuse and scandalous impunity.”

The gravity and consequences of such contempt were articulately spelt out in Associated Newspapers of Zimbabwe (Private) Limited v The Minister of State for Information and Publicity in the President's Office & Others SC20-03…, where the court held that:

“The Court will not grant relief to a litigant with dirty hands in the absence of good cause being shown or until such defiance or contempt has been purged….,. This Court is a court of law, and, as such, cannot connive at or condone the applicant's open defiance of the law. Citizens are obliged to obey the law of the land and argue afterwards….,. In the absence of an explanation as to why this course was not followed, the inference of a disdain for the law becomes inescapable.”

In casu, the first respondent has shown a flagrant disregard of court proceedings of the court a quo and this Court. He has not purged his contempt nor explained his conduct.

In respect of some of the terms of the court a quo's orders, he remains in continuous contempt. Such conduct cannot be countenanced by this Court.

It is my considered view, that, he has no right to be heard.

Consequently, the submissions made on his behalf by counsel for the first respondent will be ignored and not be taken into account in determining this appeal.

This is an appeal and cross-appeal against parts of the judgment of the High Court dated 4 September 2014 granting a decree of divorce and ancillary relief for and against the appellant (the plaintiff in the court a quo and the appellant in this appeal) and the cross-appellant (the defendant in the court a quo and first respondent in this appeal).

The facts of the case can be summarised as follows:

On 1 September 1990, the appellant and the first respondent were married in terms of the then Marriages Act [Chapter 37].

During the subsistence of the marriage, the parties were blessed with three children, namely, Murray John Coumbis, who was already an adult at the commencement of divorce proceedings, and the twins, Julian Ronald Coumbis and Anton Phillip Coumbis. Julian and Anton were minors when divorce proceedings were instituted.

They are now adults, but, Julian remains a perpetual minor on account of his mental incapacity.

On 5 August 2010, the appellant instituted divorce proceedings against the first respondent. As Julian and Anton were minors, the appellant claimed their custody and maintenance. She also claimed personal maintenance and a share of the assets of the parties.

The appellant also claimed €10,400 from the respondent which she had advanced as a loan to Stir Crazy (Pvt) Ltd, a family business. She contended that the money was part of her inheritance. She claimed to have loaned it to the first respondent through Stir Crazy (Pvt) Ltd. She claimed the money from him alleging that the aforementioned company was an alter ego of the first respondent.

The first respondent opposed the appellant's claims and made a claim in reconvention wherein he claimed the custody of the minor children and their maintenance. He contested the appellant's claim for personal maintenance and matrimonial property. He alleged that some of the properties claimed by the appellant did not form part of their matrimonial estate.

The matter proceeded to a joint pre-trial conference where the following issues were identified and referred to trial:

“(a) The custody of Julian and Anton;

(b) What amount of maintenance was to be paid to the plaintiff if custody is awarded to her;

(c) Whether the plaintiff could be awarded the right to reside in the matrimonial home until both children became self-supporting;

(d) Whether the defendant was obliged to pay personal maintenance to the plaintiff;

(e) Which properties constituted the matrimonial estate;

(f) What appropriate order the High Court was supposed to make for the sharing of property.”

When the trial commenced, Julian and Anton were no longer minors. However, the parties agreed that Julian was to be treated as a perpetual minor due to his mental incapacity.

The parties claim for custody and maintenance, therefore, only related to Julian.

The parties adduced a lot of documentary evidence to support their respective claims.

During examination-in-chief, the appellant admitted that she had a broken relationship with Julian. She admitted that she had exchanged nasty emails with him. The appellant also admitted to smoking marijuana. The fact that she smokes marijuana was confirmed by Dr Chibanda who pointed out its adverse effect on her health and especially on her recovery from temporal lobe epilepsy.

After hearing the evidence, the judge a quo interviewed Julian in his chambers.

The court a quo found that Julian was closer to the first respondent and took into consideration the fact that the two had been staying together after the parties separation.

It also found, that, the appellant needed to start a new life independent from the first respondent but still needed financial assistance to cushion her from the effects of the divorce.

The court a quo found that the first respondent was dishonest and not credible in respect of evidence relating to the matrimonial estate.

The order granted by the court a quo, quoted verbatim, reads as follows:

“Accordingly, it is ordered as follows:

1. A decree of divorce be and is hereby granted.

2. Custody of the perpetual minor child, Julian Ronald Coumbis, born on 3 July 1994, be and is hereby awarded to the defendant.

3. The plaintiff be and is hereby granted reasonable access rights to the said perpetual minor child which shall be exercised as follows:

3.1 She shall have the right to stay with the said perpetual minor child on alternate weekends.

3.2 She shall have the perpetual minor child on any other special occasions, including, but not limited to, each alternate Easter holidays and Christmas holidays.

4. The defendant shall solely be responsible for the upkeep of the said perpetual minor child.

5. The defendant shall pay maintenance in respect of the plaintiff in the sum of US$2,000 per month, as per the order granted by the Magistrate's Court, for a period of six (6) months from the date of granting of this order inclusive of the month of September 2014.

5.1 Payments shall be made directly into the plaintiff's Bank Account whose details shall be provided forthwith to the defendant by the plaintiff.

6. The plaintiff is awarded as her sole and exclusive property all household furniture, contents and effects, inclusive of all her personal items and jewellery, at the matrimonial house, No.6 Northwood Rise, Mt Pleasant Harare, excluding the TV set, dinning suite, and lounge suite which are awarded to the defendant.

7. The defendant shall transfer into the plaintiff's name a motor vehicle, Nissan Navara Registration Number ABD 6847, presently being used by the plaintiff, at his sole cost, within thirty (30) days of the grant of this order.

8. The defendant is awarded, as his sole and exclusive property, immovable property known as No.6 Northwood Rise, Mt Pleasant, Harare currently registered in the names of the plaintiff and the defendant.

8.1 The defendant shall transfer, against payment by him of all transfer costs, the said property into his names and the plaintiff shall sign all relevant papers to effect such transfer within 30 days of being requested, failure of which the Sheriff shall sign all the documents.

8.2 The defendant shall be solely responsible for any encumberances, mortgages, or other obligations duly existing or registered by law over the said property.

9. The defendant shall transfer all shares of OPIUM INVESTMENTS (PVT) LTD, a property-owning company whose sole asset is an immovable property known as No.13 Bates Street, Milton Park, Harare to the plaintiff within thirty (30) days of the grant of this order at his cost.

9.1 The defendant shall be solely responsible for any encumberancies or obligations duly existing or duly registered by law over the said property.

9.2 The defendant shall sign all the relevant documents to effect such transfer failure of which the Sheriff is authorised to sign all such documents.

10. The plaintiff is awarded, as her sole and exclusive property, an immovable property known as No.6 Rosefriars, Avondale, Harare.

10.1 The plaintiff shall transfer, against payment by her of all transfer costs, the rights, title, and interest in the said property, No.6 Rosefriars, Avondale Harare.

10.2 The defendant, shall, within thirty (30) days of being requested to, sign all relevant documents to effect such transfer, failure of which the Sheriff is authorized to sign all such documents.

11. The plaintiff's claim for cash, in the sum of US$100,000, be and is hereby dismissed.

12. Absolution from the instance be and is hereby granted in respect of the distribution of the following assets:

(a) 94 Matumi Sands Lonehill (Pty) Ltd.

(b) 112 Matumi Sands, Lonehill (Pty) Ltd.

(c) 182 Shingara (Pty) Ltd.

(f) Theright Investments (Pvt) Ltd.

(g) Stir Crazy (Pvt) Ltd.

(h) Incavat Enterprises (Pvt) Ltd.

(i) Telehic Investments (Pvt) Ltd.

(j) Natsbury Trading (Pvt) Ltd.

(k) Plaintiff's claim of £10,400.

13. The defendant shall bear the costs of suit.”

Aggrieved by parts of the court a quo's decision, the appellant and the first respondent noted the present appeal and cross-appeal respectively.

The appeal involved an appeal and a cross-appeal, but, the cross appeal was withdrawn during the hearing of the appeal.

The appellant's grounds of appeal attack the court a quo's decision on the following issues:

1. Custody and maintenance of Julian, the perpetual minor;

2. Her claim for inheritance money loaned to a company from the respondent;

3. The propriety or otherwise of the decision handed down by the court a quo concerning the distribution of the assets of the parties;

4. Her claim for a lump sum maintenance payment in the sum of US$100,000;

5. The granting of absolution from the instance mero motu by the court a quo at the end of the defence case; and

6. Whether or not the respondent should be heard in view of his contemptuous conduct against proceedings in this Court, the court a quo, and its orders.

In September 2018, the appellant made an application to adduce further evidence to prove that the respondent had, pending the determination of the appeal, interfered with and defied the High Court's orders.

We, in terms of section 22(1)(b)(ii) and (v) of the Supreme Court Act [Chapter 7:13], ordered that the matter be remitted to MAWADZE J (the trial judge), for him to conduct an enquiry into the appellant's allegations and submit a report to us.

On 3 April 2019, after holding an enquiry, in compliance with our order, MAWADZE J submitted to us his report in which he made the following factual findings:

“1(a) The perpetual minor, Julian Ronald Coumbis (born on 3 July 1994), was removed from Zimbabwe by the respondent and taken to South Africa in 2013 well before the judgment of the court on 4 September 2014.

(b) The respondent has not placed any credible evidence before this Court for such conduct.

(c) Julian remains in South Africa to date.

(d) The appellant, Philippa, has not been able to exercise any access rights in respect of Julian (the perpetual minor) as awarded to her in terms of para 3 of this Court's order.

2(a) The respondent sold two immovable properties in South Africa, being No.94 Matumi Sands and No.112 Matumi Sands and transferred them to third parties.

(b) The only available immovable property in South Africa is No.182 Shingara against which the appellant successfully placed a caveat.

3. The respondent removed all movable household goods which had been awarded to the appellant, Philippa, in terms of para 6 of this Court's order from No.6 Northwood Rise, Mt Pleasant, Harare and took them to South Africa without the appellant's knowledge or consent.

The respondent has not explained his conduct.

4. The motor vehicle, a Nissan Navara, Registration Number ABD 6847, awarded to the appellant, Philippa, in terms of para 7 of this Court's order, was taken by the Vehicle Theft Squad as it was deemed to be subject to criminal investigations for which the respondent is allegedly accountable.

5. The respondent has not done anything to remove the encumbrances on immovable properties either awarded to him or the appellant as per this Court's order.

6. After the order of this Court, the respondent transferred about USD$2.8 million from Stir Crazy (Pvt) Ltd to Incavat Enterprises (Pvt) Ltd.

7. The respondent has not complied with the maintenance order granted in favour of the appellant, Phillipa, in terms of para 5 of this Court's order and has not paid a single cent.

8. Lastly, the following assets are still available;

(a) No.6 Northwood Rise, Mt Pleasant, Harare, Zimbabwe but is still encumbered.

(b) Belgravia House, Harare but is still encumbered.

(c) No.6 Rosefrias, Avondale, Harare, Zimbabwe.

(d) No.13 Bates Street, Milton Park, Harare but is still encumbered.

(e) No.182 Shingara in South Africa.”

In submissions before this Court, counsel for the appellant argued, that, the report to the Supreme Court, following due inquiry by MAWADZE J, dated 3 April 2019, confirmed that the first respondent was in contempt of the court a quo's order. He further submitted that such disobedience went to the root of the matter.

Counsel for the appellant further submitted, that, the court a quo's decision, on custody, was influenced by the first respondent's alienation of Julian against the appellant and that the decision does not promote a bond between the appellant and the perpetual minor.

Counsel for the appellant submitted, that, from 4 September 2014 to the last date of the hearing, the appellant had not enjoyed access to the perpetual minor because he had been removed from the jurisdiction of this court. He submitted, that, it was in the best interests of the perpetual minor that he be in the custody of the appellant.

In respect of the court a quo granting the first respondent absolution from the instance mero motu, counsel for the appellant submitted, that, the court a quo erred in view of the fact that the first respondent had made offers which were equivalent to an admission. He also submitted, that, the first respondent had given evidence of his shareholding in some of the companies which could have enabled the court a quo to distribute those shares between the parties.

Counsel for the appellant submitted, that, the distribution of the matrimonial assets was limited to three properties.

He contended that evidence led before the court a quo on these assets established that the assets belonged to companies owned by the parties. He further submitted, that, the properties had been encumbered by the first respondent, and, consequently, the appellant was disabled from acquiring any title in them in spite of their having been awarded to her by the court a quo.

In relation to the appellant's inheritance funds loaned to Stir Crazy (Pvt) Ltd, counsel for the appellant argued, that, the latter, being the respondent's alter ego, they had to be returned to the appellant by the first respondent.

He prayed that the appeal succeeds with costs.

Counsel for the first respondent submitted, that, even though the first respondent had breached the order of the court a quo, he had a right to be heard in terms of section 69 of the Constitution of Zimbabwe 2013 (the Constitution).

Counsel for the first respondent argued, that, it was in the best interest of the perpetual minor that the first respondent be heard.

He contended, that, even if it was found that the first respondent had no right of audience before this court, there were no documents relating to the companies proving that the court a quo was handicapped in making its determination.

Regarding the issue of the court a quo granting absolution from the instance mero motu, counsel for the first respondent argued, that, the court a quo came to that conclusion because there was no evidence on the ownership of the companies as the appellant failed to present it to the court a quo.

In concluding his submissions, counsel for the first respondent submitted, that, the first respondent was withdrawing his cross-appeal.

In response, counsel for the appellant contended, that, the enjoyment of the constitutional right to be heard comes with an obligation to obey court orders. He argued, that, the first respondent is in court to protect something yet he disobeys court orders.

Counsel further argued, that, the court has inherent jurisdiction in terms of section 176 of the Constitution to determine who can or cannot be heard.

He submitted, that, the perpetual minor's best interests remained with the court as the first respondent's contempt dis-entitles him from saying anything that benefits him.

Counsel for the appellant submitted that an Appellate Court does not only deal with the direct dictates of the judgment but also deals with its effects.

By letter dated 31 January 2020, Musekiwa and Associates, Legal Practitioners for Doves Funeral Assurance (Pvt) Ltd, informed the Registrar of this Court that its client had bought a half share of No.6 Northwood Rise, Mt Pleasant, Harare (the matrimonial home) from a sale in execution conducted by the Sheriff and that that half share of the property had been transferred to their client on 20 February 2019.

As a result of this information, which had not been placed before us when we heard the appeal on 23 January 2020, parties were invited to appear before us on 24 June 2020 to give them an opportunity to address us on this issue. At that hearing we granted the following order:

“IT IS ORDERED BY CONSENT THAT:

1. Doves Funeral Assurance be and is hereby joined as a party to these proceedings as 2nd Respondent with Ronald John Coumbis becoming the 1st Respondent.

2. Mr Musekiwa, for Doves Funeral Assurance, is to avail documentation confirming the transfer of the half share in the property to itself and file heads of argument in connection therewith by the 30th June 2020 and serve the same immediately on the appellant and first respondent's legal practitioners.

3. Advocate Mpofu is to file additional heads of argument in response to the heads of argument filed by Doves Funeral Assurance by Friday 3rd July 2020.

4. Mr Ndlovu, for the 1st Respondent, Ronald John Coumbis, is to file his additional heads of argument, if any, by Wednesday 8 July 2020.”

In his additional heads of argument, counsel for the appellant submitted, that, the matrimonial home, which was jointly owned by the appellant and the first respondent, be awarded to the appellant who will thereafter institute proceedings in the High Court to claim back the half share sold to Doves Funeral Assurance (Pvt) Ltd.

He submitted, that, Doves Funeral Assurance (Pvt) Ltd took a risk when it bought the half share without the consent of the appellant.

The first respondent, whose conduct caused the sale of his half share to Doves Funeral Assurance (Pvt) Ltd, did not file additional heads.

In their heads, Musekiwa & Associates, for Doves Funeral Assurance (Pvt) Ltd, submitted, that, it bought the respondent's half share through the Sheriff's sale in execution after due notice had been given to the appellant. They submitted, that, the half share is no longer part of the appellant and first respondent's matrimonial assets and is no longer available for distribution to either of them.

The appellant raised several grounds of appeal, but, the material issues for determination are as follows:

1. Whether or not the first respondent should be heard in view of his contempt of proceedings of the court a quo and its orders and proceedings before this Court.

2. Whether or not the court a quo erred in awarding custody of Julian to the first respondent.

3. Whether or not the court a quo erred in granting absolution from the instance against part of the appellant's claims.

4. Whether or not the appellant is entitled to claim her monetary inheritance from the first respondent.

5. Whether or not the court a quo erred in distributing the immovable property without taking into account the value of the properties.

6. Whether or not the distribution of the immovable property was fair.

7. Whether or not the appellant's claim for a lump sum maintenance payment in the sum of US$100,000 was correctly dismissed....,.

The court a quo granted custody of the perpetual minor to the first respondent. The appellant's complaint, on appeal, was that custody ought to have been awarded to her.

It is trite, that, the awarding of custody of a minor to either of the parents by a court is governed by the best interests of the minor. Therefore, the parent who will be granted custody must satisfy the requirements of the best interests of the child.

Section 81(2) of the Constitution has codified this position and provides, that, in every matter concerning a child, it is the child's best interests that are paramount and that minor children are entitled to protection of the courts, particularly by the High Court as the upper guardian of the rights of children.

Section 81(2) and (3) of the Constitution reads:

“(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.”

This position was aptly illustrated in Mackintosh (Nee Parkinson) v Mackintosh SC37-18…, where this court held that:

“A court, such as the court a quo, must always keep in mind that the interests of the minor children are always paramount. In considering those interests, the court should not allow itself to be misled by the appearances that the parties give. It must, in addition to any evidence given, be guided by its own experiences and sense of what is fair….,.”

CRETNEY SM on Principles of Family Law, (Third Edition, Sweet & Maxwell, London, 1979) cited with approval in Mackintosh (Nee Parkinson) v Mackintosh SC37-18 …, states…, that:

“It has traditionally been stressed, that, the law is not that the welfare of the child is the sole consideration. There may, for instance, be cases where the public interest overrides the welfare of a particular child. But, the requirement to treat the child's welfare as the 'first and paramount' consideration means 'more than that [it] is to be treated as the top item in a list of items relevant to the matter in question. [The words] connote a process whereby, when all the relevant facts, relationships, claims, and wishes of parents, risks, choices, and other circumstances are taken into account and weighed, the course to be followed will be that which is most in the interests of the child's welfare as that term has now to be understood. That is the first consideration because it is of first importance and the paramount consideration because it rules upon or determines the course to be followed.”

In McCall v McCall 1994 (3) SA 201 (C)…, the court provided a guideline which can be used in determining the best interests of the child. It is not exhaustive but covers many factors which have been considered in many jurisdictions. It remarked thus:

“In determining what is in the best interests of the child, the Court must decide which of the parents is better able to promote and ensure his physical, moral, emotional, and spiritual welfare. This can be assessed by reference to certain factors or criteria which are set out hereunder, not in order of importance, and also bearing in mind that there is a measure of unavoidable overlapping and that some of the listed criteria may differ only as to nuance. The criteria are the following:

(a) The love, affection, and other emotional ties which exist between parent and child and the parent's compatibility with the child;

(b) The capabilities, character, and temperament of the parent and the impact thereof on the child's needs and desires;

(c) The ability of the parent to communicate with the child and the parent's insight into, understanding of, and sensitivity to the child's feelings;

(d) The capacity and disposition of the parent to give the child the guidance which he requires;

(e) The ability of the parent to provide for the basic physical needs of the child, the so-called 'creature comforts' such as food, clothing, housing, and the other material needs - generally speaking, the provision of economic security;

(f) The ability of the parent to provide for the educational well-being and security of the child, both religious and secular;

(g) The ability of the parent to provide for the child's emotional, psychological, cultural, and environmental development;

(h) The mental and physical health and moral fitness of the parent;

(i) The stability or otherwise of the child's existing environment, having regard to the desirability of maintaining the status quo;

(j) The desirability or otherwise of keeping siblings together;

(k) The child's preference, if the Court is satisfied, that, in the particular circumstances, the child's preference should be taken into consideration;

(l) The desirability or otherwise of applying the doctrine of same-sex matching; and

(m) Any other factor which is relevant to the particular case with which the Court is concerned.”

The court a quo took into account the strained relationship between the appellant and the perpetual minor, evident from emails exchanged between them.

On the same note, the appellant also confessed that there was friction between her and the perpetual minor.

There is therefore no compatibility between the appellant and the perpetual minor.

It would therefore be against the best interests of the perpertual minor to place him in the custody of a parent with whom he has a hostile relationship.

The applicant and the third respondent divorced on 16 January 2014 in Case No. HC7328/13.

In terms of a consent paper concluded on 14 November 2013, which became part of the divorce order of 16 January 2014, the applicant and the third respondent agreed to give their matrimonial home, Stand No.17074 Giraffe Crescent, Borrowdale West, Harare to their two minor children in equal shares.

Paragraph E.5 of the Consent Paper stated as follows:

“E. Division of Matrimonial Property

5. Stand No.17074 Giraffe Crescent, Borrowdale West, Harare shall be awarded to the two minor children in equal shares. The property shall be transferred and registered in the said minor children's names within one year of the order. The parties shall sign all relevant papers to effect transfer to the minor children, failing which, the Sheriff Harare shall sign all such papers as if it were the plaintiff and defendant. The plaintiff shall pay the cost of the transfer. In addition, the defendant shall exercise the rights (usufruct) of use and occupation until she dies or remarries whichever occurs sooner.”

Stand No.17074 Giraffe Crescent was not transferred and registered in the children's names within one year, contrary to what was ordered by the court.

The court was not told of any steps which were taken by the applicant and the third respondent towards complying with the Divorce Order.

It also appears, that, the Sheriff, who was supposed to sign all the papers, for purposes of transfer and registration, if the applicant and the third respondent failed to do so, was never approached.

The property thus remained in the third respondent's name, in contravention of the divorce order.

It is common cause, that, in August, 2015, the above property was attached by the first respondent in order to satisfy a debt by the second respondent where the third respondent had signed as surety.

The applicant says she became aware of the attachment on 21 August 2015. On 2 September 2015 the applicant filed an urgent chamber application for stay of execution of the writ of attachment.

There was a delay of more than 10 days from the date of the attachment to the date of filing of the urgent application. That delay is not explained, contrary to case authorities which indicate that any delay in approaching the court urgently should be explained since an applicant in an urgent application should herself treat the matter urgently.

The first respondent opposed the urgent application....,.

I will..., proceed to consider the merits of the application.

The court order of 16 January 2014 said Stand 17074 Giraffe Crescent was to be transferred and registered in the minor children's names within one year of the divorce order….,.

