Final Orders re: Approach iro Entitlement of Parties to Written Reasons for Judgment ito Interlocutory Judgments

Appealed
HH92-07 : PHAROAH B. MUSKWE vs DOUGLAS NYAJINA and MUNHUWEI G.T. and MINISTER OF LOCAL GOVERNMENT, NATIONAL HOUSING AND URBAN DEVELOPMENT N.O.
Ruled By: KUDYA J

This trial is concerned with the identification of the correct house between two of the three houses that are eligible to ascend to the Nyajina Chieftainship of the vaZumba clan in the Uzumba Maramba Pfungwe district of Mashonaland East province of Zimbabwe.THE PLEADINGSOn 26 August 2005, the plaintiff issued summons ...

HH99-10 : CRAIG ROBINSON vs ROBERT ROOT PROPERTY CONSULTANTS and HAMMER AND TONGUES (PVT) LTD
Ruled By: MAKARAU JP

In March 2009, the applicant approached this court on a certificate of urgency and obtained a provisional order calling upon the respondents to show cause why they should not be ordered to release certain items of household goods and effects whose details were listed in an annexure to the application.As ...

HH54-10 : ANDREW BRUFORD vs ATTORNEY GENERAL and MAGISTRATE JARABINI
Ruled By: BHUNU J

The applicant is standing trial in the Magistrates Court on charges he has not specified in his founding affidavit. The nature of the charges that the applicant is facing is however immaterial to the determination of this application.

What is material is that on the 15th of February 2010 the applicant made an application for discharge at the close of the State case. The application did not find favour with the trial magistrate who has now been cited as the second respondent. The trial magistrate having found no merit in the application dismissed the application and ordered that the trial must proceed at 2:15pm on the 4th of March 2010. That date was subsequently extended to today the 12th of March 2010 at 12noon.

I have further extended the time to 3pm this afternoon.

In dismissing the application for discharge at the close of the State case, the trial magistrate did not give his reasons for his determination. Aggrieved by the trial magistrate's interim determination, the applicant's lawyers wrote to the Clerk of Court on the 22nd February 2010 in the following vain:

“We refer to the above matter in an application for discharge of the Accused at the close of the State Case which was dismissed on the 15th March 2010.

We confirm that our Miss Maphosa requested for reasons for judgment for the purpose of an appeal to the High Court against the decision of his worship, Magistrate Jarabini, on the same day.

Kindly place this letter before his worship as a reminder.”

In paragraph 5(c) of his founding affidavit, the applicant had this to say:

“(c) My legal practitioner indicated that the said reasons were required for an appeal the defence intended to file with the High Court on my behalf.”

(d) The 2nd Respondent advised that the said reasons would be furnished and directed my legal practitioner to check with the court before the end of the following week.

(e) On the 22nd February 2010, the beginning of the following week, Miss Maphosa wrote a letter to the Clerk of Court which was received on 24th February 2010 as a reminder to the 2nd Respondent's commitment…,.

(f)…,.

(g)…,.

(h)…,.

(i) The 2nd respondent stated that he had not seen the letters but that he had written on the record, that, despite the request by the defence, he would only give his reasons in the main judgment.”

Aggrieved by the trial magistrate's refusal or failure to give reasons for his interim determination the applicant lodged this urgent application to this Court seeking a provisional order staying the criminal proceedings pending receipt of the trial magistrate's reasons for dismissing the application for discharge at the close of the State case.

Finally, the applicant seeks an order compelling the second respondent to furnish him with the reasons for the interim determination.

During the course of argument, counsel for the applicant made the valid concession that it would be premature and incompetent to appeal against the trial magistrate's interim determination at this stage as intimated in her letter and confirmed in the applicant's founding affidavit.

The defence having realized the folly of its written word, counsel has now made an about turn and has submitted that the defence in fact meant that it intended to seek a review of the of the trial magistrate's interim determination.

That may very well be so, but, applications are determined on the record with affidavits constituting the evidence.