This time limit was put to protect the interests of the minor children by ensuring a speedy transfer and registration into their names.

This was not done, and, as stated previously, no explanation is given as to why that was not done.

There is just a bald statement by the applicant, which was not supported by a supporting affidavit from the third respondent, that the third respondent did not have the money to process the transfer.

The attachment was done more than one and a half years after the divorce order.

Why then should the first respondent be prejudiced when it is the applicant and the third respondent who failed to protect their minor children's rights by complying with the terms of the divorce order to transfer and register the house into the children's names within a year of the divorce order?

The adage “the law helps the vigilant and not the sluggard” enunciated in Ndebele v Ncube 1992 (1) ZLR 288…, is applicable in this instance.

The applicant and the third respondent were not vigilant in safeguarding the minor children's interests.

Secondly, as indicated by the first respondent, the applicant was aware of the debt and the search for assets as far back as December 2014, yet, she still did not make effort to ensure registration of the house into the children's names.

What further compounds the matter for the applicant is that the relief she is seeking sounds permanent in nature.

It is not a stay pending some other application or action to be taken but a permanent stay of execution.

Her affidavit, in paragraph 18.3, also suggests that the second and third respondents have no financial means to clear the debt.

All these factors militate against the granting of the application.

Granting the application will mean that the first respondent cannot recover his debt from the second and the third respondent forever, when he has a court order entitling him to do so, and this court has no power to stop a creditor with a valid court order from recovering his debt.

In any event, the property is also mortgaged to another creditor so the rights of the children remain exposed even if the application were to be granted.

As correctly conceded by the applicant, in paragraph 19.1 of her founding affidavit, the attachment cannot be faulted since the property still belongs to the third respondent.

While the court sympathises with the minor children in this case, the court has no legal basis to stay execution of the attached property.

The application is therefore dismissed with costs.

This is an appeal against the default judgment granted by the Labour Court on 2 November 2016.

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.

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.

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.

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.

This is an appeal against the entire judgment of the Labour Court sitting at Bulawayo, handed down on 18 January 2010. After reading documents filed of record and hearing counsel, we made the following order:

“IT IS ORDERED:

1. The appeal be and is hereby allowed.

2. There shall be no order as to costs.

3. The judgment of the Labour Court, in cases No. LC/URG/MT/25/08 and LC/MT/37/08 be and is hereby set aside and substituted with the following:

'(i) The urgent chamber application by the respondents be and is hereby struck off the roll.

(ii) The urgent chamber application by the applicants be and is hereby struck off the roll.

(iii) The retrenchment agreement entered into between the parties and approved by the Retrenchment Board be and is hereby upheld.

(iv) There shall be no order as to costs.'”

This judgment contains the reasons for the order....,.

The factual background to the matter is as follows:

The first appellant was, at the time of the institution of these proceedings in the court a quo, said to be the 'owner' of the second and third appellants. In legal terms he was the director and sole shareholder thereof.

The second and third appellants were companies duly registered in terms of the laws of Zimbabwe.

The respondents were employed by the second and third appellants, and, due to viability constraints, a decision was taken to retrench them.

A notice to retrench, dated 15 April 2008, was duly issued, and bore the names of those affected by the decision to retrench.

Efforts were made to negotiate a retrenchment package but no agreement was reached, prompting the parties to seek the assistance of the relevant National Employment Council (“NEC”).

The National Employment Council (NEC) gave the parties up to 15 May 2008 to reach a compromise, failure of which the matter would be referred to the Retrenchment Board.

The parties reached an agreement before this deadline.

As required by section 12C(3) of the Labour Act [Chapter 28:10] (“the Act”), approval for the retrenchment of employees was signed by the parties and sent to the Retrenchment Board, which, in turn, gave its approval in terms of the same section of the Labour Act.

When the appellants were about to implement the approved settlement, the respondents changed their minds and approached the Labour Court with a chamber application for an interdict whose effect would be to stop the appellants from implementing the retrenchment package that was approved by the Retrenchment Board.

The respondents also cited irregularities in how the retrenchment agreement came about, in particular, that it was not agreed upon because some members of the Workers Committee had not signed it. They further alleged, that, the approved settlement was not ratified by the affected employees and neither was it approved by the Minister.

In the same urgent chamber application, the respondents were seeking a final order that the agreement for the retrenchment package be declared null and void and the Retrenchment Board's approval thereto set aside. The final order would allow reinstatement of the respondents without loss of wages or benefits.

A provisional order was granted on 23 May 2008. It interdicted the first appellant from paying out retrenchment packages to the respondents without an order of court.

The main matter on the final order sought was set down for hearing on 4 July 2008 but was not heard on that day.

The parties negotiated further and signed another settlement document. When the appellants sought to implement the new agreement, the respondents refused to accept the package.

The matter was then heard on 18 January 2010 and the learned judge essentially held, that, the retrenchment itself was not done procedurally and was therefore a nullity.

In the judge's view, this was a consequence of the fact that the Minister did not approve the retrenchment - despite the agreement of the parties thereto.

Aggrieved by the decision of the Labour Court, the appellants unsuccessfully sought the leave of that court to note an appeal to this court. They, thereafter, and successfully, approached this court for leave to appeal to it, hence the instant appeal.

The appeal was brought on nine grounds. However, a number of the grounds were struck out for not being concise as required by the Rules of this court, for containing argument or for making no sense at all.

It hardly needs re-emphasizing, that, grounds of appeal must conform to laid down requirements.

The issues that arose from the valid grounds of appeal were as follows:

(i) Whether or not the court a quo erred in making an order against the first appellant.

(ii) Whether or not the Labour Court has the jurisdiction to grant an interdict and a declaratory order.

I will proceed to deal with the issues as outlined.

The first issue raises the important principle, under Company Law, pertaining to the lifting of the corporate veil.

The first appellant was cited in the court a quo as the first respondent, in his perceived capacity as the 'owner' or alter ego of the second and third appellants herein.

The first appellant challenged this citation as improper, arguing that he could not be cited in legal proceedings against and together with the two companies, since they were, at law, separate legal personae capable of suing and being sued in their own names.

The respondent's counsel conceded, at the hearing of the appeal, that, the first appellant had not been properly cited, even as a respondent, in the court a quo.

This concession, we find, was properly made.

The principle of lifting the corporate veil was aptly enunciated by PATEL J…, in the case of Deputy Sherriff Harare v Trinpac Investments (Pvt) Ltd & Another HH121-11, where, among other authorities, he cited the following apposite remarks from the South African case of Cape Pacific Ltd v Lubner Controlling Investments (Pty) Ltd & Others 1995 (4) SA 790 (AD)…,:

“It is undoubtedly a salutary principle that our Courts should not lightly disregard a company's separate personality, but, should strive to give effect to and uphold it.

To do otherwise would negate or undermine the policy and principles that underpin the concept of separate corporate personality and the legal consequences that attach to it.

But, where fraud, dishonesty or other improper conduct (and I confine myself to such situations) is found to be present, other considerations will come into play. The need to preserve the separate corporate identity would, in such circumstances, have to be balanced against policy considerations which arise in favour of piercing the corporate veil…, and a court would then be entitled to look to substance rather than form in order to arrive at the true facts, and, if there has been a misuse of corporate personality, to disregard it and attribute liability where it should rightly lie.

Each case would obviously have to be considered on its own merits.”

In casu, no allegation of fraud, dishonesty, or other improper conduct was levelled against the first appellant, which might have justified the lifting of the corporate veil of the other two appellants.

Indeed, the applicants gave no good explanation before the court a quo to justify the citation of the first appellant save to state that he was the 'owner' of the two appellant companies.

The first appellant was therefore improperly cited and no part of the court a quo's judgment was binding on him.

The appeal therefore succeeds in this respect.

The delay in handing down judgment in this matter, especially considering the manner in which the matter will be disposed of, is most sincerely regretted.

The appellant employed the respondent as a Security Officer.

It has appealed against the entire judgment of the Labour Court (“the court a quo”) handed down on 14 September 2012. The judgment allowed an appeal by the respondent against the decision of the appellant's disciplinary committee (“the committee”) which found him guilty of misconduct and dismissed him from employment.

On a date that is not material, the respondent allegedly gave copies of his payslips to a former employee of the appellant who was involved in a labour dispute with the appellant. The payslips were duly attached as evidence by the former employee to his court papers which were served on the appellant.

Thereafter, the appellant charged the respondent with two counts of misconduct for breaching Clause 8.5 of the Zimbabwe Newspapers Company Code of Conduct. Specifically, the respondent was accused of committing any act, misconduct or omission inconsistent with the express or implied conditions of employment and acting in conflict with the Group Business or Editorial Policies.

I note, in passing, that, the single act gave rise to two separate charges neither of which was preferred in the alternative, a glaring irregularity that was not adverted to by either of the parties at the hearing of the matter, as it offends the rule against the splitting of charges.

The issue was not raised with counsel and it cannot be a point on which this appeal may turn.

In his written response to the charges, the respondent denied that he had furnished the former employee with his payslips for personal use.

He appeared before a disciplinary committee on 19 November 2010.

At the hearing of the matter, the respondent argued, that, the disclosure of a payslip was not an act of misconduct specifically provided for in the code of conduct. He further argued, that, the prohibition against disclosure of a payslip was only introduced after he had been charged.

At the end of the hearing, the disciplinary committee found that the copies of the pay slips attached to the former employee's application appeared to belong to the respondent; that two witnesses testified that the respondent had admitted to them that he had given his payslips to the former employee; and that the respondent, in furnishing his payslips to the former employee, was being disloyal to the employer.

On the basis of these findings, the committee duly found the respondent guilty and dismissed him from employment.

I also note at this stage, that, there was no specific finding by the disciplinary committee that the respondent knew, at the time he allegedly gave his payslips to the former employee of the appellant, that his conduct was prohibited. It was the finding of the disciplinary committee, that, by giving his pay-slips to the former employee, the respondent acted disloyally.

Aggrieved by that decision, the respondent appealed to the Group Chief Executive Officer. He raised a number of grounds of appeal:

(i) The first was that the “offence involving payslips” was not provided for in his contract of employment or the code of conduct and that the endorsement on all payslips that they are “private and confidential” only appeared after his conviction and not before.

(ii) Secondly, the respondent argued, that, there was no evidence of any wrongdoing on his part and that the charges preferred against him were contrary to public policy as the appellant wanted to further its illegal practice of underpaying workers, and, as such, the respondent was not obliged to protect such an interest.

The respondent also alleged, that, the verdict of guilty went against the weight of evidence in that the former employee testified that he had not received the payslips from the respondent and no evidence was led to controvert such testimony.

He also attacked the procedure adopted in sentencing him alleging that he was not called upon to mitigate before the penalty was imposed on him.

Finding no merit, the appellant's Group Chief Executive Officer dismissed the appeal.

He found, that, the offence was provided for in the appellant's code of conduct and that the disclosure of payslips, or copies of pay slips, to any third party, is inconsistent with the implied conditions of the employment contracts of all the appellant's employees and in direct conflict with the interests of the Group.

He found, that, the burden of proof was on the respondent to prove that he did not give his payslips to the former employee. It was his finding that the respondent had failed to discredit the evidence that his pay-slips were found attached to the former employee's court papers.

The Group Chief Executive Officer relied on the minutes of the disciplinary committee hearing in holding that the respondent had made an admission to the two witnesses called by the appellant.

Still dissatisfied, the respondent noted an appeal to the court a quo on a multiplicity of grounds, nine in total. Only three of those grounds of appeal raised issues of law.

In essence, they raised the issue whether the respondent's conduct, if proved, amounted to an act inconsistent with the express or implied conditions of his contract of employment.

This is so because the respondent's conduct complained of occurred immediately before the condition that payslips were private and confidential was introduced. This, in addition to the other issues, was a live issue that had to be determined.

Using somewhat different language, the court a quo also identified the issue of whether the conduct of giving a payslip to a third party, prior to their being endorsed “private and confidential” constituted a misconduct.

The court a quo regarded it as the sole issue for determination.

In a rather terse judgment, the court a quo upheld the appeal on essentially three premises, namely:

1. That, the respondent, and all other employees of the appellant, were not aware that furnishing their payslips to another was conduct inconsistent with the terms of their employment.

2. That, there was no evidence on record to prove that the respondent had given his payslips to the former employee.

3. That, the failure to allow the respondent the opportunity to mitigate before the pronouncement of a penalty was incurably bad and vitiated the entire proceedings.

The roles were immediately reversed. Dissatisfied with the decision of the court a quo, it became the appellant's turn to appeal to this court.

It attacked the decision a quo on several bases:

(i) First, that the court a quo erred in finding that the respondent was not properly charged.

(ii) Second, that it erred in finding that the respondent was not aware that the confidential nature of the payslips did not have to be spelt out.

(iii) Third, that it erred in finding that there was no adequate evidence before the disciplinary committee that the respondent had given his payslips to the former employee.

(iv) Lastly, that the court a quo erred in finding that the failure to mitigate vitiated the proceedings as dismissal was the only appropriate penalty in terms of the Code of Conduct.

At the commencement of the hearing of the appeal, counsel for the appellant made an oral application to amend the prayer in the Notice of Appeal.

Counsel desired to insert words to provide for an order that the appeal be allowed. He did so upon a realization that this was omitted in the prayer contained in the Notice of Appeal.

Counsel for the appellant submitted, that, no prejudice will be suffered by the respondent if the amendment is granted especially as the respondent's counsel had not even picked up the defect in the prayer. In fact, the respondent had prepared to meet the appeal without regard to the defect.

While acknowledging that he had not even noticed the defect, counsel for the respondent opposed the application for the amendment.

He submitted, that, the Notice of Appeal must clearly set out the relief sought. If it fails to do so, it is null and void and cannot be amended for the reason that one cannot amend a nullity.

For his part, counsel for the appellant was quick to concede that the prayer is defective as it does not meet the requirements of Rule 37(1)(e) of the Supreme Court Rules 2018. He, however, refuted that the defect is one which renders the appeal a nullity.

In his view, the court is empowered, by Rule 41, to allow an amendment to the grounds of appeal or to any pleadings filed before it, presumably including a prayer.

It has been stated, repeatedly, by the courts, that, a failure to comply with the mandatory provisions of the Rules when lodging an appeal renders the appeal a nullity: see Matanhire v BP Shell Marketing Services (Pvt) Ltd 2004 (2) ZLR 147 (S).

Generally, where a Notice of Appeal does not comply with the Rules, the matter ought to be struck off the roll. This is because a nullity cannot be amended: see Chikura N.O. & Anor v Al Shams Global BVI Ltd SC40-17.

The belated application for an amendment is meant to bring the appeal within the remit of Rule 37(1) which requires, that, every civil appeal shall be instituted in the form of a notice of appeal signed by the appellant or his or her legal practitioner which shall state, inter alia “the exact relief sought.”

The relief sought by the appellant in this case is couched in the following words:

“WHEREFORE appellant prays that the judgment of the court a quo be altered to read as follows –

'The appeal be and is hereby dismissed.'”

If the proposed amendment is granted, the prayer will read:

“WHEREFORE the appellant prays that the appeal be allowed with the judgment of the court a quo altered to read as follows -

'The appeal be and is hereby dismissed.'”

The concession made by counsel for the appellant, that the prayer is defective, is properly made.

The question however is whether the application should be granted. Put in another way: can the defective prayer be amended?

This Court was confronted with a similar situation in the case of Ndlovu & Anor v Ndlovu & Anor SC133-02. In that case, the prayer in the Notice of Appeal was couched in the following terms:

“…, that the judgment of the court a quo be dismissed with costs.”

Writing for the court, MALABA JA…, followed the reasoning in Jensen v Acavalos 1993 (1) ZLR 216 (S)…,.

He observed, that, the Notice of Appeal was clearly defective as there was no mention whether the whole or only part of the judgment was being appealed against and the exact nature of the relief sought.

At p2 of the cyclostyled judgment, he stated:

“In this case, there was no mention of whether the whole or part only of the judgment was being appealed against. The exact nature of the relief sought was not stated. What was prayed for in the notice of appeal was that the judgment of the court a quo be dismissed with costs. It is the appeal which is dismissed or allowed. If the appeal is allowed the judgment or decision appealed against is then set aside and a new order substituted in its place. In this case, it was not known what order the appellants wanted this Court to make in the event the appeal succeeded.”

The court concluded, that, the notice of appeal, which purported to institute the appeal “was incurably defective.” As there was no appeal before the court, the matter was struck off the roll with costs.

The case of Ndlovu & Anor v Ndlovu & Anor SC133-02 is on all fours with the present matter.

It has not been suggested that a departure from the case is called for. It settles this matter because the prayer is incurably defective. It cannot be amended.

A Notice of Appeal which does not meet the requirements of the Rules of court is fatally defective and invalid. A fatally defective compliance with the Rules on the filing of an appeal cannot be condoned or amended.

The appellant's Notice of Appeal suffers the fate of all fatally defective appeals.

Having come to the conclusion, that, there is no valid appeal before the court, there is no basis for relating to the merits.

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

1. The matter is struck off the roll.

2. The appellant shall bear the costs.

The issue of the appellant failing to provide a written agreement after the respondent paid the drafting fee, so as to enable him to obtain a mortgage loan, was never a term of the original agreement.

It is a fundamental principle of every contract that both parties will duly carry out their respective obligations: see Blumo Trading (Private) Limited v Nelmah Mining Company (Private) and Another HH39-11. In the event that a party fails to carry out its obligation this will amount to a breach of the contract or agreement.

In R.H. CHRISTIE, Business Law in Zimbabwe, Juta & Co. Ltd…, the learned author states that:

“Breach may take a number of forms other than mora, and, whether a breach has been committed will be decided by comparing what the debtor has done or not done with what he ought to have done on a proper interpretation of the contract….,.Once it is decided that a breach has been committed, it is necessary to decide whether the creditor is entitled to the most drastic remedy, of cancellation, or whether he must be content with one or more of the other available remedies.”

The admission by the respondent, that he failed to pay the full purchase price, amounted to a breach of the agreement of sale which gave the respondent the right to cancel the agreement between the parties.

As such, the respondent cannot continue to have occupation of the property while he is in breach of the agreement of sale. The ownership rights of the appellant must be protected.

In the case of Alspite Investment (Pvt) Ltd v Westerhoff 2009 (2) ZLR 236 it was stated, that, there are no equities in an application for a rei vindicatio as it is a principle of our law that an owner, as a general rule, cannot be deprived of his property against his will.

With respect to the appellant's claim for damages in the sum of US$58,800 calculated at the rate of US$700 per month as reasonable rental income from the date of occupation to date of summons, and the claim for holding over damages in the sum of US$700 calculated from 1 August 2017 to the date of eviction, it is our view that these claims were not substantiated or proved at trial.

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....,.

At the commencement of the appeal hearing, counsel for the first respondent took a preliminary point seeking the removal of the matter from the roll to facilitate consolidation of this matter with other appeals in case records SC27/20, SC32/20, and SC34/20.

She argued, that, it would be unjust to determine this appeal before the main matter has been determined.

Asked by the court as to the stage the other matters she sought to be consolidated were, she said that the records in SC27/20 and SC32/20 were complete but was not sure of record SC34/20.

Asked whether she had given notice of the intended consolidation to all the parties, she stated that she had only given notice to some of the interested parties. She was therefore seeking removal of the case from the roll to enable her to give the relevant notices to all the remaining interested parties.

Counsel for the appellants objected to the application for the removal of the case from the roll.

He submitted, that, it was not true that there were three related cases pending before this Court because the appeal in case SC34/20 had been abandoned. It was his submission that the judgments of CHIKOWERO J and MUSITHU J, respectively, had not been appealed against. He further pointed out, that, in both outstanding appeals, the second respondent is not even a party and the respondents are not the appellants. Counsel for the appellants pointed out, that, counsel for the first respondent's client, Ben Mambara, had been barred.

Finally, he argued, that, in the circumstances of this case, the Court has a discretion which it should exercise in his favour because it was not convenient to remove the matter from the roll causing further unnecessary delays.

Having considered the submissions by counsel, we noted, that, counsel for the first respondent had not established a compelling case for removal of the case from the roll.

She was not even certain of the status of the appeals she intended to have consolidated.

Apart from merely submitting that it will be unjust to proceed with this appeal before the main matter has been determined, she did not motivate what prejudice or injustice her client would suffer if the matter was not removed from the roll.

In her written submissions, she made it clear that it would be proper to proceed with this appeal without consolidation when she says at p1 of her heads of argument:

“Whilst it would be proper to deal with the current appeal alone, this will be a matter where the court may have to consolidate all matters involving the parties,”…,.

What this means is that there is nothing wrong if the appeal is determined alone without consolidation.

Upon careful consideration of submissions made by counsel, we took the view, that, the question of signatories to the Bank account needed to be resolved expeditiously without being drawn back by the uncertainties surrounding the state of preparedness of the other cases to be heard on appeal.

For that reason, we came to the conclusion, that, the requested removal of the case from the roll will not serve any useful purpose but only to cause uncertainty and unnecessary delay. Consequently, we dismissed the application and directed that the appeal hearing must proceed.

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.

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....,. 

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....,.

At the hearing of the appeal, the first respondent raised a preliminary point challenging the validity of the appellant's second ground of appeal.

It asserted, that, the ground of appeal did not raise a question of law. Rather, it attacked the factual finding of the court to the effect that the appellant had tendered no evidence to support his assertion that the first respondent's Board had approved most of the actions that formed the basis of the misconduct charges levelled against him.

Per contra, the appellant contended, that, the impugned ground of appeal raised a procedural issue that attributed the acts of the employee to the employer itself, that is, the first respondent.

Counsel for the appellant referred to Zvokusekwa v Bikita Rural District Council SC44-15, which held, that, it was not the formulation but the substance of a ground of appeal that matters.

After hearing argument from both counsel, the court found merit in the submissions of the first respondent and upheld its point in limine.

The court noted, that, the court a quo clearly found, as a matter of fact, that, the appellant had not tendered any evidence to substantiate the assertion that the first respondent's Board had indeed approved the actions that were then converted into misconduct charges against him.

As a factual finding, the appellant could only have successfully impugned it upon proof that the finding was so grossly unreasonable that no other court, properly applying its mind to the issue, could have reached the same conclusion: see Barros v Chimphonda 1999 (1) ZLR (S) 58…,.

The appellant, not having proved any such misdirection on the part of the court a quo, the court accordingly struck out the appellant's second ground of appeal.

Standard Chartered Bank Zimbabwe (“the appellant”) or (“the Bank”) is a commercial bank registered and operating in Zimbabwe.

The respondent is a company duly incorporated in terms of the laws of Zimbabwe and was carrying on business in Redcliff, Zimbabwe. It is a foreign investor whose specific purpose was the refurbishment of the blast furnaces of a Zimbabwean steel manufacturing company popularly known as Ziscosteel.

In October 2007, the respondent held two accounts with the Kwekwe branch of the appellant. As at 9 October 2007, there was, in the two accounts, an aggregate credit balance of US$47,739=86.

In terms of a directive issued by the Reserve Bank of Zimbabwe (sometimes referred to herein as “the RBZ”) sometime in October 2007, the appellant transferred, to the RBZ, the total credit balance of US$47,739=86 from the two accounts.

The directive does not form part of the record, but, it is common cause that it was purportedly issued in terms of section 35(1) of the Exchange Control Regulations 1996, SI109 of 1996 (“the Regulations”).

When the respondent demanded payment to it of the monies deposited in the accounts, the Bank refused to repay. It claimed that the intervention of the Reserve Bank of Zimbabwe (RBZ) had rendered it impossible for it to comply with its contractual obligation to make payment to the respondent.

The respondent applied to the High Court for an order compelling payment.

It alleged, that, the monies were wrongfully and unlawfully debited from its account without its consent and approval. It claimed, that, in terms of the law of banking, the Bank was contractually bound to repay the credit balances on demand.

The Bank contended, in its defence, that, upon receiving the directive by the Reserve Bank of Zimbabwe (RBZ), the funds held in the respondent's accounts ceased to be the property of the Bank and became that of the RBZ. It was contended further, that, the intervention of the Reserve Bank of Zimbabwe (RBZ) constituted an Act of State, and, therefore, a supervening impossibility which discharged the appellant from its obligations to the respondent.

The learned Judge granted the application. It is against his judgment that the Bank now appeals.

The main issue which falls for determination in this appeal is whether the Bank is liable to pay to the respondent the aggregate amount of US$47,739=86 transferred by it to the Reserve Bank of Zimbabwe.

The general rule relating to deposits made in a Bank account by a customer is that the money becomes the property of the Bank which can use such deposit as it pleases so long as it pays to the depositor, on demand, the equivalent of the amount deposited in the account.

In Standard Bank of South Africa v Echo Petroleum CC, Case No.192/11 (2012) ZASCA 18 (22 March 2012)…, it was said:

“The general rule is that, moneys deposited into a bank account fall into the ownership of the bank. The resulting credit belongs to the customer, the bank having a contractual obligation to pay the customer, on demand, and to honour cheques validly drawn on the account to the extent that it stands in credit.”

See also ABC Bank v Mackie Diamonds SC23-13; Foley v Hill (1848) 2 H.L. Cas 28.

The legal relationship between a Bank and its customer, whose account is in credit with it, is that of debtor and creditor.

Although the customer 'deposits' money to the credit of his account with the bank, the transaction is not one of depositum, but of loan: see Burg Trailers SA (Pty) Ltd v ABSA Bank Ltd 2004 (1) SA…,.; Ormerod v Deputy Sheriff, Durban 1965 (4) SA 670 (D)…,.; Absa Bank Ltd v Intensive Air (Pty) Ltd & Ors 2011 (2) SA 275.

If this legal position is followed to its logical conclusion, then, the deposits were the property of the Bank and what the Bank paid to the Reserve Bank of Zimbabwe (RBZ) was its own money.

That the Bank parted with the deposits in the account was of no import to the respondent whose right to be paid the equivalent of the deposits, on demand, remained unaffected by the Bank's dealings therewith.

The transfer to the Reserve Bank of Zimbabwe (RBZ), in terms of its directive, did not, therefore, extinguish the Bank's contractual obligation to make payment to the respondent.

The Bank contends, that, it is discharged from its contractual obligations to the respondent by reason of a supervening impossibility otherwise known as a vis maior or casus fortuitus, namely, the Reserve Bank of Zimbabwe (RBZ) directive.

In support of its stance, it relies on the judgments in Peters, Flamman & Co v Kokstad Municipality 1919 AD 427 and Bob's Shoe Centre v Henneways Freight Services (Pty) Ltd 1995 (2) SA 421 (A).

The brief facts of Peters, Flamman & Co v Kokstad Municipality 1919 AD 427, as summarised in The Law of Contract in South Africa 3ed by RH CHRISTIE…, are that the appellant firm was contracted to light the streets of Kokstad for a period of years. During the currency of the contract, in wartime, the partners were interned as enemy aliens and their business wound up under the relevant war legislation. The Municipality's claim for damages for breach of contract and forfeiture of the firm's plant under a clause of the contract was rejected by the Appellate Division. At pp434-5 of the judgment of the court, SOLOMON ACJ remarked as follows:

“…,. Nor is it necessary to consider generally what are the circumstances in which it can be said that a contract has become impossible of performance. For the authorities are clear, that, if a person is prevented from performing his contract by vis maior or casus fortuitus, under which would be included such an Act of State as we are concerned with in this appeal, he is discharged from liability.”

In Bob's Shoe Centre v Henneways Freight Services (Pty) Ltd 1995 (2) SA 421 (A) the appellants were contracted to clear and deliver a consignment of shoes to the respondents factory in the city. A fire consumed the warehouse where the shoes were warehoused. The shoes were destroyed and it became impossible to complete performance of the contract.

Clearly, the facts of both these cases are distinguishable from those in casu.

The appellant herein has not shown, that, for some reason beyond its control, it cannot, from its resources, repay the debt. It has not proved impossibility.

It goes without saying, that, in order for its defence to succeed, the appellant must do more than merely allege impossibility. The impossibility must be proved, that is, it must be clear from the evidence that performance is impossible, not merely undesirable or uneconomical: see The Law of Contract in South Africa 3ed by R H CHRISTIE…,.

In any event, it would appear, that, where a Ministerial directive is given without statutory authority, obedience thereto will not qualify as a vis major or casus fortuitus.

The appellant has submitted, that, it was obliged to follow the Reserve Bank of Zimbabwe's directive and cites section 40 of the Exchange Control Regulations 1996, S.I.109 of 1996 (the Regulations).

It alleges, that, it did not oppose the directive because of its fear of the Reserve Bank of Zimbabwe (RBZ), which, in terms of section 37 of the Exchange Control Regulations 1996, SI109/1996, has the power to revoke its licence.

As the respondent submitted, the directive was issued without statutory authority. It was ultra vires the provisions of section 35 of the Exchange Control Regulations 1996, S.I.109/1996 (the Regulations) which grants no authority to the Reserve Bank of Zimbabwe (RBZ) to confiscate deposits in the accounts of customers of the Bank.

The correctness of this submission emerges quite clearly from a reading of the section which provides as follows:

“35. Authorised dealers and other persons to comply with directions

(1) Authorised dealers shall comply with such directions as may be given to them by an exchange control authority relating to -

(a) The exercise of any functions conferred on them by or under these regulations;

(b) The terms on which they are to exchange foreign currency for Zimbabwean currency;

(c) The offer of foreign currency in their possession for sale to the Reserve Bank.

(2) Persons concerned with —

(a) The keeping of any register in Zimbabwe; or

(b) The payment of capital moneys, dividends, or interest in Zimbabwe;
shall comply with such directions as may be given to them by an exchange control authority in relation to any function conferred or imposed on them by or under these regulations.”

Not only was the directive in violation of section 35 of the Regulations, but, the Bank had the option, if so minded, of resorting to the provisions of section 37 of the Regulations which provide for adequate opportunity to be given to the dealer concerned to make representations before any punitive measures were taken, as well as to the safeguards provided in section 40.

Both statutory provisions are set out below.

“37. Penalties for failure by authorised dealers to comply with regulations or directions

(1) Subject to this section, if an exchange control authority is satisfied that an authorised dealer has –

(a) Contravened any provision of these regulations; or

(b) Failed to comply with any order or direction with which it is its duty to comply;

The exchange control authority may direct the authorised dealer to cease all dealings in foreign currency, or such dealings as the exchange control authority may specify, for such period not exceeding twelve months as the exchange control authority may specify in the direction.

(2) Before giving a direction in terms of subsection (1), the exchange control authority shall give the authorized dealer concerned an adequate opportunity to make representations in the matter.”

“40. Orders

(1) Subject to subsection (3), the Reserve Bank may make orders for all or any of the following purposes —

(a) To protect or improve the value of Zimbabwean currency;

(b) To bring about and preserve stability in the currency market in Zimbabwe;

(c) To prescribe any matter, which, in terms of these regulations, is required or permitted to be prescribed or which, in the Reserve Bank's opinion, is necessary or convenient to be prescribed in order to give effect to these regulations.

(1) Orders made under subsection (1) may provide for —

(a) The manner in which authorized dealers shall conduct their business for the purposes of these regulations;

(3) Orders made under subs (1) shall not have effect until they have been approved by the Minister and published in the Gazette.”

At the hearing of the appeal, counsel for the appellant conceded, that, the Reserve Bank of Zimbabwe (RBZ) directive was ultra vires of the provisions of section 35(1) of the Exchange Control Regulations 1996, SI109/96 (the Regulations).

Paragraph (c), it will be seen, deals with the offer of foreign currency in their possession for sale to the Reserve Bank of Zimbabwe (RBZ).

He submitted, however, that, the defence of supervening impossibility was available to the Bank even where the directive was unlawful.

I disagree.

In The Law of Contract in South Africa 3ed by R H CHRISTIE…, the following observation is made by the author:

“The limits of vis maior and casus fortuitous have not been authoritatively defined for the purposes of this branch of the law, but, it is clear, from Peters, Flamman, where the internment and winding-up were carried out under statutory authority, that, any similar act of state would qualify.

Legislation subsequent to the making of the contract, making performance illegal either absolutely or without a specified consent which has been refused, will also qualify, as will refusal of a statutory consent, but not obedience to a ministerial directive given without statutory authority.

For the purposes of this branch of the law, there is no necessity to distinguish between vis maior and casus fortuitus, which, between them, include any happening, whether due to natural causes or human agency, that is unforeseeable with reasonable foresight and unavoidable with reasonable care.”…,.

And on page 528:

“Self-created impossibility, that is, impossibility resulting from the act of one of the parties, does not discharge the contract but leaves the party whose act created the impossibility liable for the consequences. This will be so whether the impossibility is complete or partial, and whether or not the act that causes the impossibility is wrongful.”

I respectfully associate myself with those views.

The acts complained of by the Bank do not qualify as vis maior or casus fortuitus and do not absolve the Bank from compliance with its contractual obligation to the respondent.

As has been shown above, the credit balance in the respondent's account is a debt that the appellant owes to the respondent.

The appellant has placed no evidence before the court which would establish that it has become impossible for it to make payment of its debt.

Its contention is that, having made payment to the Reserve Bank of Zimbabwe (RBZ) in terms of its directive, it no longer has the respondent's money in its possession and is consequently discharged from its obligation to make payment, upon demand, by the respondent.

The contentions by the appellant run contrary to the established principles of Banking Law, namely, that, the deposits became the Bank's property.

It seems that what the appellant's defence boils down to is that it ought not to be expected to pay in these circumstances.

But, as has been demonstrated above, the dealings by the appellant with the deposits in the accounts, namely, the payments to the Reserve Bank of Zimbabwe, were made at its own risk and did not affect its obligation in law to pay its debt to the respondent on demand.

The appeal is accordingly dismissed with costs.

We have already seen, that, case law establishes that the owner is entitled to possess the property which he/she owns. No one can take away that property from the owner without his/her consent save where the claimant has proved that he/she has some lawful residual right to possess the property such as contractual or retention rights.

The appellant, having failed to prove ownership of the disputed animals, the ball was squarely in her court to prove that she had the right to possess the animals despite not being the owner.

Her claim for the right to possess the animals was grounded on her claim of ownership of the animals.

Her failure to prove ownership of the animals automatically, by operation of law, divested her of the right to possess the animals because the law vested the right of possession on the owner.

Her lease agreement with the first respondent could not assist her because, according to her claim, the contract did not apply to the disputed animals. It only applied to the animals resident at the sanctuary on 1 October 2005.

These animals were not the subject of the dispute. The dispute only related to the animals that came to the sanctuary after 1 October 2005.

In any case, the lease agreement terminated when she was evicted from the sanctuary. She could therefore not continue to hold onto the first respondent's property on the basis of an expired contract.

In the final analysis, we find, that, the appellant, having failed to prove ownership of the disputed animals, had no legal basis to claim possession of the animals from the owner. That being the case, the learned judge a quo's judgment is unassailable.

In the result, it is ordered, that, the appeal be and is hereby dismissed with costs.

This is an appeal against the whole judgment of the High Court (“the court a quo”) holding that the first respondent had complied with the provisions of the Contractual Penalties Act [Chapter 8:04] (“the Contractual Penalties Act”) in sending a notice of cancellation of an agreement to the appellants by registered post.

The Court holds, that, the delivery of a registered mail slip at the appellants chosen domicilium citandi constituted due delivery as contemplated by section 8(3)(b) of the Contractual Penalties Act, and as provided for in the parties agreement.

It was not necessary for the document containing the written notice to be delivered to the appellants. Once there was delivery of the registered mail slip then there was delivery of the notice in the same manner as when one is given keys to a house or motor vehicle.

On 24 February 2015, the appellants and the first respondent entered into an Agreement of Sale (“the agreement”), in terms of which the first respondent sold to the appellants a vacant piece of land described as Stand Number 321 being a subdivision of Marconi Farm of Kinvara, held under Deed of Transfer number 1136/2002 (“the property”).

The purchase price of the property was pegged at US$30,000.

A deposit of US$15,000 was to be paid in instalments. The first US$10,000 towards the deposit was to be paid upon the signing of the agreement. The balance of the deposit of US$5,000 was to be paid in instalments of US$1,666=67 for a period of three months starting from 30 April 2015. The remaining balance of the purchase price of US$15,000 was to be paid over a period of eighteen months. That balance of the purchase price was to attract interest at the rate of 20% per annum.

Possession of the property was to be given to the purchaser upon payment of 50% of the purchase price.

It was further agreed between the parties, that, if the purchaser failed to perform any of the obligations under the agreement and failed to rectify such breach within thirty days of dispatch by the seller of written notice of such breach by registered post or hand delivery, the seller would have the right to cancel the agreement.

It was further agreed, that, in such circumstances, the seller would regain possession of the property and claim damages by way of a cancellation fee in the sum of US$2,000 subject to compliance with the provisions of the Contractual Penalties Act, or claim specific performance in terms of the agreement with interest at the rate of 20% per annum.

Pursuant to the agreement, the appellants took possession of the property.

In breach of the terms of the agreement, the appellants failed to pay some of the instalments of the purchase price when they became due for payment. Consequently, the first respondent cancelled the agreement.

The cancellation resulted in the appellants instituting summons in the court a quo. They contended, that, contrary to the terms of the Agreement of Sale, there was no thirty day notice given by the first respondent to enable them to rectify the breach.

The allegation was that the first respondent's conduct was in violation of the terms of the agreement.

The appellants sought an order, from the court a quo, declaring the cancellation of the agreement to be invalid. They also asked the court a quo to order the first respondent to accept payment of the arrear instalments together with interest thereon. Lastly, they sought an order compelling the first respondent to sign all documents necessary for the transfer to themselves of the property.

The first respondent filed a plea and a counter-claim in response to the appellants claim.

In the counterclaim, the first respondent averred, that, the appellants breached the agreement when they defaulted on the payment of instalments towards the purchase price for the property when the payment became due. As at 31 October 2017, they had accrued arrears in the sum of US$24,194=04.

The first respondent further contended, that, acting in terms of clause 11 of the agreement, it notified the appellants of the breach through a letter which was served on them via registered mail on 20 November 2017.

The allegation was that the appellants did not rectify the breach, leading to the first respondent cancelling the agreement on 30 October 2018 through a letter which was again served on the appellants via registered mail.

The first respondent prayed for the confirmation of the cancellation of the agreement, eviction of the appellants from the property, the payment of US$2,000 as cancellation fee, payment of holding over damages of US$600 per month, and costs of suit.

In response to the counter claim, the appellants denied all the averments made by the first respondent. They alleged, that, the notice of breach of the agreement given by the first respondent did not comply with the requirements of the contract between the parties.

The appellants accepted that they had breached the agreement by failing to pay the instalments when they became due and payable.

The matter proceeded by way of a Stated Case.

The agreed facts were, that, the appellants had defaulted in the payment of the instalments and had fallen into arrears in the amount of US$24,194=04. It was agreed, that, consequent upon the breach of the agreement between the parties, the first respondent dispatched a letter, by registered post, to the appellants domicilium citandi on 20 November 2017 giving them thirty days notice of intention to cancel the agreement.

The parties also agreed, that, on 15 December 2017, and prior to the expiration of the thirty days notice period, the first respondent dispatched another letter, by registered post, purportedly cancelling the agreement.

The appellants had moved from the domicilium citandi without notifying the first respondent. As a result, the registered mail remained unclaimed at the Post Office until it was returned to the first respondent on 11 April 2018.

The parties were in agreement, that, on 26 October 2018, the first respondent sent another letter to the appellants, advising them to disregard the letter of 15 December 2017 and to consider the letter of 26 October 2018 as the final cancellation letter.

Notwithstanding the letter of 26 October 2018, and in an attempt to remedy the breach of the agreement, the appellants paid into the first respondent's Bank account the sum of US$12,960 on 20 November 2018. They subsequently made payments of US$14,138=20 and US$3,780 on 7 and 9 January 2019 respectively.

The payments were not received because the first respondent had closed the Bank account.

The parties agreed that there was one issue for determination. They couched it as being:

“Whether or not the provisions of the Contractual Penalties Act [Chapter 8:04], in particular section 8(2) as read with section 8(3)(b) that entitles a debtor to a written notice before a credit provider institutes action, requires the debtor to actually receive the notice.”

The court a quo found, that, in sending, by registered post, the notice to the appellants to rectify breach of the agreement within the prescribed period, the first respondent had complied with the legal obligation under the Agreement of Sale. It held that there was compliance with section 8(3)(b) of the Contractual Penalties Act. The appellants claim was dismissed with costs.

Aggrieved by the decision of the court a quo, the appellants noted the present appeal.

The issue for determination is whether the holding by the court a quo, that the delivery of the registered mail slip at the domicilium citandi was service on the appellants of the notice of breach of the agreement of sale in terms of section 8(3)(b) of the Contractual Penalties Act was correct.

The appellants argued, that, what was delivered at the domicilium citandi was not the package containing the written notice itself.

As regards the legal consequences of the delivery, counsel referred the Court to section 40(1) of the Interpretation Act [Chapter 1:01] (“the Interpretation Act”).

Counsel for the appellants argued, that, section 40(1) of the Interpretation Act regulates the interpretation of section 8(3)(b) of the Contractual Penalties Act, which deals with the delivery of registered mail.

It was further submitted, that, section 40(1) of the Interpretation Act envisages a situation where the document with the written notice is delivered rather than the registered mail slip.

He further asserted, that, the provisions of section 8(3)(b) of the Contractual Penalties Act do not depart, in principle, from those of section 40(1) of the Interpretation Act.

He also submitted, that, section 8(3)(b) of the Contractual Penalties Act must be read together with section 40(1) of the Interpretation Act.

The argument was that there was no compliance with section 8(3)(b) of the Contractual Penalties Act.

Counsel for the first respondent argued, that, it was common cause that the registered mail slip was delivered at the appellants domicilium citandi.

He argued, that, the obligations under section 8(3)(b) of the Contractual Penalties Act were discharged by the first respondent.

Counsel further asserted, that. the first respondent did not have the additional obligation to ensure that the appellants collected the registered mail from the Post Office.

Counsel for the first respondent further stated, that, contrary to the terms of the agreement, the appellants had vacated their chosen domicilium citandi without informing the first respondent. He argued, that, while the appellants claimed not to have seen the registered mail slip, they had admitted receipt of a process sent in the same way subsequent to the delivery of the registered mail slip.

The question is whether the court a quo was correct in holding that the delivery of the registered mail slip at the appellants domicilium citandi constituted service of the written notice of breach of the agreement between the parties in terms of section 8(3)(b) of the Contractual Penalties Act [Chapter 8:04].

The court a quo said at pp9 and 10 of the judgment:

“The first defendant served the notice in terms of the parties agreement. Paragraph 15 of that agreement gave either party's chosen domicilium citandi and 268/64 Chiltern Road, Waterfalls was the plaintiffs chosen domicilium.

The parties had also indicated in the agreement that any variations or changes to the contract should be in writing and signed by both parties. It is in that same contract that the parties agreed on their respective domicilium for the purpose of receiving any correspondence. There was no variation or change to this.

…,.

A chosen domicilium citandi denotes where a party to a contract desires to receive whatever communication that is in relation to issues to do with such contract.

It follows, therefore, that one's residential address need not be one's chosen domicilium.

A party may choose such domicilium based on where they regard as the most convenient place to receive legal notices, and, should that change, it is to be expected that such party will duly notify those likely to be sending such notice, otherwise the whole concept of choosing a domicilium citandi loses meaning.

It is in this context that one must interpret the provisions of section 8(3)(b) of the Act.

I am therefore persuaded by Mr Nyahuma's argument, that, when the notice dated 17 November 2017 was sent by registered post to the purchaser's chosen domicilium citandi, the first defendant was complying with the exigencies of the provisions of section 8(3)(b).”

Choosing a domicilium citandi has specific legal consequences, such as -

(i) The party who elected the domicilium citandi should be ready to receive any legal notice that is delivered to that address;

(ii) If a change in address occurs, a party should notify the other contracting party, preferably in writing, of such a change in address; and

(iii) Delivery of a legal notice or document to the domicilium citandi chosen by a party to a contract will be considered sufficient for the purposes of legal action and such party would be deemed to have received the legal notice or document.

Section 8 of the Contractual Penalties Act [Chapter 8:04] provides as follows:

“8 Restriction of sellers rights

(1) No seller under an instalment sale of land may, on account of any breach of contract by the purchaser —

(a) Enforce a penalty stipulation or a provision for the accelerated payment of the purchase price; or

(b) Terminate the contract; or

(c) Institute any proceedings for damages;
unless he has given notice in terms of subsection (2) and the period of the notice has expired without the breach being remedied, rectified, or discontinued, as the case may be.

(2) Notice for the purposes of subsection (1) shall —

(a) Be given in writing to the purchaser; and

(b) Advise the purchaser of the breach concerned; and

(c) Call upon the purchaser to remedy, rectify, or desist from continuing, as the case may be, the breach concerned within a reasonable period specified in the notice, which period shall not be less than —

(i) The period fixed for the purpose in the instalment sale of the land concerned; or

(ii) Thirty days;
whichever is the longer period.

(3) Without derogation from section 40 of the Interpretation Act [Chapter 1:01], a notice shall be regarded as having been duly given to the purchaser for the purposes of subsection (1) —

(a) If it has been delivered to the purchaser personally or to an agent chosen by the purchaser for the purpose of receiving such notices; or

(b) If it has been posted, by registered post, to the address chosen by the purchaser for the delivery of correspondence or legal documents relating to the instalment sale of land concerned, or, in the absence thereof, to the purchaser's usual or last known place of residence or business.”

Section 40(1) of the Interpretation Act [Chapter 1:01] provides as follows:

“40 Service of Documents

(1) Where an enactment authorises or requires a document to be served by post, and where the word 'serve' or any of the words 'give' 'deliver' or 'send' or any other word is used, the service of the document may be effected by prepaying, registering and posting an envelope addressed to the person on whom the document is to be served at his usual or last-known place of abode or business, and containing such document, and, unless the contrary is proved, the document shall be deemed to have been served at the time at which such envelope would have been delivered in the ordinary course of post.”…,.

Parties to a contract are allowed the discretion to choose different forms of delivery of documents or legal notices that relate to the contractual relationship.

The parties elected to use the registered mail system as a mode of delivery.

Because they chose this mode of delivery of documents relating to the contractual relationship, it meant that they agreed to be bound by it.

The law of service of documents by registered post prescribes a procedure for ensuring effective service.

The procedure entails that the registered article, such as an envelope containing the document concerned and bearing the name of the addressee and place where the mail is to be delivered, be deposited by the originator or sender at a Post Office. The registered article must be accepted and its receipt, as a registered item, acknowledged.

Using the internal system of ensuring the security of registered mail, the Post Office concerned conveys the registered article to the branch nearest to the address on the registered item. The branch of the Post Office in possession of the registered item issues out a registered mail slip directed at the address on the registered article, notifying the person whose name appears as the addressee of the availability of the registered item at the Post Office for collection.

The registered item becomes capable of retrieval by the addressee from the Post Office.

Delivery of the registered mail slip at the address appearing on the registered article constitutes effective service of the registered mail. The collection of the registered item from the Post Office is the responsibility of the addressee.

The South African case of Kubaya v Standard Bank of South Africa Ltd [2014] ZACC 1 sets out, at paragraph 48, a standard practice of the Post Office on the conveyance and delivery of registered mail similar to that prevailing in Zimbabwe. The court said:

“It is so, that, section 96(1) requires that notices be delivered 'at the address' provided by the recipient. However, this requirement must be understood with due regard to the practical aspects of dispatching a notice by way of registered mail.

When a credit provider dispatches a notice in that manner, the notice is sent to a particular branch of the Post Office. That branch then sends a notification to the consumer, indicating that a registered item is available for collection. It is never the case that an item dispatched by registered mail will physically be delivered to an individual – such delivery only occurs if the item is sent by ordinary mail, which does not suffice for purposes of sections 129 and 130 of the Act.

If a consumer elects not to respond to the notification from the Post Office, despite the fact that she is able to do so, it does not lie in her mouth to claim that the credit provider has failed to discharge its statutory obligation to effect delivery.”

Where a party to a contract has chosen an address as a domicilium citandi where service of documents or correspondence on matters relating to the contract should be effected and has selected the registered mail as the preferred mode of service of documents or correspondence, compliance by the other party with the procedure prescribed under the law of service by registered post would constitute effective service of any such document or correspondence upon delivery of the registered mail slip at the chosen domicilium citandi.

The procedure prescribed by the law of service of documents or correspondence by registered post does not require delivery of the registered item itself at the chosen domicilium citandi.

In Munien v BMW Financial Services (SA) (Pty) Ltd and Another 2010 (1) SA 549 WALLIS J stated the following...,:

“It follows, that, in my judgment, provided the credit provider delivered the notice in the manner chosen by the consumer in the agreement, and such manner was one specified in section 65(2)(a), it is irrelevant whether the notice in fact came to the attention of the consumer.

As the consumer has the right to choose the manner in which notice is to be given, it is for the consumer to ensure that the method chosen will be one that is reasonably certain to bring any notice to his or her attention.

In the present case, the applicant was presumably aware of the deficiency in the postal services at the address chosen in the agreement. He was certainly aware that he had moved. In terms of clause 15.1 of the contract, he was perfectly entitled to give notice of that fact to the first respondent and to alter his domicilium. He did not do so.

His right to alter his address was reinforced by section 96 of the NCA.

In addition, he was obliged, under section 97 of the NCA, to inform the first respondent that the location of the motor vehicle had changed, but, it does not appear that he did so.

The fact that he did not receive either the notices or the summons appears to follow very largely from his own actions rather than those of the first respondent.”

It is common cause, that, the parties had agreed, under clause 15 of the agreement, that the domicilium citandi would be as stated in the agreement. It is also common cause, that, under clause 14 of the agreement, the parties had agreed that any variation or change to the contract would be in writing and agreed on by both parties.

The written notice, drawing the attention of the appellants, as purchasers, to breach of the contract and calling upon them to rectify the breach within thirty days of service of the notice on them failing which cancellation of the contract would follow, was sent by registered post to the branch of the Post Office nearest to the address the appellants had chosen as the domicilium citandi.

The Post Office issued out a registered mail slip to the domicilium citandi, notifying the appellants of the availability of the registered item for collection. The registered mail slip was delivered at the domicilium citandi.

The act of delivery of the registered mail slip at the domicilium citandi completed the process of effective service of the notice by registered post contemplated under section 8(3)(b) of the Contractual Penalties Act.

Section 8(3)(b) of the Contractual Penalties Act does not require actual receipt of the registered mail itself by the addressee. It does not require the seller, under an instalment sale of land, to bring the contents of the notice of breach to the subjective attention of the purchaser.

Section 8(3)(b) of the Contractual Penalties Act is to the effect, that, the notice shall be regarded as having been duly given to the purchaser if it has been posted, by registered post, to the address chosen by the purchaser for the delivery of correspondence or legal documents relating to the instalment sale of land concerned.

The seller discharged its obligation to the appellants, as purchasers, in terms of the contract, as read with section 8(3)(b) of the Contractual Penalties Act, regarding the mode of service of the notice of breach of the contract.

The fact that the appellants no longer resided at the chosen domicilium citandi was of no consequence to the determination of the question whether delivery of the registered mail slip at the domicilium citandi constituted effective service of the notice of breach of the contract for purposes of section 8(3)(b) of the Contractual Penalties Act.

The risk of non-receipt of the registered item lay with the appellants once the registered mail slip was delivered at the domicilium citandi. The obligation to notify the seller, in writing, that they were no longer residing at the chosen domicilium citandi was theirs.

In Van Niekerk and Another v Favel and Another 2006 (4) SA 548 (W)…, it was held, that, the requirement of notifying the purchaser of breach of contract and making demand of the purchaser to rectify the breach was satisfied provided that the letter had in fact been sent to him by registered post, whether or not it was received by the purchaser.

The contention advanced on behalf of the appellants was that the service of the written notice of breach by the seller, on the purchaser, by registered mail, required under section 8(3)(b) of the Contractual Penalties Act was the delivery of the written notice itself in a registered envelope at the chosen domicilium citandi.

That meaning, of section 8(3)(b) of the Contractual Penalties Act, was said to be derived from the application of section 40(1) of the Interpretation Act on the interpretation of enactments providing for service of documents by registered post.

The contention advanced on behalf of the appellants overlooked the principle contained in section 2(1)(a) of the Interpretation Act, to the effect, that, the application of the provisions of the Interpretation Act to the construction of any enactment must be consistent with the intention, purpose, or context of the enactment.

The purpose of section 8(3)(b) of the Contractual Penalties Act is to make provision for effective service of a written notice of breach of the instalment sale of land by the seller, to the purchaser, where it has been posted by registered post to the address chosen by the purchaser for the delivery of correspondence or legal documents relating to the instalment sale of land.

Section 8(3)(b) of the Contractual Penalties Act expressly provides that the notice shall be regarded as having been duly given to the purchaser for the purposes of subsection (1)(b) (termination of the contract) if it has been posted by registered post to the address chosen by the purchaser as the domicilium citandi.

Given the provisions of section 2 of the Interpretation Act, section 40(1) of the of the Interpretation Act may not be relied upon to contradict the purpose of section 8(3)(b) of the Contractual Penalties Act.

Section 8(3)(b) of the Contractual Penalties Act does not need the application of section 40(1) of the Interpretation Act because its provisions are clear and unambiguous.

Accordingly, it is ordered as follows -

“The appeal is dismissed with costs.”

Kenneth Sithole died at Bulawayo on 6 February 2013. During his lifetime, he purchased, from Rebecca Howes, a piece of land, being Stand 15 Rangemore Township 3 of Lot G of Upper Rangemore, also known as Plot 15 Gramps Way, Rangemore (hereinafter referred to as the Plot).

Kenneth Sithole's widow, one Monica Sithole, with whom he contracted a civil marriage, is the only surviving spouse with whom he had one issue, Nozipho Sithole, now aged six years.

Kenneth Sithole also left other children, of whom the respondents herein are some of them, from his previous marriage.

All those children were majors at the time of his death.

Prior to his death, Kenneth Sithole, his widow, and the minor child lived on the Plot and none of the respondents lived there.

Following his death, the respondents and their families forced their way onto the Plot and despoiled the widow and the minor child of it.

This was before the applicant was appointed executor of the estate.

After the applicant was appointed executor, on 15 October 2013, the Assistant Master of this Court and himself advised the respondents to move out of the Plot so as to facilitate the smooth administration of the estate.

That advice fell on deaf ears.

The respondents remained put disrupting the administration of the estate. The surviving spouse has not been allowed back and the tenants on the Plot have been forced to run away therefrom.

Due to respondents unlawful conduct alluded to supra, which conduct the applicant deems interferes with the fulfillment of his functions of administering and winding up the estate, the applicant filed this application seeking eviction of the respondents and all those claiming occupation of the Plot through them, an interdict that the respondents be ordered not to set foot on the Plot, and costs of suit.

The application is opposed by both respondents who are brother and sister respectively.

In their imagined understanding of the applicable law to the dispute, I am constrained to quote in extenso the respondents supposed opposing affidavit which goes as follows:

“NOTICE OF OPPOSITION OF THE DRAFT ORDER (undated)

We Respondents above, do hereby oppose the Draft Order Application as follows:

1. That the Draft Order by the Executor is baseless and without the Court Order to support it.

2. That according to the local custom, it would be illegal to evict the rightful heirs to the estate of their late father and mother.

3. That we have the most valid title to the land after the death of our parents since we also contributed financially to pay for it before Applicant came to stay with the late or after our mother died.

4. We pray that the Master of the High Court could look into the Administration of this estate.

5. The executor to this estate was biased and took sides with the original applicant. Instead, he disregarded his duty to settle this estate the right way within the law of intestate succession.

6. At the time of marriage, the late was critically ill raising suspicion of marriage of convenience.

7. We therefore pray to the Master of the High Court to appoint another executor who will be able to settle this issue with justice.

8. We also pray that the Honourable Court throw out Applicant's Application and then consider the Administration of this Estate in accordance with the laws and custom of the land and also grant us ownership of this estate.”

The document is signed by both respondents and a Commissioner of Oaths, one P. Ndlovu.

It is crystal clear from a reading of the purported opposing affidavit that the respondents, in their layperson's understanding of the general law of intestate succession, have no clue as to how it operates.

Such an estate is supposed to be administered in terms of the relevant provisions of the Deceased Estates Succession Act [Chapter 6:02] as read with the Administration of Estates Act [Chapter 6:01] and not according to custom.

They did not advert to the real issues raised by the applicant in their opposing papers.

They did not deny that Monica Sithole is the sole surviving spouse of the late Kenneth Sithole.

They did not deny that the widow and the minor child lived at the Plot with the deceased at the time of his death.

They also did not deny that themselves and all those claiming occupation of the Plot through them were not living at the Plot at the time Kenneth Sithole passed on.

Further, they both did not deny forcing the widow from the Plot and that they are obstructing the executor from fulfilling his duties of winding up the estate by forcibly and arbitrarily occupying the Plot.

In his oral submissions at the hearing of the application, the first respondent made a bare denial of the allegation simply alleging that the application is based on fabrication and that he never threw out his step-mother from the Plot.

I am not convinced that his denials are well founded.

If he did not throw out his step-mother from the Plot, she would not have left and I do not believe that the applicant would have launched this application.

As regards the allegation that he is frustrating the applicant in his duties to administer the estate, the first respondent said:

“It is not very true that we are impending the work of the executor.”

The ordinary grammatical meaning of this statement is clearly that there is some impediment.

He is not supposed to engender any amount of impediment to the applicant - however slight.

If account is had to the tone of the opposing “affidavit” it is not difficult to infer that both respondents are entirely inimical to the widow benefitting from the estate and also to the applicant administering this estate.

It therefore must be true that they did and continue to do what the applicant alleges.

The second respondent, in her oral submissions, was more comical.

She said she went to stay at the Plot at the invitation of the widow and when the latter told both of them to leave, they left, and, as it is, the applicant is executing his duties “nicely.”

Nothing can be further from the truth.

If that were so, I do not think that the applicant would have approached this court seeking the relief alluded to above. Also, the widow would not have left the Plot.

In view of the foregoing, I have no difficulty finding that the applicant has made a good case for the relief sought.

In the result, it is ordered as follows:

1. The respondents and all those claiming occupation through them be and are hereby ordered to vacate Plot 15, Gramps Way, forthwith failing which the Sheriff or his lawful deputy is authorized to evict them.

2. The respondents be and are hereby interdicted from setting foot on the Plot.

3. The respondents shall pay the costs of suit jointly and severally the one paying the other to be absolved.

The third respondent, as a new farmer allocated land by the Ministry of Lands, could be held to derive rights from the offer letter.

But, deriving rights and enforcing rights are two different things.

What the third respondent should have done, in a bid to enforce the rights he believes he has by virtue of the offer letter, would be to enforce them through due process.

Due process entails approaching the courts to enforce one's rights of occupation.

Forcible occupation of a piece of land possessed by another person is unlawful and is not due process. It does not matter where one derives their right from.

Due process must be followed in the enforcement of same otherwise there would be anarchy and chaos if every person who believes that they have a right or entitlement decides to take the law into their own hands.

Self-help would lead to anarchy and this is where the unlawfulness of the third respondent's conduct is.

In spoliation proceedings, all an applicant has to prove is that he was in peaceful and undisturbed possession of the property - he need not prove anything beyond that.

The third respondent has admitted, in his own opposing affidavit, that he did move onto the land occupied by the applicant with the assistance of the police.

He also does not allege that the applicant surrendered, by consent, Lot 4 of Maleme Farm to him.

His own affidavit confirms, that, he in fact went in and seized the farm from the applicant on the basis of the offer letter and on the basis that the applicant had no right to remain on gazetted land.

What is important, at this juncture, is that the applicant has proved, that, it was in peaceful and undisturbed possession prior to the third respondent's arrival.

Spoliation proceedings are a remedy against unlawful dispossession of property.

In the case of Yeko v Qana 1973 (4) SA 735 (A)…, the learned judge stated thus:

“In order to obtain a spoliation order, the onus is on the applicant to prove the required possession and that he was unlawfully deprived of such possession.

As the appellant admits that he locked the building, it was only the possession that respondent was required to establish.

If the respondent was in possession, the appellant's conduct amounted to self help.

He was admittedly in occupation of the building with the intention of selling the stock for his own benefit.

Whether the occupation was acquired secretly, as appellant alleged, or even fraudulently is not the enquiry. For as Voet, 41.2.16, says, the injustice of the possession of the person despoiled is irrelevant as he is entitled to a spoliation order even if he is a thief or a robber.

The fundamental principle of the remedy is that no one is allowed to take the law into his own hands.

All that the spoliatus has to prove is possession of a kind which warrants the protection accorded by the remedy, and that he was unlawfully ousted.”

In Willes, Principles of South African Law by HUTCHISON et al, 8th edition…, the following is stated;

“If a person has been deprived of possession by violence, fraud, stealth or some other illicit method, he may obtain from the court a mandamant van spolie, or spoliation order, commanding the dispossessor to restore the possession to himself, the applicant. It is a fundamental principle that no man is allowed to take the law into his own hands.

Consequently, if a person, without being authorised by a judicial decree, dispossesses another person, the court, without enquiring into the merits of the dispute, will summarily grant an order for restoration of possession to the applicant as soon as he has proved two facts, namely;

(i) That he was in possession; and

(ii) That he was despoiled of possession by the respondent.

The policy of the law is neatly summed up in the maxim, spoliatus ante omnia restuendus est.”…,.

This maxim means, that, before the question of title can be resolved, the person deprived of possession must be restored to his previous position.

The aforestated authorities have summed it up.

The act of spoliation is unlawful in all cases - land matters included.

The third respondent has to restore possession to the applicant in accordance with the law and then wait for the law to take its course so that if his rights of occupation are founded through a judicial decree, and he eventually occupies the farm, he does so lawfully.

I accordingly grant the provisional order in terms of the draft for the reasons herein stated.

Even if the documents were to be taken as only prima facie evidence establishing the applicants rights, it is clear that the fear of irreparable prejudice is properly founded.

The first respondent evinces an intention to mine on the claims even though no actual mining activities have commenced. The applicants cannot wait until actual mining starts when there is evidence of an intention to mine on the disputed claims.

In deciding whether the balance of convenience favours the granting of the interim interdict, the court weighs the prejudice to the applicant if the interim relief is not granted against the harm to the respondent if the relief is granted.

The present situation is that the first respondent is not carrying on any mining activities on the claims. It is therefore not prejudiced by the granting of the interim relief being sought which is essentially the maintenance of the status quo.

The first respondent, through its legal practitioner, suggested, in the alternative, that an interdict could be granted stopping all mining activity by both parties until the dispute is resolved.

Such an order would unduly prejudice the applicant whose title to the claims has not been challenged, let alone set aside.

Counsel for the first respondent submitted, that, there is an alternative remedy of approaching the Mining Commissioner.

The remedy is not an alternative remedy to the interdict being sought in the present case as it does not achieve the same result. It is doubtful, that, the suggested recourse would afford the applicants the relief of ensuring that the first respondent's employees should not be allowed within two hundred metres of the mining claims.

In the result, the application is granted in terms of the draft provisional order as amended.

The first and second respondents filed their responses.

The first respondent responded on the merits through an affidavit deposed to by the Permanent Secretary of the relevant Ministry. The first respondent's position was set out in the relevant paragraphs of her affidavit as follows:

“3. I have read the applicant's founding affidavit and wish to respond as follows;

4. All due processes leading to the downsize of the applicant's farm size were observed and adhered to and the applicant was left with enough land to conduct his dairy farming activities and other operations.

5. The Ministry policy permits the applicant to wind up any operations and harvest any crops that he might have planted without any interference from the incoming beneficiary.

6. In essence, the 2nd respondent is to allow the applicant to wind up operations with no interference from himself and/or any others that claim occupation through him.

7. In the premise, we abide with the court's ruling.”

The first respondent's position was therefore that the Minister did not oppose the interim relief sought. This much appears clearly from an analysis of paragraphs 5 and 6 of the first respondent's affidavit.

The Ministry does not allow an incoming beneficiary to interfere with operations of the incumbent operative who is given an opportunity to wind up his or her operations without interference.

The second respondent, on the other hand, was opposed to the application on three (3) grounds;

(i) Firstly, that the application was defective and therefore a nullity;

(ii) Secondly, that the matter was not urgent; and

(iii) Thirdly, on the merits.

I deal with the issues raised in turn....,.

On the merits, the applicant simply has to establish a prima facie case to obtain a provisional order.

A consideration of the papers filed in this matter, and the parties submissions, have left me satisfied that the applicant managed to establish a prima facie case.

The second respondent did not really deny the acts of spoliation complained of by the applicant. His attitude appeared to me to be that of one claiming a right to the disputed piece of land, and hence, by such right, an entitlement to act in whatever manner he chooses. For example, in paragraph 26 of his opposing affidavit, he admitted that he brought his property onto his allocated farm and did not need anyone's authority or permission to do so.

He misses the point.

The claim of right defence does not apply to spoliation proceedings.

In paragraph 27 of the same opposing affidavit, the second respondent averred that he “politely” asked the applicant to vacate the property. He does not, however, allege that the applicant, when politely asked to vacate, as averred, agreed to do so.

The applicant, without doubt, did not agree to vacate the farm nor did he allow the second respondent to chuck him out of the farm or disturb the applicant's farming activities.

The applicant petitioned the court for protection because he did not consent to the second respondent's acts of spoliation or takeover.

The second respondent should look to the law to enforce his rights and the more so taking into account, that, as a Chief, he must lead by example and obey and uphold the country's laws.

A close reading of the second respondent's affidavit shows that he has no defence to the allegations of spoliation. He describes the applicant as being defiant of his authority as Chief and being disrespectful.

The second respondent averred, in paragraph 31 of his opposing affidavit, as follows:

“…,. It is clear that what the applicant is trying to do is to prevent me from enjoying peaceful possession of my farm which was allocated to me by the first respondent.”

The second respondent averred, in his opposing affidavit, that, he cannot live with the applicant whom he referred to as his 'subject' in his area where such subject is hostile to him. He avers that the applicant must leave the area.

After hearing submissions from counsel for the second respondent, I formed the view, that, the second respondent felt challenged in his authority as Chief of the area by the applicant who challenged his takeover of the farm after allocation by the first respondent.

The law is blind. Every person is equal before it.

It would be a sad day for the gains which civilization and democracy have made if people in authority were to consider themselves as being a law unto themselves.

The facts of this matter are straightforward.

The first respondent has downsized the applicant's farm. A portion thereof has been allocated to the second respondent. The applicant has property and a crop on the farm. Until such time that the applicant vacates the portion allocated to the second respondent, either on his own violation or by eviction sanctioned by law, no one, including the second respondent, is allowed to forcibly occupy the farm - including the portion allocated to the second respondent.

Even the allocating authority, being the first respondent, has deposed to the fact that it does not support a policy of hostile takeover.

I therefore rule, that, the applicant has, on a balance of probabilities, made out a case for spoliation and is entitled to the relief which he seeks....,.

The plaintiff issued summons in this matter seeking an order as follows:

(a) Eviction of the defendant and all those claiming right of occupation through him from a property known as House Number 5 Cypress Avenue, Masasa, Kwekwe.

(b) Payment of $3,478 being arrear rentals for the period extending January 2013 to December 2013.

(c) Holding over damages at the rate of $11=50 per day from January 6, 2014 to the date of eviction.

(d) Payment of the sum of $169=32 being arrears ZETDC bills and $243 being the Municipality bills.

(c) Costs of suit at a higher scale.

It is important to note, that, the plaintiff's witness advised the court that claim number (d) on the summons was being abandoned because the utility bills had been paid by the defendant to the relevant authorities.

The plaintiff's case is that the defendant took over occupation of Stand 5 Cypress Avenue, Masasa, Kwekwe, after the decease of one Chengoma who was the lessee leasing the property from the plaintiff.

The plaintiff was made to understand, that, the defendant was related to the late Chengoma and would want to remain in occupation and take over the lease.

The plaintiff allowed the defendant to remain in occupation on condition the defendant paid monthly rentals in the sum of $345 per month.

They were to assess the defendant's performance on payments before crafting a lease in the defendant's name.

The defendant fell into arrears shortly after this arrangement was made resulting in the plaintiff instituting this action.

The defendant, on the other hand, agrees that he took occupation of the property in issue and that he was to pay $345 per month, but, that, in fact, he had entered into a rent to buy agreement with the plaintiff.

In giving evidence, the defendant told the court, that, in the rent to buy agreement he was to pay $345 per month and he was supposed to have paid $9,600 by 31 August 2013.

He however told the court, that, he did not pay the $9,600 by 31 August 2013 as the Bank had said he could be given an indulgence to pay within another three months. He said however he did not pay the $9,600 even by December 31, 2013 as he had only paid $7,500 by then.

Asked what the precise terms and conditions of the rent to buy agreement were, he said he was to pay $9,600 at $345 per month by 31 August 2013.

The defendant also told the court, that, it was another term of the agreement that he would then pay about $25,000 “soon after paying the $9,600” to make up the total purchase price of $35,000.

He said that his agreement with the Bank was oral.

The defendant failed to produce proof of payments for the rentals per month from 2012 to date. He only tendered about nine copies of deposit slips all with dates in 2012. They were marked Annexure “A”.

From the facts before me, the following are common cause:

(a) That the defendant took occupation of the plaintiff's property sometime in 2012–2013.

(b) That the defendant did make some payments towards rentals.

(c) That there are no rental slips for the years 2013, 2014 and 2015.

(d) That the property, i.e. Number 5 Cypress Avenue, Masasa, Kwekwe belongs to the plaintiff.

(e) That an agreement was reached between the parties resulting in the defendant occupying the plaintiff's property; whatever nature of agreement, whether it was a rent to buy or lease, but, the bottom line is some agreement was reached.

Looking at the plaintiff's allegations, that the defendant inherited Chengoma's lease whom they were made to believe was his relative, and the rentals agreed upon, as well as the payment slips tendered by the defendant, the plaintiff's case sounds, in my view, to be plausible.

On the other hand, the defendant's case creates numerous problems and I list them herein.

Assuming that the court were to accept the defendant's version of events, there are these challenges in adopting that version:

This raises eyebrows as any person who owns an immovable property to the value of $35,000 would not behave in such a manner - moreso a Building Society.

On the other hand, the plaintiff's explanation for the oral lease agreement is plausible in that the defendant was taking over Chengoma's lease, as a relative, and this would entail continuity. Also, that they did not immediately reduce the agreement to writing since they wanted to observe the defendant's conduct with regard to payments makes sense.

(2) The defendant says, that, the agreement was that he takes occupation, pays $345 per month as rentals in a rent to buy agreement, and that he should have paid $9,600 by 31 August 2013 from January 2012.

2012 had 12 months, and, from January 2013 to August 2013 its 8 months, meaning, that, there is a total of 20 months. At $345 per month, for 20 months, mathematically, the defendant would have paid $6,900.

So, it would not make sense that the Bank agreed with him that he pays $9,600 by 31 August 2013, from January 2012, at the rate of $345 per month.

(3) When he was asked for the precise terms of this rent to buy agreement, he said that he was to pay about $25,000 “soon after paying the $9,600.”

What kind of agreement is this?

(4) The defendant did not comply with the terms of the agreement he alleges was entered into.

He never paid $345 per month consistently for the 20 months stretching from January 2012 to 31 August 2013. Neither did he pay the $9,600 by 31 August 2013.

He says that he was given a leeway to pay within 3 months from the last date given; but, it is also his evidence that he had not paid the $9,600 by December 2013. He also did not pay the balance of about $25,000 “soon after paying the $9,600” as he never paid the $9,600 in the first place.

Clearly, the defendant is being untruthful with the court from the aforestated analysis.

He wants to take the court in a long meandering route destined nowhere. He is merely wasting the court's time and is indeed abusing court process in my view.

He knows that he entered into a lease agreement with the plaintiff, defaulted on rentals, and then decide to come up with a concocted rent to buy story that was falling apart on its own.

I accordingly grant the plaintiff the following relief for the aforestated reasons:

(a) Eviction of the defendant and all those claiming right of occupation through him from the property known as House Number 5 Cypress Avenue, Masasa, Kwekwe.

(b) Payment of $3,478 being arrear rentals for the period extending January 2013 to December 2013.

(c) Holding over damages at the rate of $11=50 per day from January 6, 2014 to the date of eviction.

(d) Costs of suit at a higher scale.

This is an application for direct access to the Constitutional Court made in terms of section 167(5)(a) of the Constitution of Zimbabwe. The allegation is that the conduct of the respondents violated the applicant's fundamental rights as enshrined in sections 69(1) and 70(1)(d),(e) and (f) of the Constitution.

The brief facts of the matter are as follows:

In 2017, the applicant was arraigned before the magistrates court at Harare facing charges of fraud as defined in section 136 of the Criminal Law (Codification and Reform) Act [Chapter 9:23]. Three separate trials were held before the first, second, and third respondents and he was convicted and sentenced to three separate terms of imprisonment.

It is the applicant's allegation, that, during the conduct of the trial proceedings, the first and second respondents violated his right to legal representation because they did not advise him of that right at the commencement of the trial.

This is alleged to be a violation of section 70(1)(d), (e) and (f) of the Constitution.

In the same respect, it is also alleged, that, the first and second respondents “failed to take heed to the laws governing the commencement of criminal trials” and therefore violated section 163A(1) and (2) of the Criminal Procedure and Evidence Act [Chapter 9:07] (the CP&E Act).

It is further alleged, that, such conduct infringed the applicant's right to a fair trial as entrenched in section 69(1) of the Constitution.

As regards the third respondent, it is averred, that, the magistrate did advise the applicant of his right to legal representation in terms of section 191 of the Criminal Procedure and Evidence Act, but, then failed to make an enquiry as to whether or not the applicant had understood those provisions.

This is said to have led to unfair proceedings in violation of sections 69(1) and 70(1)(d),(e) and (f) of the Constitution.

Allegations are also made against the fourth respondent in that it failed to assist the applicant in protecting his fundamental rights as aforementioned.

Consequent to these alleged violations, the applicant has approached this Court for relief.

The application is opposed by the fourth respondent.

It contends, that, the applicant has not demonstrated, that, it is in the interests of justice that he be granted direct access to the court. It is also argued, that, the mere reference to constitutional provisions does not mean that a constitutional matter has been raised.

It is important to note, that, the fourth respondent concedes that the proceedings before the first, second, and third respondents were irregular, but, nevertheless, avers that competent relief could have been granted by the High Court or the Supreme Court thus obviating the need to approach the court directly.

In fact, it is alleged that the applicant has since approached the High Court for relief under Case No. HC7066/20.

It is prayed that the application be dismissed as it is without merit....,.

There is a further disconcerting aspect of this matter that we think it necessary to comment upon before it is disposed of.

This relates to the mandatory provisions of sections 163A and 191 of the Criminal Procedure and Evidence Act [Chapter 9:07] (CP&E Act) which enjoin the courts, in criminal cases, to advise accused persons of their right to legal representation at the commencement of criminal trials.

The nub of the applicant's case is that the first and second respondents violated this crucial procedural requirement and thereby denied him the right to proper legal representation.

As for the third respondent, it is averred, that, he did advise the applicant of this right but then failed to make the further enquiry as to whether or not the applicant had understood the import of the governing provisions.

The fourth respondent quite correctly concedes, that, in the trials before the first and second respondents there was no compliance with section 163A of the Criminal Procedure and Evidence Act (CP&E Act). The State also concedes, that, the third respondent failed to record the exchange with the applicant pertaining to his right to legal representation and his comprehension or otherwise thereof.

It is openly acknowledged by counsel for the fourth respondent, that, these omissions, on the part of the first, second, and third respondents, constituted gross irregularities.

Nevertheless, the State appears to have displayed a dogged reluctance to take heed of these irregularities or the applicant's justifiable grievances in that regard.

Regrettably, unlike the High Court and the Supreme Court, this Court is not presently endowed with any statutory powers of review that might be invoked and exercised mero motu to address or redress these patent irregularities.

Nevertheless, we think it necessary, in the interests of justice, to bring them to the attention of the Judge President to enable him to refer the matter to a judge of the High Court for review.

The Registrar of this Court is accordingly directed to submit a copy of this judgment to the Judge President for appropriate action to be taken.

This is an application in terms of section 175(3) of the Constitution of Zimbabwe, for the setting aside in its entirety, of a High Court declaratory order handed down on 15 May 2021. The order, issued in respect of two distinct and separately filed applications, invalidated certain conduct by the President as unconstitutional. This it allegedly did in the first of its two parts.

We summarise the facts giving rise to this application from the two applications that were filed in the High Court under case numbers HC2128/21 and HC2166/21, respectively. The facts are not complex.

The facts of this application coalesce, and relevantly so, around 15 May 2021 when the Chief Justice, Judge Malaba, reached the age of seventy. A few days before that date, on 7 May 2021 to be precise, the Constitution of Zimbabwe Amendment (No.2) Act (No.2 of 2021) came into force.

Among other provisions, it amended section 186 of the Constitution to provide for the tenure of judges in the following terms:

“(1) The Chief Justice and the Deputy Chief Justice hold office from the date of their assumption of office until they reach the age of seventy years, when they must retire unless before they attain that age they elect to continue in office for an additional five years;

Provided that such election shall be subject to the submission to, and acceptance by the President, after consultation with the Judicial Service Commission, of a medical report as to their mental and physical fitness so to continue in office.

(2) Judges of the Constitutional Court are appointed for a non-renewable term of not more than fifteen years; but

(a) They must retire earlier if they reach the age of seventy unless, before they attain that age, they elect to continue in office for an additional five years:

Provided that such election shall be subject to the submission to, and acceptance by the President, after consultation with the Judicial Service Commission, of a medical report as to their mental and physical fitness so to continue in office.

(b) After the completion of their term, they may be appointed as judges of the Supreme Court or the High Court, at their option, if they are eligible for such appointment.

(3) Judges of the Supreme Court hold office from the date of their assumption of office until they reach the age of seventy years, when they must retire, unless, before they attain that age, they elect to continue in office for an additional five years:

Provided that such election shall be subject to the submission to, and acceptance by the President, after consultation with the Judicial Service Commission, of a medical report as to their mental and physical fitness so to continue in office.

(4) Notwithstanding subsection (7) of section 328, the provisions of subsections (1), (2) and (3) of this section shall apply to the continuation in office of the Chief Justice, the Deputy Chief Justice, Judges of the Constitutional Court and Judges of the Supreme Court.”

Acting in accordance with the provisions of section 186 of the Constitution, as amended, the Chief Justice exercised the option to extend his tenure of office beyond the age of seventy for an additional five years.

By letter dated 11 May 2021, the seventh respondent, the President, accepted a medical report as to the mental and physical fitness of the Chief justice to continue in office.

The third (Musa Kika), fourth (Young Lawyers Association of Zimbabwe) and fifth (Frederick Mutanda) respondents formed the firm view, that, the seventh respondent (the President), by accepting the medical report, that the Chief Justice was mentally and physically fit to so continue in office, had subverted the correct constitutional position.

They filed the two applications in the High Court that we have detailed above, challenging the continuation in office of the Chief Justice for an additional five years beyond 15 May 2021.

In his application, the third respondent (Musa Kika), in addition to the Chief Justice, cited as respondents all the judges of the Supreme Court and some judges of the High Court.

At the time of the filing of the application, the five judges of this Court, other than the Chief Justice and the Deputy Chief Justice, were Supreme Court judges, acting as Supreme Court judges and were cited as such. Substantive appointments to this Court were made subsequent to the filing of the applications a quo but before the hearing of this application.

Whilst materially and correctly so, the third respondent (Musa Kika) averred in his application, that, the Chief Justice had opted to exercise the option introduced by the amendment, no such averment was made in respect of any or all of the other judges who were cited as respondents under case number HC2128/21.

We revert to this fact in detail later.

The primary relief sought in the applications a quo was a declaration that the amendment to the Constitution, in section 186, did not apply to the Chief Justice and the judges cited as respondents. Specifically, it was claimed, that, the amendment did not have any force and effect on the tenure of the Chief Justice and the cited judges as such an interpretation would fall foul of the provisions of section 328(7) of the Constitution.

Section 328(7) of the Constitution provides that:

“(7) Notwithstanding any other provision of this section, an amendment to a term–limit provision, the effect of which is to extend the length of time that a person may hold or occupy any public office, does not apply in relation to any person who held or occupied that office, or an equivalent office, at any time before the amendment.”

The two applications, both brought urgently, were opposed on truncated dies induciae in accordance with the terms of a case management meeting order to which all the parties agreed.

At the end of the hearing of the applications, as indicated above, the court a quo issued a singular order in the following terms:

“IT IS DECLARED THAT:

1. The second respondent in HC2128/21 who is also the second respondent in HC2166/21 ceased to hold the office of the Chief Justice of Zimbabwe and judge by operation of law on 15 May 2021 at 4:00 hours.

2. The extension of the length of time in the office of the judge beyond the age of seventy provided for in section 186 of the Constitution does not apply to the second to fourteenth and eighteenth respondents.

3. There shall be no order as to costs.”

The respondents a quo, including the judges of this Court, were aggrieved by the order.

Under separate and different covers, they filed notices of appeal in the Supreme Court challenging the correctness of the decision.

It is not necessary that we set out the grounds of appeal of each appellant in full. As and when it is it necessary to do so, we shall advert to the notices of appeal.

The applicant, strongly believing, that, the effect of the first part of the order was to declare constitutionally invalid the letter of 11 May which constituted the legal authority for the Chief Justice to continue in office, filed this application in terms of section 175(3) of the Constitution.

As indicated above, he sought the setting aside of the entire order.

This he did notwithstanding, that, on its mere reading, the High Court order did not in any way refer to the conduct of the seventh respondent (the President) as constitutionally invalid.

We observe, at this stage, that, the interpretation of the High Court order by the applicant in this regard was conceded as correct by the fourth (Young Lawyers Association of Zimbabwe) and fifth (Frederick Charles Mutanda) respondent's counsel during the hearing of the application.

We shall advert to this concession in detail in due course.

It is common cause that the applicant was not a party to either of the two applications that were determined by the High Court. He brought this application in the first instance. In the application, he alleged that he is an adult Zimbabwean who is asserting his right to access this Court directly to defend and protect the Constitution.

Arguing that the state of affairs in the country following the issuance of the High Court order was undesirable as there should never, in any jurisdiction, be doubt as to who the Chief Justice is, the applicant made two basic contentions:

(i) Firstly, he contended, that, the juristic act by the seventh respondent (the President) of accepting a medical report as to the mental and physical fitness of the Chief Justice to remain in office for an additional five years, after attaining age seventy, was valid and the High Court orders purporting to hold such as constitutionally invalid had to be set aside.

(ii) Secondly, he contended, that, section 328(7) of the Constitution, relied upon by the third (Musa Kika), fourth (Young Lawyers Association of Zimbabwe) and fifth (Frederick Charles Mutanda) respondents as precluding the amendment of the Constitution from applying to the Chief Justice and other sitting judges was not applicable as section 186(4) of the Constitution was the applicable section.

The third, fourth, and fifth respondents opposed the application.

The first (Minister of Justice, Legal and Parliamentary Affairs), second (Judicial Service Commission), sixth (Attorney General) and seventh (the President) respondents were content to keep a watching brief during the hearing of the application.

The third respondent (Musa Kika) opposed the application on the basis of a sole preliminary point. It was his position that this court should refrain from exercising jurisdiction in the matter.

Put differently, it was his position, edified during the proceedings by an oral application, that, this Court should recuse itself. In his view, since the second part of the High Court order declared that the judges of this and the Supreme Court could not extend their respective terms of office beyond the age of seventy, the order under scrutiny in the confirmation proceedings affects the judges of this Court directly.

In this regard, he was keen to highlight and place it on record, that, the judges of this Court had not only participated in the proceedings before the High Court but had since filed a notice of appeal against the High Court order.

It was therefore the mainstay of his exception and position, that, the judges of this Court were completely non-suited to hear this application on account of their positions as active litigants who were already seeking the vacation of the High Court order by way of appeal.

In his further view, the determination of the application by this Court, as constituted, would, in the circumstance of the matter, implicate a breach of the common law principle nemo judex in sua causa.

In opposing the application, the fourth (Young Lawyers Association of Zimbabwe) and fifth (Frederick Charles Mutanda) respondents raised a number of issues:

(i) Firstly, they challenged the competence of this Court to determine the application. They also sought the recusal of the entire bench of this Court on the same ground that the third respondent (Musa Kika) had relied upon.

(ii) Secondly, and before a competently constituted Court, the fourth respondent took issue with the locus standi of the applicant to bring the application in the manner that he did. In essence, it was the fourth respondent's position that the applicant, not having obtained any rights under the High Court order, could not purport to challenge the order.

(iii) Thirdly, and regarding the merits of the matter, the fourth respondent challenged the procedural steps taken and leading to the acceptance by the seventh respondent (the President) of a medical report as to the mental and physical fitness of the Chief Justice to continue in office for an additional five years after his seventieth birthday.

Thus, broadly speaking, the application raised for determination three distinct issues. The second issue would only become relevant and fall for determination if the respondents were not successful on the first issue and the third issue would only require determination if the respondents failed on the second issue.

(i) The first issue was whether this Court should recuse itself;

(ii) If the Court did not recuse itself, the second issue would be whether the applicant had locus standi to bring the application under section 175(3) of the Constitution; and

(iii) Finally, if he did have the requisite standing, whether the application had merit.

After hearing submissions from counsel on the first issue, this Court dismissed the application for its recusal on the turn and indicated that full reasons would be availed in the main judgment.

We now set these out.

The third, fourth and fifth respondents (Musa Kika, Young Lawyers Association of Zimbabwe and Frederick Charles Mutanda) applied for this Court, in its entirety, to recuse itself. In making the application, they relied solely on the fact, that, the third respondent had cited all the judges of this Court as respondents in the application before the High Court.

We again pause to note, that, whilst the third, fourth and fifth respondents went further to point out that judgment was given against all the judges of this Court, who subsequently caused a notice of appeal to be noted on their behalf, these and other averments in the same vein are of no independent legal import. They all stem from the fact, that, the judges were cited as respondents before the High Court and all ensuing proceedings depend for their validity on that fact.

It stands to reason, that, if the citation of the judges was legally inept, nothing valid would flow from it.

The observations that we make above apply with equal force to the argument that was advanced on behalf of the fourth and fifth respondents, erroneous as it was, that, due to the order that was granted against them, the judges of this Court are disenfranchised from exercising the right to extend their respective tenures of office.

We say erroneous because the order that was granted by the High Court was against the judges of this Court in their acting and not in their substantive capacities as judges of this Court.

The same applies to the further argument by the fourth and fifth respondents, that, the application before this Court must be seen as pre-empting the Supreme Court decision in that the draft order in the present application seeks to achieve, in essence, that which the judges of this Court seek to achieve in their notice of appeal before the Supreme Court.

The law of recusal is entrenched in this jurisdiction. It is settled. It has found expression in many words, some of which reflect approval of decisions of other jurisdictions. It is the law against bias, and, where, after investigation, it is established that the judicial officer or decision maker was biased, the ensuing decision is afflicted and must be vacated.

Thus, the law of recusal is an expression, at a very general level, of the principle, that, justice must not only be done but must appear to have been done. This is so because justice is rooted in confidence and confidence is destroyed when right thinking people go away thinking that the court was biased or conflicted.

It is in keeping with this general principle, that, at all times, courts must conduct their affairs in such a way that the court's open-mindedness, its impartiality, and fairness are manifest to all those who follow the proceedings and review the outcome.

This Court has recognized this broad principle in the case of Konson v S CC07-15 where it referred with approval to the remarks of TROLLIP AJA in S v Rall 1982 (1) SA 828, who, in dealing with the limit to which a court can go in questioning an accused person during a criminal trial, had this to say in part:

“…,. 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, content 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.”

As correctly submitted by counsel for the respondents, the law of recusal also finds expression in our supreme law, where it is part and parcel of the bundle of rights that make up the right to a fair hearing as guaranteed in section 69 of the Constitution.

The law provides, in section 69(2) of the Constitution, that, in the determination of their civil rights and obligations, every person has a right to a fair, speedy, and public hearing within a reasonable time before an independent and impartial court.

It is self-evident, that, at the heart of the principle of recusal is the need to protect the right to a fair hearing, which, in turn, lies at the heart of the rule of law. Put differently, an application for recusal is invariably an allegation that the litigant's right to a fair hearing, as constitutionally guaranteed, is under threat of violation.

The law of recusal therefore seeks to re-assert the independence and impartiality of the court that is demanded by section 69 of the Constitution. It further seeks to enhance the notion of even handedness, the universal standard that is required from all those who dispense justice.

It then presents itself to us, that, conceptually, an application for recusal is largely an exchange between the court and the litigant who is apprehensive that his or her right to a fair hearing is under threat. There is hardly room or comfort for that matter, and self-evidently so, for the adversary litigant to fight in the corner of the court and show, by way of submissions or evidence, that the court is not biased towards it or does not have some interest in the matter: see Associated Newspapers of Zimbabwe (Pvt) Ltd & Anor v Diamond Insurance Company (Pvt) Ltd 2001 (1) ZLR 226…,.

Having made the observation, we remain grateful for the submissions that were made on behalf of the applicant.

But, the above is not all.

The law of recusal is not concerned solely with the rights of the apprehensive litigant. It is concerned with the fairness of the hearing in its totality.

It therefore stands to reason, that, the law of recusal, and the guarantees in section 69(2) of the Constitution, require some degree of reciprocity of fairness and good faith from the apprehensive litigant. In other words, a litigant alleging a violation of his or her right to a fair trial must not have created or contributed to the dire circumstances that he or she finds himself or herself in.

Put differently, the application for recusal must be brought on genuine grounds and must not be contrived merely for the purposes of embarrassing the court.

But, above all, the apprehensive litigant must bring the application for recusal on tenable positions at law. The application must be based on sound and sustainable positions at both the adjectival and the substantive law.

Applying the law then to the facts of this matter:

Firstly, it is common cause in casu, that, the third respondent did not give any prior notice that he intended to sue all the judges of this Court as is required by the Rules of the High Court 1971.

Thus, Rule 18 of the High Court Rules was not complied with.

This is a procedural rule that is not dependent on the cause of action intended to be brought. Its purpose is not only to give the judge concerned notice of the intended suit, but, to also act as a sieve. It has a gate-keeping function that keeps unmeritorious suits out of court.

We deal with this aspect in greater detail later in the judgment.

Secondly, it is further common cause, that, the third respondent did not, and correctly so, allege that any of the judges of this Court, in their respective capacities as Acting Constitutional Court judges, or as substantive judges of this Court for that matter, had exercised the option, as had the Chief Justice, to continue in office for an additional five years after they each attained the age of seventy.

Perchance, for a myriad of reasons, some of the judges may not exercise the option.

Clearly, there was no evidence placed before the High Court that one or more of the judges had an intention of so doing at the time the application a quo was filed.

A necessary and material averment to complete the cause of action against the judges, other than the Chief Justice, was therefore missing.

Thus, whilst the cause of action against the Chief Justice may have been complete, it was not in respect of the other judges - even for the declaration of any future or contingent rights of the judges.

In the absence of a sustainable cause of action against the judges, the citing of the judges and the order sought against them was not only unwarranted but was also incompetent and undeserved.

Thirdly, we observe, common cause as it is, that, although the two applications a quo were brought on a certificate of urgency, such urgency was not demonstrated regarding the issuance of the second part of the order.

The third respondent made no averment in his application that the judges had indicated, by word or by deed, that they were about to exercise the option to remain in office for an additional five years at the same time that the Chief Justice did, or immediately thereafter.

It was clearly not the position of the third respondent a quo that the harm sought to be cured or arrested by the second part of the order a quo was imminent or needed the urgent attention of the court.

Fourthly, there is a discernible disconnect between the manner in which the judges were cited and the relief that was sought against them. Whilst the judges of this Court were cited nomine officio as Supreme Court judges, albeit acting as Constitutional Court judges, the relief sought was claimed against them personally and individually. Indeed, the order sought has since followed them individually and collectively to this Court.

Furthermore, we emphasise the point, that, at the time when the orders a quo were handed down, i.e. on 15 May 2021, five of the judges of this Court were substantive judges of the Supreme Court while acting as judges of the Constitutional Court. Subsequently, they were appointed as substantive judges of this Court on 20 May 2021, after section 186 of the Constitution was amended and after the above-mentioned orders were handed down.

Consequently, as of that date, the judgment and orders a quo would have ceased to have been applicable to or binding upon them in their personal capacities. There was therefore no legitimate basis for seeking their recusal in the present matter as their personal rights and interests, then or in the future, could no longer have been in issue.

Finally, and, in any event, an interpretation of section 186 of the Constitution in a suit against the Chief Justice alone would have been binding on all other similarly circumstanced judges.

This is a trite position at law.

The relief sought a quo was an interpretation of the Constitution which is binding on all persons as it is a declaration of what the law is. There was thus no need to cite, in addition to the Chief Justice, the judges of this Court, or any other judge for that matter, in the application a quo.

On the basis of the above, we venture to suggest, that, the legally inelegant citation of the judges a quo, and the subsequent application for the recusal of this entire Bench on the basis of such, was not made in good faith but merely to place this court in an exceedingly embarrassing position.

We find, therefore, that, the citing of the judges of this Court, a quo, was both procedurally and substantively maladroit.

Because of the number of procedural and substantive law lapses and errors that were attendant upon it, such citing cannot be a basis for the recusal of the judges of this Court.

The recusal of this Court cannot be granted on the basis of an untenable legal position.

To seek the recusal of the entire court on an untenable legal position is synonymous with seeking the recusal on no grounds at all.

It makes the application frivolous.

We further observe in this regard, that, when questioned as to which persons should properly constitute the Bench to hear the merits of this matter, in the event that all the incumbent judges of the Constitutional Court and Supreme Court were to recuse themselves, and which authority could be called upon to legitimately appoint such persons to that Bench, both counsel for the respondents were studiously unable to enlighten the Court with any meaningful answers to those very pertinent questions.

In Bernert v Absa Bank 2011 (3) SA 92 (CC), NGCOBO CJ repeated the position earlier on taken by that court in President of the Republic of South Africa and Others v South African Rugby Football Union and Others 1999 (4) SA 147 (CC), that, the judicial function, together with the oath of office that judges subscribe to, creates a presumption of impartiality in favour of the Constitutional Court.

By the same reasoning as emerges from the South African cases, there is a presumption of impartiality in favour of this Court, for we do carry out similar judicial functions and subscribe to a similar oath.

It is our finding, that, in casu, the presumption that this Court is impartial was not displaced.

Had the application for recusal been validly taken, we may have proceeded to determine whether the common law doctrine of necessity, an exception to the nemo judex in sua causa principle, was of any application.

It is not necessary that we encumber this judgment with a discussion of the principle and its applicability in this jurisdiction. Suffice it to say, that, where it is applicable, it operates to obviate a situation of administrative or judicial paralysis where no person other than the biased decision maker can make a decision in the matter.

For the above reasons, we dismissed the application for recusal.

PATEL JCC: It is pertinent, at this juncture, before addressing the substance of the matter, to make an observation concerning the conduct of the third respondent (Musa Kika).

Even though he was primarily instrumental in initiating the proceedings a quo, he deliberately chose not to address any issue other than that of recusal; either in his opposing affidavit or in his heads of argument.

Equally curiously, at the end of the proceedings on the question of recusal, he and his counsel elected not to appear in any further proceedings before the Court. In the event, the matter proceeded in the absence of the third respondent and without the benefit of his submissions on the substantive merits of the matter.

It also follows, that, the requirement of prior leave to sue, stipulated by Rule 18 of the High Court Rules, remains fully operative and enforceable in relation to any application made in terms of section 85 of the Constitution.

Additionally, it is necessary to underscore the point that access to this Court or any subordinate court under section 85 of the Constitution is subject to regulation by rules of court. This is made explicitly clear by section 85(3) which dictates that the rules of every court must provide for the procedure to be followed in cases where relief is sought under section 85(1). It is also spelt out in section 167(5) of the Constitution vis-a-vis direct access to the Constitutional Court.

One cannot institute an action or application in the High Court, or any other court, without due observance of and compliance with the Rules of that court.

The Rules inform a litigant of what is required of him to access the court concerned. If he fails to observe or comply with those Rules, he will inevitably be non-suited.

To conclude this aspect of the matter, I am satisfied, that, the proceedings a quo were fatally defective and constitute a nullity for failure to comply with Rule 18 of the High Court Rules and consequential lack of jurisdiction by the court a quo.

That, however, does not signal the end of the matter.

The question that remains is whether or not, despite the nullity of those proceedings, this Court should nevertheless proceed to canvass the merits of the application before us.

I am of the considered opinion, that, it is necessary for the Court to address and determine the merits of the application for the following very compelling reasons:

(i) First and foremost, it cannot be disputed, that, the matter is one of paramount public importance.

Whether or not the incumbent Chief Justice should continue in office to perform the functions of that office for a further 5 years is undoubtedly a question of critical public significance. The publicity surrounding that question bears ample testimony to that fact. By the same token, it is equally important that the possible extension of tenure availed to other senior judges by section 186 of the Constitution be resolved in order to obviate future controversy in that regard.

The obvious objection is that the substantive correctness of the judgment a quo is currently pending before the Supreme Court on appeal from the court a quo.

In my view, however, the pendency of that appeal, and the possibility of its being pre-empted should not detract from the over-arching supervisory jurisdiction of this Court, by virtue of section 167(3) of the Constitution, in critical constitutional matters.

Ultimately, it is this Court that makes the final decision as to whether or not any law or conduct of the President or Parliament is constitutional. And, it is this Court that must confirm any order of constitutional invalidity made by another court before that order has any force or effect.

In exercising its jurisdiction under section 175(3) of the Constitution, the Constitutional Court is not confined to purely procedural or preliminary issues that may arise for determination. In confirmation proceedings, the Constitutional Court is duty-bound to adjudicate all the relevant issues. These include not only the procedural propriety of the proceedings a quo, but, also, more importantly, the juridical correctness of the substantive findings of the subordinate court.

Moreover, section 176 of the Constitution endows this Court with the inherent power to protect and regulate its own process, taking into account the interests of justice and the provisions of the Constitution.

In all the circumstances, I am of the firm view, that, this Court should proceed to address and determine the merits of this matter, not only in order to bring it to finality but also in the interests of justice.

The Constitutional Court is a specialised court whose jurisdiction is limited to strictly constitutional matters, as outlined in section 167(1)(b) of the Constitution.

This emphasis, on the existence of a constitutional question, is reinforced in the rules that govern access to this Court. The relevant rules in this regard are Rule 35, which governs applications for condonation and extension of time, and Rule 32 which deals with the substance of the prospective application for leave to note an appeal should the Court accede to the request for condonation.

Rule 32(2) of the Constitutional Court Rules provides the following on the right of appeal to this Court:

“(2) A litigant who is aggrieved by the decision of a subordinate court on a constitutional matter only, and wishes to appeal against it to the Court, shall, within fifteen days of the decision, file with the Registrar an application for leave to appeal and shall serve a copy of the application on the other parties to the case in question, citing them as respondents.”…,.

The requirement of the existence of a constitutional matter, as an imperative, is further highlighted by the succeeding Rule 32(3) of the Constitutional Court Rules which mandates that an application for leave to appeal to this Court must contain or have attached to it a statement setting out clearly and concisely the constitutional matter raised in the decision sought to be appealed against.

In addition, the founding affidavit supporting the application must verify the fact, that, the cause of action arises from a decision of the subordinate court premised on a constitutional matter.

Therefore, it is axiomatic, that, where the subordinate court has not determined a constitutional issue, a litigant has no right of appeal to this Court.

Access to the jurisdiction of this Court unavoidably hinges upon the existence of this juridical fact.

It is unarguably the sine qua non of any approach to the specialised forum of the Constitutional Court.

The applicant's counsel pinpointed section 26(c) of the Constitution, which was referred to in the impugned judgment, as establishing a basis for petitioning this Court.

Counsel for the applicant submitted, that, the Supreme Court violated the import of equality in respect of the rights of the parties at the dissolution of their marriage in applying the principles enunciated in the Matrimonial Causes Act.

This position was countered by counsel for the respondent who insisted, that, the Supreme Court disposed of the matter on a non-constitutional basis.

She cited the case of Chiite & Ors v The Trustees of the Leonard Cheshire Homes Zimbabwe Central Trust 2017 (1) ZLR 603 (CC) to support the contention, that, a prospective appeal to this Court ought to be premised on a constitutional question that was determined by the lower court. She pointed to the prospective grounds of appeal as being devoid of any meaningful constitutional challenge.

It is an established position in our jurisprudence, that, mere reference to the Constitution by a subordinate court does not establish a constitutional issue.

In casu, the application for condonation, and the attached draft application for leave, fail to meet the essential requirement of a constitutional matter as obligated by the Constitution and the Rules.

The applicant's founding affidavit does not set out the constitutional matter that was determined by the Supreme Court.

The applicant seems keenly aware of this fact as evidenced by the poverty of his flimsy reference to section 56 of the Constitution in his papers in seeking to establish a basis for invoking the jurisdiction of this Court.

Furthermore, the attempt to latch onto section 26(c) of the Constitution, in the course of submissions by counsel for the applicant, is irreconcilable with the applicant's pleadings.

The founding affidavit and the draft application for leave are patently devoid of any mention of the specific manner in which the Supreme Court is alleged to have violated the rights protected under that constitutional provision.

This Court, in The Cold Chain (Pvt) Ltd t/a Sea Harvest v Makoni 2017 (1) ZLR 14 (CC), clarified the parameters of a constitutional matter as follows:

“The mere reference to the Constitution did not make what was said a constitutional matter. Reference by the Supreme Court to section 176 of the Constitution was an obiter dictum. The Constitution was referred to after the ratio decidendi had been arrived at and declared by the court. The effect of what the Court said in relation to section 176 of the Constitution was that its reasoning was not inconsistent with the provisions of that section. That is different from saying the decision on the issues before the court were based on the interpretation and application of section 176 of the Constitution.

It follows, that, where a subordinate court did not take a view of the case that required it to interpret and apply a constitutional provision to determine the issue raised, the matter does not pass for a constitutional matter.

Application for leave to appeal will be dismissed as the subordinate court will have rested its decision on an independent non-constitutional ground.”…,.

The above position was reiterated in Madyavanhu v Saruchera & Ors 2019 (1) ZLR 434 (CC)…, wherein the following was observed regarding the right of appeal to this Court:

“A person has a right to appeal against a decision of a subordinate court on a constitutional matter only. A decision of a subordinate court on a non-constitutional issue is unappealable because the Court has no jurisdiction to review such a decision. The purpose of the procedure of an application for leave to appeal, provided for in Rule 32(2) of the Rules, is to show that the Court has jurisdiction, as provided for in the Constitution, to hear and determine the appeal. In other words, the purpose of the procedure is to ensure that the applicant has a right of appeal to the Court against the decision of the subordinate court.”

From the above-cited authorities, it is evident that an application for leave to note an appeal against the determination of a lower court in the Constitutional Court hinges upon the existence of a constitutional matter.

The present application for condonation and extension of time cannot be granted as the prospective application for leave to appeal fails to satisfy the threshold for accessing the jurisdiction of this Court. The reference, by the court a quo, to the concept of equality, enshrined in section 26(c) of the Constitution, was purely tangential and not in any way dispositive of the main non-constitutional issues determined by that court.

Thus, the absence of a constitutional matter critically undermines the validity of the instant application.

Applicants 1 to 10 (Berrington Zvanyanya, Samuel Jinjika, Nyararai Dembo, Madhuvura Emmanuel, Madzuro Stiriki, Lovemore Muteurwa, Vengai Masungwini, Ngonidzashe Mabina Mudambanuki, Joe Gasva and Masacha Tapiwa) are one faction of a trade union.

Respondents 2 to 6 (Godfrey Katerere, Brawl Chikandiwa, Tavanga Vandirai, Lucia Chirilele and Nokhutula Dube) are the other.

The trade union is the first respondent (Zimbabwe Sugar Milling Industry Workers Union).

The seventh respondent (Tongaat Hulett Ltd t/a Triangle Ltd or Hippo Valley Estates Ltd) is the undertaking or industry in which the trade union is established. It is the employer. It is cited as a nominal party. It did not file any papers, electing to abide by the decision of the court.

Respondents 2 to 6 (Godfrey Katerere, Brawl Chikandiwa, Tavanga Vandirai, Lucia Chirilele and Nokhutula Dube) are members of the National Executive Committee of the trade union.

The applicants allege respondents 2, 3 and 4 (Godfrey Katerere, Brawl Chikandiwa and Tavanga Vandirai) are no longer employees of the seventh respondent (Tongaat Hulett Ltd t/a Triangle Ltd or Hippo Valley Estates Ltd).

For that reason, they allege, these respondents are automatically disqualified from continuous membership of the trade union.

So, the applicants seek two inter-related orders as follows:

(i) That, respondents 2, 3 and 4 are no longer members of the trade union by virtue of the termination of their contracts of employment with the employer; and

(ii) That respondents 2, 3 and 4 are disqualified from holding positions in the trade union's National Executive Committee.

The applicants also seek two inter-related orders in respect of the trade union.

They want it to hold elections to choose members of its National Executive Committee and to hold Annual General Meetings in terms of its Constitution.

Costs of suit are sought against respondents 2, 3 and 4 on an attorney-client scale....,.

With regards the non-holding of general elections, the respondents argue that the issue has been relegated to the periphery owing to the endless legal fights that have dogged the trade union. But plans are underway to hold the general meetings....,.

This judgment is given in default of appearance by the respondents. I am much concerned by the conduct of the officials from the office of the Attorney General, the second respondent herein.

This was an opposed application.

The respondents, through the Attorney-General, filed a notice of opposition. The record indicates, that, the notice of set down was served personally on one Talent Undenge, the law officer in the Attorney General's office who runs its civil division at Masvingo. But, on the day of hearing, not only was there no appearance by anyone from the Attorney General, but, also, there was not a word or any advice on what the respondents position was. Yet the relief sought by the applicant has far reaching consequences.

The relief sought by the applicant has far reaching consequences in that he wants a declaration of constitutional invalidity of section 93(5a) of the Labour Act [Chapter 28:01] and section 8(3) of the Labour (National Employment Code of Conduct) Regulations 2006, S.I.15 of 2006 (“the National Employment Code of Conduct”).

The applicant says that section 93(5a) of the Labour Act violates section 68(3) and section 69(2) of the Constitution; that, section 8(3) of the National Employment Code of Conduct violates the right to the protection of the law as guaranteed by section 56(1) of the Constitution and that both section 93(5a) of the Labour Act and section 8(3) of the National Employment Code of Conduct contravene section 134(b) of the Constitution.

As such, he wants his case referred to the Constitutional Court for final determination, allegedly in terms of section 167(3) of the Constitution.

In simple terms, section 93(5a) of the Labour Act, a recent amendment to the Labour Act (i.e. in 2015), empowers a labour officer to apply to the Labour Court for the enforcement of his or her determination against an employer.

Only the employer gets cited in such an application.

For that, the applicant says, the provision discriminates against employees, something contrary to section 68 and section 69 of the Constitution. These two provisions of the Constitution guarantee to every person the right to administrative justice and to a fair hearing.

As for section 8(3) of the National Employment Code of Conduct, the applicant wants it struck off on the ground that it contains a typographical error in that it refers to a non-existent provision. He says because of it, he became non-suited in his dispute against his employer. Yet, section 56(1) of the Constitution guarantees to everyone the right to equal treatment and protection before the law.

On the other hand, section 134(b) of the Constitution does not permit a statutory instrument (such as the National Employment Code of Conduct) to infringe or limit any of the rights and freedoms set out in the Declaration of Rights.

The Constitution is the supreme law of Zimbabwe. No other law can say something to the contrary and remain valid. The courts have the power and mandate to declare a statutory provision as being inconsistent with the Constitution. But, this function is not a light matter. It is not a power that is exercised arbitrarily. Laws are made by Parliament, a legislative body made up of two Houses. The men and women who sit in them take time to scrutinise, debate, and critique a law before it is passed. It is only in cases where the court is completely satisfied that a particular law is at war with the Constitution that it will strike it down.

In this case, with the respondents in default, I could have simply granted a default judgment and announced it ex tempore on the day of hearing. But, given what is at stake, I considered it prudent to reserve my decision and think through it properly, moreso as the applicant was not represented.

Even though it was evident someone with a glimpse of legal knowledge was advising and drafting the papers for the applicant behind the scenes, it was not that easy to quite grasp the factual matrix of the dispute and its trajectory from the moment it arose.

I ended up asking the applicant to file supplementary papers on what exactly had transpired, both at the workplace and in the labour “courts.”

The matter is an employment dispute. It has a chequered past.

The dispute erupted at the workplace. It bobbed there for a while. Eventually, it bounced into the chambers of the Labour Officer. From there, it escalated to the Labour Court. After that, it became a game of ping pong. The matter was thrown back to the labour office; back to the Labour Court; back to the labour office again; back to the Labour Court; back to the workplace; back to the labour office; back to the Labour Court; and, finally to the Supreme Court.

The superior court did not decide the matter. The applicant felt unstuck. He finally came to the High Court.

I heard the applicant on 27 August 2018. He tried his best. But, at the end, I was none the wiser. The employer was not cited as a party. As said already, the Attorney-General was in default. He and the first respondent had been barred anyway for failure to file heads of argument in accordance with Order 32 Rule 238(2) and (2a) of the Rules of this Court.

But, in a matter with such a rugged past, and given the nature of the relief sought, I could do with some properly reasoned arguments and a graceful presentation. Yet, the applicant is entitled to administrative justice in terms of section 68 of the Constitution.

Rule 238(2b) of the High Court Rules says, where a respondent fails to file heads of argument timeously he or she is barred. Thereafter, the court or judge may deal with the matter on the merits or direct that it be set down for hearing on the unopposed roll.

I opted to hear the matter on the merits.

The facts were these:

In the beginning, the applicant was an employee of a trade union, the Zimbabwe Educational Scientific, Social and Cultural Workers Union. He was a Regional Officer based at Masvingo. He was dismissed for misconduct. The dismissal followed a disciplinary process in terms of the National Employment Code of Conduct.

The applicant wanted to appeal the dismissal. He said he faced a dilemma. The dilemma stemmed from what he perceived to be a typographical error in the National Employment Code of Conduct.

Evidently, there is such an error in those Regulations.

Section 8 of the National Employment Code of Conduct governs appeals at, and from the workplace. It provides for internal appeal structures at the work-place in the form of an Appeals Officer or Appeals Committee, depending on the size of the establishment or work place. Such internal appeal structures should not exceed two appeal authorities.

In terms of section 8(3) of the National Employment Code of Conduct, a person aggrieved by a decision can appeal, in writing, and within seven working days, to the Appeals Officer or Appeals Committee.

There is a problem with this sub-section.

It is imprecise. It does not say whose decision is appealable to the Appeals Officer or Appeals Committee. It says it is a decision “…, made in terms of section (2)…,.”

But, section (2) does not exist.

The substantive section 2 is an interpretation provision. It has nothing to do with disciplinary proceedings. Disciplinary proceedings, such as would lead to the termination of employment, are governed by section 6 of the National Employment Code of Conduct. So, section 2 cannot be the provision section 8(3) of the National Employment Code of Conduct purports to refer to.

At any rate, it is a technique of legislative drafting not to use brackets for numerals representing substantive, standalone sections in statutes.

So, if the reference in section 8(3) of the National Employment Code of Conduct cannot be to a substantive section 2, one would assume it is meant to refer to section 8(2) of the National Employment Code of Conduct. But, again, that cannot be. Section 8(2) does not deal with disciplinary processes. It is the one that provides for the internal appeal structures that should not exceed two authorities.

The applicant says, faced with such a dilemma, he looked elsewhere. He discovered that section 8(6) of the National Employment Code of Conduct is another provision dealing with appeals. That provision says a person who is aggrieved by a decision or manner in which an appeal is handled by the employer or the Appeals Officer or Appeals Committee may refer the case to a Labour Officer or an Employment Council within seven days.

The applicant says he considered it was section 8(6) of the National Employment Code of Conduct that applied to his situation because section 8(3) referred to a non-existent provision.

At any rate, his employer had no appeal structures as envisaged by the National Employment Code of Conduct. He referred his case to the Labour Officer the same day that he received the dismissal penalty.

That was in March 2015.

In terms of section 8(7) of the National Employment Code of Conduct, a Labour Officer, to whom a matter is referred in terms of section 8(6), can dispose of it in one of several ways set out in section 93 of the Labour Act. Before this section was amended in 2015, these ways included conciliation or a reference to compulsory arbitration. The Labour Officer had thirty days to dispose of the matter. It was through the amendment in 2015 that the Labour Officer was now clothed with the power to approach the Labour Court as aforesaid.

After the applicant had referred his dispute, the Labour Officer, for one reason or other, did not dispose of it within the prescribed thirty days. Two months after the expiry of the thirty days, the applicant applied to the Labour Court, asking it to dispose of his appeal in terms of section 93(7) of the Labour Act.

That was in May 2015.

Section 93(7) of the Labour Act is the provision that allows any party to a dispute to approach the Labour Court to dispose of it where a Labour Officer has failed to settle it through conciliation and has issued a Certificate of No Settlement, or has, for any reason, refused to issue such a certificate.

The Labour Court, four months later, referred the matter back to the Labour Officer with instructions to appoint an arbitrator to dispose of the applicant's appeal.

That was in September 2015.

That did not happen, apparently for two reasons:

(i) Firstly, the first respondent was phasing out the system of external arbitrators. As such, the applicant was advised, that, no arbitrator could be appointed in line with the directive from the Labour Court.

(ii) Secondly, the Labour Act had just been amended as aforesaid.

Among others, the said section 93(5a) of the Labour Act had just been inserted. Disputes of right, as opposed to disputes of interest, would now be resolved in accordance with the new provisions. Among other things, once a Labour Officer made a finding of unfair labour practice against an employer, he or she would have to approach the Labour Court for his or her decision to be confirmed.

The matter was referred back to the Labour Court, by a Labour Administration Officer, who requested for directions.

In March 2016, the Labour Court gave such directions.

It directed that the matter was to be heard by a Labour Officer in terms of section 93(5)(c) of the Labour Act. This is the provision that empowers a Labour Officer to find whether or not an employer is guilty of an unfair labour practice. If he or she makes such a finding, he or she can, among other things, order the cessation of the unfair labour practice and direct the payment of moneys and/or damages.

With the newly introduced section 93(5a) of the Labour Act, the Labour Officer is then to approach the Labour Court for confirmation of his or her decision.

The Labour Officer eventually set to hear the matter in line with the directive from the Labour Court.

In May 2016, he gave his ruling. He made a finding that he had no jurisdiction to determine the appeal. His reason was, that, the first time the applicant had referred his appeal to the Labour Officer (in March 2015) he had erred. He said in terms of section 8 of the National Employment Code of Conduct, no appeal lies to the Labour Officer from a decision of a disciplinary authority at the workplace. It is only an appeal, decision, or the conduct of an appeal authority that may be referred to the Labour Officer.

So, in the end, the Labour Officer held, that, he had no jurisdiction to determine the appellant's appeal because it was not an appeal against an appeal decision, but an appeal against the decision of a disciplinary authority in the first instance.

Before this ultimate conclusion, the Labour Officer had made the observation, that, instead of appealing to the Labour Officer in terms of section 8 of the National Employment Code of Conduct, as he had done, the applicant ought to have appealed straight to the Labour Court, allegedly in terms of section 92D of the Labour Act.

Section 92D of the Labour Act is the one that governs appeals to the Labour Court that are not provided for elsewhere in the Labour Act. It says a person who is aggrieved by a determination made under an employment code, may appeal to the Labour Court in the manner and time prescribed.

In September 2016, the Labour Court confirmed the ruling of the Labour Officer.

But, the applicant had applied to that court for condonation for late noting of appeal. Condonation was refused “…, for failure to exhaust local forum.”

The applicant went back to the workplace. He said heeding what the Labour Officer had said about appeals lying to them only from an appeal decision by, or conduct of, an appeals authority of the employer, he filed an appeal to the Appeals Officer/Appeals Committee a day after receiving the Labour Court's decision.

He also sought condonation for the late noting of the appeal. But, without referring it to the Appeals Officer or Committee proper, the employer, through the General Secretary, acting on external legal advice, dismissed the appeal and the request for condonation on the basis that there was no provision for an application for condonation in the National Employment Code of Conduct.

That was in October 2016.

The applicant appealed to the Labour Officer. He lost. The conclusion reached by the employer's General Secretary was upheld.

The Labour Officer took his decision to the Labour Court for confirmation, purportedly in line with the new section 93(5a) of the Labour Act.

The Labour Court declined to do so on the basis, that, the Labour Officer had an inherent power to hear an application for condonation which he should have exercised and that the decision by the employer, which the Labour Officer had wrongly upheld, was irregular in that it had been made by a fellow employee supplanting an Appeals Committee.

The Labour Court referred the matter back to the workplace and directed the employer to set up an appeals structure for the determination of the applicant's appeal within thirty days, or such extended period as might be granted. The Labour Court also directed, that, in the event that the employer failed to hear the appeal as directed, then, the applicant would automatically be reinstated without loss of salary and benefits while the parties might be taking their case to any next level.

That was in May 2017.

The employer was aggrieved by the decision of the Labour Court. It appealed to the Supreme Court. It took a point in limine, that, by section 93(5a) of the Labour Act, only when a Labour Officer has ruled against an employer is he or she required to approach the Labour Court for confirmation of his or her decision, not, as was the case in this matter, where the Labour Officer has ruled against the employee.

The applicant said he conceded the point in limine. He presumed the Supreme Court would uphold it because it had done so in a previous case where the same point had been raised.

The applicant felt he was back to nowhere.

His appeal was never determined on the merits.

He felt the culprit was section 93(5a) of the Labour Act that allows approaches to the Labour Court by a Labour Officer only where he or she rules against the employer, but not where he or she rules against the employee.

The employee who loses before a Labour Officer has nowhere else to go, whereas an employer who loses before the same Labour Officer is actually and automatically guaranteed another hearing before a court.

The applicant also felt, that, the ambiguity brought about by the error in section 8(3) of the National Employment Code of Conduct blocked his right of access to the courts.

He then turned to the High Court for an order of invalidity against the two offending provisions.

Interestingly, in their notice of opposition, the respondents agreed with the applicant in relation to section 93(5a) of the Labour Act. They said:

“Respondent concedes to the challenges against 93(5a) of the Labour Act [Chapter 28:01] as amended and has since sought to repeal the provision in its current Labour Act Amendment Bill. I however deny that section 8(3) of Statutory Instrument 15 of 2006 violates the Applicant's rights for the reasons advanced in my paragraphs 9 and 10.”

But, despite their denial in regards to section 8(3) of the National Employment Code of Conduct, the respondents essentially conceded the error. They said:

“Indeed, the said section makes reference to a section 2 which is not there; but, however, a departure from the ordinary grammatical interpretation of the section will lead to a reasonable conclusion that the section being referred to is section 6.”

Arguing that a diligens paterfamilias applying their mind to the intention of the Legislature would have come to the logical conclusion that section 8(3) of the National Employment Code of Conduct meant to refer to section 6, the respondents said the remedy sought by the applicant was outrageous and should therefore be dismissed with costs.

Justice must not only be done. It must also be seen to be done.

The respondents openly admit inherent problems or errors in pieces of legislation made by, and administered by them.

In relation to section 93(5a) of the Labour Act, the respondents promised repeal. That has not happened.

In relation to section 8(3) of the National Employment Code of Conduct, the respondents expressly admit the error but urge the applicant to resort to some tenet of construction to unravel what they meant to say.

Yet, in his quest for justice, the applicant has, for more than three years, been shunted from pillar to post by the administrative and adjudication structures under their purview. These structures have differed in their interpretation of the impeached provisions.

What is more, as the respondents are mulling getting rid of section 93(5a) of the Labour Act, the Supreme Court, in an unrelated case, the judgment of which was delivered at about the same time the applicant was filing this application with this court, has impugned the provision and urged the Legislature to have a look at it.

This was in Drum City (Pvt) Ltd v Garudzo SC57-18.

The superior court noted, that, section 93(5a) and (5b) of the Labour Act do not empower the Labour Court to confirm a draft ruling of a Labour Officer made against an employee. The employee is excluded from the confirmation proceedings. Yet, he or she has a direct and substantial interest in those proceedings.

He or she has a right to be heard.

The superior court further said, that, a procedure that says a Labour Court can sit for the confirmation or non-confirmation of a ruling by a Labour Officer, in the absence of an employee, who is an interested party, is an irregularity and a travesty of justice.

The court noted a myriad of problems posed by such a procedure, not least:

(i) The fact that even where the ruling by the Labour Officer is in favour of the employee, but is not confirmed by the Labour Court, the employee who is affected by the non-confirmation cannot appeal. Conversely, where the Labour Court confirms the ruling, the employer may wish to appeal to the Supreme Court, but, the employee is necessarily absent. Yet the outcome at the Supreme Court may be adverse to the employee.

(ii) The fact that even where the Labour Court confirms the ruling against the employee and he or she wants to enforce it by execution, the writ cannot be in his or her name because that name appears nowhere in the final orders.

As a way around the absurdities created by section 93(5a) of the Labour Act, the Supreme Court suggested, that, the employee should always be joined as a party to the confirmation proceedings before the Labour Court. However, the superior court also urged the Legislature to seriously reconsider the provision - exactly the same thing the respondents herein have promised they are doing.

Therefore, it seems obvious that section 93(5a) of the Labour Act is impeachable. The respondents concede it. The Supreme Court virtually confirms it.

The question of the declaration of constitutional invalidity of section 93(5a) of the Labour Act and section 8(3) of the National Employment Code of Conduct was not before the Supreme Court.

It is squarely before me now.

I hold that section 93(5a) of the Labour Act is ultra vires section 56(1) and (3) of the Constitution that guarantee the equality of all persons before the law, and the right not to be treated in an unfairly discriminatory manner on the grounds of, inter alia, economic or social status.

It also violates section 68 of the Constitution that guarantees the right to administrative justice that is, inter alia, lawful, efficient, reasonable, impartial and both substantially and procedurally fair.

The applicant says he seeks the declaratur in terms of section 14 of the High Court [Chapter 7:06].

But, in terms of this provision, a declaratur, it is not sought by anyone and anyhow; otherwise, any public busybody or watchdog whose hobby it is to surf the legislative landscape for any statutory provisions mis-aligned with the Constitution would clog the judiciary with endless suits for declarations of constitutional invalidity.

A mover for a declaratory order, under section 14 of the High Court Act, must demonstrate more than mere academic interest. The court does not decide abstract or hypothetical questions: see Adbro Investments Co. Ltd v Minister of the Interior & Ors 1961 (3) SA 283 (T)…, and Johnsen v Agricultural Finance Corp 1995 (1) ZLR 65 (S). He or she must show the existence of some tangible and justifiable advantage to himself.

In terms of section 14 of the High Court Act, a person who qualifies to move for a declaratory order is one who has an interest in having his or her existing, future or contingent right or obligation determined even if he or she cannot claim any relief consequential upon such determination…,.

In the draft order, the applicant does not seek the determination of existing or future or contingent rights. He does not seek determination of any rights at all. His woes with his employer are all in the past now.

I do not underrate them. It is only because he has been importunate that the matter is now before this court.

But, under section 14 of the High Court Act, one does not seek a declaratur for the determination of rights existing in the past.

I am mindful that section 14 of the High Court Act does not require that one who seeks a declaratory order should claim any relief consequent upon the determination by the court. But, at least, he or she must have an existing or future or contingent right that the court should, or will determine.

It seems the undisclosed lawyers handling the applicant behind the scenes eventually wisened up to this pitfall. They filed heads of argument, even though as a “self-actor” the Rules do not require the applicant to file any. In the very last paragraph, it is submitted, that, in addition to the relief sought in terms of the draft order, the applicant should be granted a further remedy as follows:

(i) That, in the case of the impugned section 8(3) of the National Employment Code of Conduct, the applicant should be granted the right to file an appeal against the decision of the disciplinary authority to the internal appeals authority; or

(ii) That, in the case of section 93(5a) of the Labour Act, the applicant should have the right to appeal against the ruling by the Labour Officer to the Labour Court.

I consider that the applicant's request in the heads of argument brings him within the purview of section 14 of the High Court Act. His claim in the draft order ceases to be merely academic.

But, even if I should be wrong on this, I consider that section 85 of the Constitution has widened the scope under which a declaratur may be sought if it is in relation to the enforcement of fundamental human rights and freedoms under Chapter 4 Part 4 of the Constitution.

In this case, the rights the applicant alleges have been infringed in relation to himself fall under this part of the Constitution. They are the right to equal protection before the law and the right not to be discriminated against (section 56 of the Constitution); the right to administrative justice (section 68 of the Constitution) and the right of access to the courts or some other tribunals (section 69 of the Constitution).

Section 85 of the Constitution reads:

“85 Enforcement of Fundamental Human Rights and Freedoms

(1) Any of the following persons, namely —

(a) Any person acting in their own interests;

(b) Any person acting on behalf of another person who cannot act for themselves;

(c) Any person acting as a member, or in the interests, of a group or class of persons;

(d) Any person acting in the public interest;

(e) Any association acting in the interests of its members; is entitled to approach a court, alleging that a fundamental right or freedom enshrined in this Chapter has been, is being or is likely to be infringed, and the court may grant appropriate relief, including a declaration of rights and an award of compensation.”…,.

Thus, a right existing in the past which an applicant can show was infringed in relation to themselves can support a claim for a declaratur.

However, my conclusion above is only in relation to section 93(5a) of the Labour Act.

I am not satisfied that it was really the typing error in section 8(3) of the National Employment Code of Conduct that led the applicant to adopt the course that he did.

Despite that error, it is evident, even as presently worded, that the reference of a matter to a Labour Officer that section 8(3) envisages, is not from a decision of a disciplinary authority at the first instance. It is from a decision or conduct of an Appeals Authority on appeal.

It was wrong for the applicant to invoke section 8(6) of the National Employment Code of Conduct and assume it applied to his case.

In the final analysis, the applicant, having sought no order as to costs, the following order is issued:

1. It is hereby declared that section 93(5a) of the Labour Act [Chapter 28:01] is in conflict with section 56(1) and (3); section 68(1) and section 69(3) of the Constitution of Zimbabwe and is therefore invalid.

2. The declaration of constitutional invalidity in paragraph (1) above may be referred for final determination by the Constitutional Court of Zimbabwe in terms of section 175 of the Constitution and the Rules of that Court.

3. Subject to paragraph (2) above, the applicant is hereby granted the right to appeal to the Labour Court, as soon as practicable, the decision of the Labour Officer/Designated Agent, E Muzvidziwa, Esquire, handed down on 9 December 2016.

4. There shall be no order as to costs.

On 23 July 2018, Mr Forward Kapiya (the respondent) of Stand 254 Headlands Location issued summons at Rusape Magistrate's Court against the appellant, Stella Masunga, where he was seeking eviction of the appellant from a commercial Stand No.193, Headlands known as Kapiya General Dealer.

In the summons, he averred that the appellant was his ex-wife and he had since separated with her, and, since she was then co-habiting with other men, she ought to move out of the property.

The defendant filed her appearance to defend, and, on 3 August 2018 she filed her plea. In her plea she contended that the respondent herein was not the owner of the property. She is the one who bought Stand 193 in 2004 and started constructing it alone before customarily marrying the respondent in 2006.

When she married the respondent, in 2006, the shop was about to be roofed.

In 2010, she admitted changing the name from her name to that of the respondent since the respondent was going to marry her. When the appellant changed the names, she did not know that the respondent wanted to grab her shop.

On 12 September 2018, the matter proceeded to trial and both parties led evidence to prove their cases and called witnesses.

After hearing, the court granted eviction against the appellant and ordered her to vacate the premises by 31 December 2018. The order was granted on 19 November 2018.

On 30 November 2018, the appellant noted an appeal against the whole judgment of the magistrate and outlined the grounds of appeal as follows:

“1. The learned Magistrate erred in ordering the eviction of the appellant by 31 December 2018 on Stand No.193 Headlands, despite the following:

(a) The Stand in question belongs to the appellant.

(b) That responsible authority, which is in Makoni Rural District Council, through its representative, Fungai Misi, having been given subpoena, confirmed that appellant is the one who had purchased the said Stand.

2. The learned Magistrate misdirected herself by failing to appreciate the evidence of the responsible authority to the effect that the Stand is registered in appellant's name.

3. The learned magistrate erred and misdirected herself by failing to consider the evidence of the responsible authority to the effect that indeed there was an attempt to do a cession but that was not done because there were issues which needed to be ironed out first.

4. The court failed to appreciate that indeed appellant has a clear right over the Stand hence could not be evicted.

5. The court failed to appreciate that respondent was lying and sought to rely on his evidence.

6. The court erred and misdirected itself in relying with the evidence of a brick moulder.

7. The judgment imposed by the trial magistrate is shocking and should be set aside.

WHEREFORE appellant prays that an order for eviction imposed by the trial magistrate be set aside with costs that she be allowed to carry out her business as the owner of Stand 193 Headlands.”

I have cited the prayer of the appellant to show that it is defective. However, we condoned that defect in the interests of justice and allowed the appellant to argue its appeal.

For the record, the prayer in an appeal should be framed as follows:

“(a) The appeal is upheld with costs.

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

The claim for eviction of the defendant from Stand 193 Headlands is dismissed with costs.”

The appellant's legal practitioner, on the date of hearing, sought the leave of the court to consolidate grounds of appeal 1, 2 and 3 to be represented by ground 1. Effectively, the appellant chose to abandon ground 2 and 3.

The appellant also abandoned ground of appeal 7, though, in counsel's submission, he smuggled it back whilst seeking an order allowing the court to take into account the proprietary right of the appellant over Stand 193 Headlands.

We allowed the consolidation and refinement of the grounds of appeal for there was no prejudice on the respondent.

The grounds of appeal to be dealt with by this court were then 1, 4, 5 and 6.

The appellant submitted, that, Stand No.193 Headlands belonged to her because it is still registered in her name on the papers held by Makoni Rural District Council.

In the appellant's own pleadings filed of record, she unreservedly and voluntarily contended, that, although she is the one who bought the Stand (a fact which is disputed by the respondent herein) she changed ownership in 2010 when she was about to wed the respondent.

To consolidate that commitment towards change of ownership, there are copies of affidavits signed by both the appellant and the respondent and submitted at Headlands District office.

Whether those papers were forwarded to Makoni Rural District Council offices for cession remains, in our view, academic.

The evidence of Fungai Misi was of no effect because the appellant, in her own papers, concedes, that, in 2010, she changed ownership of the Stand to that of the respondent.

The affidavits of cession signed by the appellant were not revoked nor set aside, they remain extant up to this date.

In any case, the court a quo dealt extensively on the evidence of the appellant, more particularly on the aspect of the purchase price.

The appellant, in her pleadings, contended, that, she bought the Stand for ZW$800. She later on changed the purchase price to ZW$8,000.

The purchase price of ZW$800,000, through a cheque paid by the respondent, was the one confirmed by the Rural Council employee and the court a quo justifiably impugned the appellant's evidence on that aspect questioning how and why the appellant conflicted herself on the price if she was the one who purchased the Stand?

This aspect was based on the credibility, and, the trial court believed the respondent.

There is no basis for this court to interfere with that finding of credibility and we find no misdirection on the part of the learned Magistrate.

That element of the purchase price only added weight to the fact, that, the issue of ownership was resolved by the appellant herself on the date she deposed to an affidavit ceding her rights to that of the respondent.

Ground of appeal number 6 denigrates the evidence of the brick moulder.

We fail to see the legal basis for criticising the learned magistrate in placing probative value on that witness's evidence.

The brick moulder, Mr John Rwapungu, was contracted to mould bricks (usually called “home-made”) by the respondent. He agreed and did the work. He also ferried the bricks to the site using an animal drawn cart. There were no developments at the site. The moulder's bricks were the ones which were used by the respondent's builder to construct development at Stand 193 Headlands.

The court a quo accepted the moulder's evidence, and also the respondent's evidence, to the effect, that, the developments at Stand 193 Headlands were effected by the respondent and belongs to him.

We find no misdirection by the learned magistrate.

When all these aspects are considered, cumulatively, the finding by the court a quo, that Stand 193 Headlands was bought by the respondent and developed by him, is unimpeachable, and, in fact, belongs to the respondent.

The appellant had to be evicted from that Stand since she is not occupying it with the permission of the owner, hence the appellant was an unlawful occupier.

The appellant contends, that, she found a clear right and focuses her argument on the issue of registration of that Stand with the local authority, Makoni Rural District Council.

As already ruled, if the appellant had not pleaded change of ownership in her papers, as well as signing affidavits ceding such rights to the respondent, the interpretation of the situation might have been different.

In our view, the intention to cede those rights by the appellant was done voluntarily and had not been reversed.

The respondent's evidence, that, the property is now in his name, has not been challenged in cross examination.

The application before the court a quo was that of eviction and not sharing of property.

The appellant did not counter claim the Stand ownership and does not raise fraud preceding her cession of rights.

We are unable to agree with the appellant's submissions, that, the court a quo failed to appreciate that the appellant had a clear right. On the date the appellant agreed to cede her rights to the respondent, in 2010, the respondent acquired real rights over the Stand.

This ground of appeal has equally no merit.

An examination of the record reflects that the appellant experienced difficulties to prove her case.

She contradicted herself on the aspect of price of the commercial Stand. Whether she bought it for ZW$800 or any other price. Whether she agreed to cede her rights over Stand 193 or still claims same. Whether she developed the subject Stand from the ground.

She struggled to prove and explain all these issues.

It is difficult to comprehend the appellant's arguments as to whom, between herself and the respondent, could be adjudged to be misrepresenting facts.

In any case, the heads of argument filed on behalf of the appellant has failed to highlight details of the respondent's lies.

The pleadings of the appellant materially corroborate and substantiate the respondent's case, and the trial court found the respondent's evidence and testimony credible and held that the respondent, on a balance of probabilities, had managed to prove his case and granted the relief.

We cannot faulter the learned magistrate's reasoning on credibility, and, the appellant has failed to lay facts to advance this ground of appeal.

What is clear from the papers is that the appellant was assigned to go and pay for the Stand in her name without the approval of the respondent. Upon discovery of the situation by the respondent, the parties, for whatever reason, agreed to sign papers where the appellant ceded her rights over the Stand to the respondent. Now that the appellant had separated from the customary union with the respondent, she surreptitiously seeks to have this court redistribute the property.

There is no misdirection on the trial magistrate in dismissing the appellant's defence, and, in our view, there are no merits on the grounds of appeal.

Accordingly, the appeal is dismissed with costs.

This is an action instituted by the plaintiff claiming the following relief which is set out in the summons:

“1. An order declaring that:

(i) The purported sale between first and second defendants for the sale of 100% shareholding in second plaintiff, on or about 12th February 2009, and all actions flowing therefrom, including but not limited to the removal of directors and appointment of new directors; and

(ii) The sale and transfer of Stand 671 Mount Pleasant Township 20 of Lot 57 of Mount Pleasant, commonly known as 3 Justice McNally Close, Mount Pleasant, Harare to 5th defendant represented by 4th defendant, are null and void;

(b) The minor children, Panashe Ralph Rushesha and Tivonge Sacha Rushesha, remain the sole shareholders in 2nd plaintiff; and

(c) The directors of 2nd plaintiff, as at 12 February 2009, remain directors unless lawfully removed or through resignation (sic).

2. An order that:

2.1 4th defendant, or, failing it, the Deputy Sheriff, takes all necessary steps to transfer Stand 671 Mount Pleasant Township 20 of Lot 57 of Mount Pleasant, commonly known as 3 Justice McNally Close, Mount Pleasant, Harare, back into the name of the 2nd plaintiff;

2.2 4th defendant and all those claiming occupation through it vacate 3 Justice McNally Close, Mount Pleasant, Harare within fourteen (14) days from the date of judgment; and

2.3 2nd to 5th defendants, jointly and severally, the one paying the others to be absolved: pay for an assessment and report, within fourteen (14) days of such report, by an independent property expert appointed by the High Court, of 3 Justice McNally Close, Mount Pleasant, Harare of any structural changes or damage, other than fair wear and tear, caused to 3 Justice McNally Close, Mount Pleasant, Harare since 12th February 2009 and the costs of repairs or reconstruction; and

(ii) Pay 2nd plaintiff the amount recommended within thirty days of such assessment.

3. An order barring 6th defendant from transferring the property referred to in 6 (sic) above to any third party until transfer to 2nd plaintiff is concluded.

4. In any event, costs of suit on an attorney and client scale to be paid by 1st to 5th defendants, the one paying the others to be absolved.”...,.

Turning to the merits of the claim, the background to the dispute may be summarised as follows:

The first plaintiff is a medical practitioner of Zimbabwean origin. He is presently resident in the United Kingdom together with his wife and children. He is married to the second witness, Aquilina Rudo Rushesha. They had two sons together before they moved to the United Kingdom, namely, Panashe Ralph Rushesha (hereinafter referred to as “Panashe”) and Tivonge Sacha Rushesha (hereinafter referred to as “Tivonge”).

The first defendant, Alexious Mashingaidze Dera, is his brother-in-law, being a brother to his wife.

When the trial commenced, Panashe Ralph Rushesha had attained majority age, and was, by consent, substituted as the third plaintiff.

The first plaintiff's evidence was that before he went to the United Kingdom he acquired an immovable property known as Stand 671 Mount Pleasant Township 20 of Lot 57 of Mount Pleasant, also known as 3 Justice McNally Close, Mount Pleasant, Harare (hereinafter referred to as “the property”).

He asked the first defendant, who is an accountant by profession, to help him form a company in which the shareholders would be the two children mentioned above.

The second plaintiff is the company which was then established for the benefit of the children.

The reason for incorporating the company, according to the first plaintiff, was to have the immovable property registered in the name of the company.

The directors of the company were to be Acquilina Rudo Rushesha and the first defendant.

The property was duly registered in the name of the second plaintiff and was its only asset.

He stated that the name of the second plaintiff derives from the middle names of his two children. “Ra” is from the name 'Ralph; “Sa” is from the name 'Sacha'; while the “R” comes from their surname, Rushesha.

At the time that the property was acquired Panashe was ten years old while Tivonge was about a year old.

The witness paid the purchase price for the property using his own resources.

When the first plaintiff and his family moved to the United Kingdom, in 2003, they leased the property to the South African Embassy. The first defendant was their contact person on some matters relating to the property, but, the rentals were paid directly into his account.

Thus, the first defendant did not receive any rentals in respect of the property; neither did he spend any money on the property.

In or about June 2010, the first plaintiff and his family discovered that the first defendant had sold shares in the second plaintiff to the second defendant, represented by the third defendant. That discovery was only made when the first plaintiff's wife came to Zimbabwe from the United Kingdom.

They discovered that the shares had been sold for a sum of US$36,350.

Subsequent to the sale of the shares in the second plaintiff, the immovable property was then sold to the fourth defendant, represented by the fifth defendant.

The first plaintiff spoke to the fifth defendant by telephone. The fifth defendant advised him that he had purchased the property from the first defendant.

In that conversation, the fifth defendant admitted that he had known that the property belonged to the first plaintiff's wife.

The first plaintiff stated, that, different amounts were given as to the price at which the immovable property had been sold. Initially, a sum of US$90,000 was mentioned. Later on, a figure of US$125,000 was stated as having been paid for the immovable property.

The first plaintiff denied that he authorised the sale of the shares in the second plaintiff or the sale of the immovable property. He, in fact, still holds the original Deed of Transfer for the property.

The first plaintiff described the improvements on the property.

There is a house with three bedrooms. All three bedrooms have bathrooms and toilets; it has three lounges; a kitchen; and a garage on top of which is a tiled entertainment area. There are two rooms next to the garage which the witness stated that he intended to use as offices. The house is fully alarmed. There is a borehole on the property. The other amenities at the property include a gazebo; a swimming pool; a 75 metre driveway with lights; and car shades which can accommodate three motor vehicles.

The second witness for the plaintiff was Aquilina Rudo Rushesha, wife of the first plaintiff.

She is the mother of the two children, Panashe and Tivonge. She was one of the directors of the second plaintiff company at the time that it was incorporated. She never resigned her directorship. She came to Zimbabwe from the United Kingdom in June 2010. That was when she discovered that the immovable property had been alienated by her brother, the first defendant.

She approached the police to help her access the property. She also approached Gerald Mlotshwa, a legal practitioner. A meeting was held which culminated in an affidavit being prepared and sworn to by the first defendant.

The plaintiffs also called Fortune Tapiwa Chasi who is a relative of the first plaintiff's family.

He testified that he knew both the third and fifth defendants at a personal level. The witness was notified of the sale of the property to the Boka company by the first plaintiff. He spoke to the fifth respondent about the matter. From his conversation with the fifth defendant, the latter knew that the first defendant had borrowed money from the second plaintiff and used the immovable property as security for the loan.

The fifth defendant also stated to him, that, he was aware that the property did not belong to the first defendant but to the first plaintiff.

He also communicated to the third defendant, by telephone and e-mail, about the transactions relating to the immovable property. The third defendant stated to him, that, matters related to that were to be directed to his legal practitioners, and that his affairs should be separated from those of the second defendant.

The last witness called to testify for the plaintiffs was the first defendant, Alexious Mashingaidze Dera.

He was, at all material times, a director of the second plaintiff. As stated above, he is a brother to Aquilina Rudo Rushesha and a brother-in-law to the first plaintiff. Although he was cited as the first defendant he did not enter appearance to defend the matter. He only came as a witness at the instance of the plaintiffs after being subpoenaed to attend.

His testimony was that, in February 2009, he obtained a loan in the sum of US$36,350 from the third defendant in order to finance his business of purchasing sugar from Triangle for resale.

As security for the loan, the witness then entered into an agreement for the sale of the shares in the first plaintiff to the second respondent, a company in which the third defendant has an interest.

The agreement of sale was reduced to writing.

His name is recorded as the seller and beneficial owner of “the 2 issued shares in the company” the second plaintiff.

The memorandum acknowledges that the second plaintiff is the registered owner of the immovable property in dispute.

He stated that he repaid to the second and third defendants an amount of money between US$7,000 and US$10,000 in an attempt to liquidate the debt, but, could not catch up with the increasing interest which was being charged on the amount loaned.

He stated that he had known the fifth respondent as a friend prior to meeting the third defendant. He was introduced to the third defendant by the fifth defendant. He then approached the third respondent for a loan which he was duly given as stated above.

When he was having problems in repaying the loan, the third defendant approached the fifth defendant to inquire as to whether the witness had property which could be sold to raise money to repay the balance outstanding on the loan which had gone up to US$70,000.

Interest was being charged on the outstanding amount every month.

In his evidence, the fifth respondent then went and paid to the third respondent the amount outstanding. At the time that the fifth respondent paid off the amount, it had gone up to about US$90,000. The witness stated, that, the fifth defendant wanted to be paid US$100,000 for having settled the debt owed to the second and third defendants.

He deposed to an affidavit prepared by Mr Mlotshwa, a legal practitioner who had been instructed by the first plaintiff's wife, on 24 June 2010. The affidavit was produced as part of the plaintiff's documents.

The second defendant led evidence through one Simon Charehwa who is its Public Officer.

His evidence was that the second defendant, represented by Frank Buyanga, the third defendant, purchased shares in the second plaintiff from Alexious Mashingaidze Dera, the first defendant.

The witness stated, that, the person who dealt directly with the plaintiff was the third defendant.

He, the witness, was responsible for compilation of the information in the files of the second defendant.

He stated, that, Alexious Mashingaidze Dera handed over to Frank Buyanga share certificates relating to the shares as well as resolutions authorising the sale.

The share certificate, according to the witness, was taken to the United Kingdom.

The rest of the documents were kept in the file at the local office. The witness identified a document at page 7 of Exhibit 2 as the resolution which was given by Alexious Dera to the third defendant.

At the time that the transactions were conducted, he was a Clerk.

In cross-examination, he readily admitted that he was not involved when the agreement between the first defendant and the second defendant, acting through the third defendant, was concluded.

He stated that the shares in the first plaintiff were purchased for US$36,350.

He stated, that, the house in dispute, which was the only asset of the first plaintiff, was sold by the second defendant, to the fourth defendant, for a sum of US$110,000, in September 2009.

He stated, that, he knew the first defendant prior to the transaction relating to the shares of the first plaintiff as he used to render accounting services to the third defendant on a part-time basis.

The fifth defendant gave evidence on his behalf as well as on behalf of the fourth defendant.

He is a director of the fourth defendant which is a family company. He stated that he purchased the immovable property in dispute on 15 September 2009. At the time of the agreement, he was shown a Form CR14 and a Form CR6 and a resolution by one James Nqindi.

According to him, James Nqindi and Frank Buyanga were the directors of the second plaintiff at the time that he purchased the property.

He stated that he first knew the first defendant in 2007. He denied that they were friends, but that he was just someone he knew.

The witness stated, that, he had known the third defendant since 2004. He stated, that, the property was vacant at the time that he purchased it. He indicated to the Court, that, the fourth defendant was prepared to relinquish the property if it was paid back the money it had paid for the property. He stated that he purchased the property from the second plaintiff.

The fourth defendant took transfer of the property in 2010.

He described the main structure on the property as a four-bedroomed house, with four bathrooms, a kitchen, lounge, dining room and an additional lounge or office. There is an outbuilding for employees, as well as a swimming pool and a gazebo. At the time of the purchase, there was, according to him, a derelict tennis court. He removed the tennis court with the intention of resurfacing it. The property, which is about an acre, is walled and gated. The main house is partly a double storey, with a room upstairs. The main bedroom has a dressing area. There is a borehole.

The issues which were referred to trial are set out in the joint pre-trial conference minute as follows:

1. Whether or not a valid agreement of sale of shares, allegedly belonging to the minor children (herein represented by the first plaintiff), was entered into between the first and second and third defendants.

2. Whether or not the changes relating to second plaintiff's directors and shareholders, effected as a result of any such agreement, is valid. If not, whether or not such directors and shareholders should revert back (sic) to the period before the 12th of February 2009.

3. Whether or not the second defendant validly entered into an agreement for the sale of the immovable property, being Stand Number 671 Mount Pleasant Township 20 of Lot 57 of Mount Pleasant with fourth and fifth defendants. If not, whether the registration of title into the fourth defendant (sic) must be set aside and the original deed reinstated.

4. Whether or not the plaintiffs have any claim for damages against the second to fifth defendants arising out of the structural alterations to the immovable property. If they have a claim, what the quantum of damages recoverable is.

5. Whether or not, if the plaintiffs succeed, the fourth defendant should remain in possession of the immovable property on the basis of a lien and until any such claim as it may have (has) been realized.

The question of the validity of the sale of shares to the second defendant must be considered in the context of the nature of the agreement between the first defendant, Alexious Dera, on the one hand, and, on the other hand, the second and third defendants.

If a finding is made that there was no sale, then, the legal consequences of that finding will ensue.

On the other hand, if the conclusion is that there was a sale, the Court will then consider whether such sale can be impeached on the grounds submitted by the plaintiffs.

The plaintiffs case is that the agreement was one of a loan in terms of which money was advanced to the first defendant by the second and third defendants. The shares were, according to the plaintiffs, surrendered to the second and third defendants as security for the repayment of the loan.

In determining the above issues, the Court must look at the evidence in its totality, or as a whole, and not piecemeal.

All the parties agree, that, the second plaintiff's sole asset was the immovable property at 3 Justice MacNally Close, Mount Pleasant, Harare.

They are also agreed that the immovable property is just over an acre in extent.

The developments on the property were described in evidence by both parties, albeit with minor variations. There is a main house and an outbuilding as described above. There is a borehole. The property is walled and has a gate. At the time of the sale, there was a tennis court, the condition of which was contested by the fifth defendant.

The defendants relied on an agreement of sale of shares signed on 12 February 2009 as proof that the second defendant purchased the entire shareholding in the second plaintiff from the first defendant.

In terms of that agreement, the entire shareholding was sold for a sum of US$36,350.

A document was also produced, signed by the first defendant, to acknowledge receipt of a sum of US$36,350 “being the purchase price for the entire shareholding in Rasar Enterprises (sic) (Pvt) Ltd”.

The first defendant's testimony was that the agreement of sale was a disguised loan transaction.

The third defendant, who was the person who was involved in the transactions on behalf of the first defendant did not testify.

That leaves the testimony of the first defendant unchallenged.

No explanation was given regarding the last minute default of the third defendant.

The witness who testified for the second defendant, Simon Charehwa, was not privy to the discussions leading to the agreement. He was only a Clerk at the material time.

In any event, the second and third defendants version does not accord with the probabilities in this case.

A purchase price of US$36,350 for the entire shareholding in the second plaintiff does not stand scrutiny; it being common cause that the transaction would, in essence, be a purchase of the immovable property - which was the only asset of the company.

Matthew Boka stated, that, a vacant piece of land within the area of Mount Pleasant would cost between US$30,000–US$50,000. Simon Charehwa stated, that, the immovable property was “sold” to the fourth and fifth respondents for a sum of US$110,000 some seven months after the second defendant acquired it for US$36,350.

There is no conceivable explanation as to how the value would have trebled within such a short time.

The only reasonable explanation is that the payment was meant to cover the debt owed by the first defendant to the second and third defendants which escalated rapidly because of interest charged.

The time that the multi-currency regime was introduced in the country would not, in my view, explain payment of a sum of US$36,350 for that property.

No evidence was tendered in support of that assertion.

The first defendant stated in his evidence, that, by the time the shares were appropriated by the second defendant, he had paid about US$7,000 towards reduction of the debt.

That assertion was not contested.

Simon Charehwa did not know about that payment.

I have considered, too, that, the parties involved were not strangers to one another.

Frank Buyanga was known to the first defendant after being introduced by the fifth defendant. Simon Charehwa stated, that, he used to see the first defendant “a lot” at the offices of the second defendant where he used to render accounting services to the third defendant on a part-time basis. Matthew Boka was also known to the first defendant prior to that transaction. When he proceeded with the registration of the immovable property, in the name of the fourth defendant, in July 2010, he had already become aware that the transactions were being disputed.

It is not uncommon for parties to enter into disguised transactions, where, as happened in the instant case, property which is given as security is disguised as the subject of a sale.

In the case of Hoffmeyer v Gous (1893) 10 SC 115…, the court remarked as follows:

“There is not a more common device than that by which a pledge is disguised as a sale.”

In such transactions, the approach of the Court is settled.

The court looks at the substance and not the form of a transaction: see Zandberg v Van Zyl 1910 AD 302…,.; MacAdams v Fiandies Trustees 1919 AD 207.

The rationale for that approach is easy to fathom.

Court proceedings are not a game of chess. They are a serious inquiry into and determination of the rights of the participants in the proceedings.

On the facts of this case, I have no difficulty in concluding, that, the agreement between the first defendant and the second and third defendants was not a sale of shares. Instead, the shares were given to secure a loan given to the first defendant by the second and third defendants.

The taking of ownership of the shares by the second defendant makes the transaction a pactum commissorium: see Vasco Dry Cleaners v Twycross 1979 (1) SA 603 (A).

In the case of Chimutanda Motor Spares (Pvt) Ltd v Musare & Anor 1994 (1) ZLR 310 (H)…, this Court, citing with approval a passage from the case of Van Rensberg v Weiblen 1916 OPD 247…, embraced the following definition:

“A pactum commissorium is defined as 'a pact by which the parties agree that if the debtor does not within a certain time release the thing given in pledge, by paying the entire debt, after the lapse of the time fixed, the full property in the thing will irrevocably pass to the creditor in payment of the debt.'”

See also Kufandirori v Chipuriro & Ors 2004 (1) ZLR 74 (H)…,.; Upper Class Enterprises (Pvt) Ltd v Oceaner (Pvt) Ltd & Ors 2002 (2) ZLR 599 (S)…,.

The simple position of the law is that a pactum commissorium is illegal and unenforceable: see Upper Class Enterprises (Pvt) Ltd v Oceaner (Pvt) Ltd & Ors 2002 (2) ZLR 599 (S)…,.; Kufandirori v Chipuriro & Ors 2004 (1) ZLR 74 (H)…,.; Chimutanda Motor Spares (Pvt) Ltd v Musare & Anor 1994 (1) ZLR 310 (H)…,.; Sun Life Assurance Co. of Canada v Kuranda 1924 AD 20…,.

The jurisprudential principles which underpin the unenforceability of a pactum commissorium and the circumstances in which exceptions may be accepted have been the subject of academic and judicial discourse: see Mapenduka v Ashington 1919 AD 343…,.; Chimutanda Motor Spares (Pvt) Ltd v Musare & Anor 1994 (1) ZLR 310 (H)…,.; Oceaner (Pvt) Ltd & Anor v Upperclass Enterprises (Pvt) Ltd & Anor 2001 (2) ZLR 130 (H)…,.; SILBERBERG & SCHOEMANN, The Law of Property 3rd Ed by Kleyn & Boraine; WILLE's Principles of South African Law, 8th Ed…,.

They need no further discussion in casu.

In the light of the settled position of the law, the sale and transfer of shares in the second plaintiff, by the first defendant to the second defendant, was therefore illegal, and, consequently, null and void ab initio.

The illegality necessarily invalidates the Form No. CR14 in terms of which Frank Buyanga, the third defendant, and one James Nqindi were appointed as directors of the second plaintiff.

The fate of the sale and transfer of the immovable property to the fourth respondent, in terms of a memorandum of agreement of sale dated 15 September 2009, is decidedly sealed in the words of LORD DENNING MR in the celebrated case of MacFoy v United Africa Co. Ltd [1961] 3 All ER 1169…,.:

“If an act is void, then, it is, in law, a nullity. It is not only bad, but incurably bad….,. And, every proceeding which is founded upon it is also bad and incurably bad. You cannot put something on nothing and expect it to stay there. It will collapse.”

Accepting the above exposition of the law, the Supreme Court, in Muchakata v Netherburn Mine 1996 (1) ZLR 153 (S), held, that, an act which is void ab initio is “void at all times and for all purposes. It does not matter when and by whom the issue of its (in) validity is raised; nothing can depend on it.”

In short, the sale of the immovable property to the fourth respondent is a legal nullity.

The effect of my conclusion is to dispose of issues 1, 2 and 3 as set out in the joint pre-trial conference minute in favour of the plaintiffs and against the defendants....,.

(i) The purported sale and transfer of shares in Rasar Investments (Private) Limited, by the first defendant, to the second defendant, is hereby declared to be illegal and null and void ab initio.

(ii) The Form No. CR14 presented for filing with the Registrar of Companies by Mutamangira & Associates, on 11 February 2009, in terms of which the third defendant and James Nqindi were appointed as directors of the second plaintiff, is hereby declared to be null and void ab initio and the directors of the second plaintiff, prior to the filing of that Form, are hereby declared to be in office.

(iii) The sale and transfer to the fourth defendant of the immovable property known as Stand 671 Mount Pleasant Township 20 of Lot 57 of Mount Pleasant, otherwise known as 3 Justice McNally Close, Mount Pleasant, Harare, is hereby declared to be null and void, and is set aside.

(iv) The Deed of Transfer in terms of which Stand 671 Mount Pleasant Township 20 of Lot 57 of Mount Pleasant is registered in the name of the second plaintiff is hereby declared to be valid.

(v) The Sheriff is hereby directed to sign all documents necessary to reinstate ownership of the immovable property described in paragraph 4 hereof to the second plaintiff.

(vi) The fourth and fifth defendants, and all persons claiming occupation through them, be and are hereby ordered to vacate Stand 671 Mount Pleasant Township 20 of Lot 57 of Mount Pleasant, otherwise known as 3 Justice McNally Close, Mount Pleasant, Harare, within fourteen days from the date of service of this order, failing which the Sheriff be and is hereby directed to take all steps necessary to eject them from the property.

This is an urgent chamber application for stay of execution pending the determination of an application for rescission of judgment.

The certificate of urgency was signed by Mr. Takunda Samuel Gumbo, who stated that the applicants property had been attached by the second respondent, at the instance of the first respondent, and that, the applicants stood to be irreparably prejudiced if the relief sought was not granted.

Goods were attached on 29 June 2015 and the application was filed a day later. Execution was due on the 2nd of July 2015.

The applicants had applied for the rescission of the default judgment obtained against them by the first respondent under case number HC6111/15.

It was submitted, that, a normal court application would render the outcome of the application for rescission of judgment irrelevant - a brutum fulmen.

Mr. George Marere, a director of the first applicant, deposed to the founding affidavit in which he averred the following:

(i) Firstly, on urgency: that the relief sought renders this matter 'inherently urgent'.

(ii) Execution of the writ would cause irreparable harm to the applicants.

(iii) There is no cause of action against the applicants in the main matter so the application for rescission of judgment has good prospects of success.

(iv) The first respondent fraudulently inflated the principal sum claimed and that is a triable issue which can only be resolved by the adducing of evidence.

(v) The first respondent is not entitled to the amount it is claiming, in that, it is charging usurious interest, amongst other things.

(vi) If the default judgment is executed, the applicants stand to lose their livelihood.

Mr. Thomas Tsvangirai Gambiza deposed to the opposing affidavit on behalf of the first respondent.

He averred, that, this matter was not urgent because no evidence was adduced to buttress the requirements of urgency. A matter is not rendered urgent simply because an application for rescission of judgment has been filed and is pending resolution.

He attached a letter dated 3 December 2014, addressed to the applicants legal practitioners, which was a warning to them that default judgment was about to be obtained because the appearance to defend was defective as it was filed out of time. He submitted, that, the application for rescission of judgment has no prospects of success....,.