While counsel may seek to amend her own letter, it is virtually impossible to amend her client's affidavit.

Having regard to the letter of the 22nd of February 2010, and the applicant's own affidavit, the trial magistrate can hardly be faulted for deciding to proceed with the trial when the reason for which the reasons were required was inappropriate and incompetent at law.

Counsel for the first respondent has cited a plethora of cases stating that it is only in exceptional circumstances that the superior Courts entertain interim applications for review.

I did not here counsel for the applicant to contradict that submission.

While I do not want to pre-empt the outcome of the applicant's intended application for review I am constrained to say that he has a mountain to climb.

That being the case, the ends of justice can only be served by giving the green light for the trial to proceed while the applicant proceeds to lodge his application for review if he is so minded.

Proceeding with the trial is no impediment to the intended trial.

The adage that 'Justice delayed is justice denied' is apt in this case. I have deliberately chosen to ignore the question of urgency electing to determine the application on the merits for the sake of finality.

It is accordingly ordered that the application be and is hereby dismissed with costs.

HH443-15 : MHANGURA COPPER MINES LIMITED vs TAYENGWA MUSKWE
Ruled By: HUNGWE J

This matter was initiated as a court application by the present plaintiff. Upon hearing argument, the court ordered that the papers filed in the court application stand as pleadings and the matter proceed to discovery in the normal way.

The papers show that, at the pre-trial conference stage, four issues were identified for trial. These are:

(a) Whether or not the respondent obtained possession of the Toyota Hi-lux motor vehicle registration number 424-562E from the applicant without authority or permission;

(b) Whether or not the respondent promised to return this motor vehicle to the applicant by delivering it to the offices of the Zimbabwe Mining Development Corporation as alleged on behalf of the applicant;

(c) Whether or not there was a sale of the Toyota Hilux motor vehicle, and, if so, whether the sale was to the respondent or to a company called Hoeramar Enterprises;

(d) Whether the aforesaid Toyota Hilux motor vehicle is no longer in the possession of the defendant;

(e) The value of the aforesaid Toyota Hilux motor vehicle at the time the defendant obtained possession of it.

At the commencement of trial, the respondent took four points in limine;

(i) The first point was whether the Chairperson of the Zimbabwe Mining Development Corporation (“ZMDC”) Board of Directors has the authority or jurisdiction to act on her own initiative without a board resolution to set up a commission of inquiry to look at the affairs of a separate and different entity altogether.

(ii) The second point was a challenge to the authority by virtue of which the present action was launched, since, according to the respondent, the applicant had not authorised the launching of the inquiry and therefore there was no authority for the launching of these proceedings.

(iii) Thirdly, the respondent queried the powers of a commission of inquiry to operate outside its terms of reference. Since the terms of reference did not empower the commission of inquiry to delve into the disposal of motor vehicles, then, if it considered that as within its terms of reference, that commission of inquiry acted ultra vires its terms of reference.

(iv) Finally, the respondent took the point, that, where correspondence had been ruled “without prejudice” it cannot be relied upon in subsequent proceedings.

After hearing the respondent as well as counsel for the plaintiff on the preliminary points, I directed that the matter proceeded to trial and my ruling on these points will be made apparent in the judgment.

I wish now to set out the reasons for the order which I gave then.

Appealed
HH405-20 : ROBIN VELA vs AUDITOR GENERAL OF ZIMBABWE N.O. and BDO ZIMBABWE CHARTERED ACCOUNTANTS (whose partners are Ngoni Kudenga, Gladman Sabarauta, Martin Makaya, Gilbert Gwatiringa and Jonas Jonga)
Ruled By: CHINAMORA J

In Kazingizi v Dzinoruma HH106-06..., MAKARAU J and PATEL J aptly proffered the rationale for providing reasons:“The absence of reasons for the judgment gave great cause for concern. It is trite that every trier of fact has to give reasons for his or her decision. A judicial decision that is ...

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Law Portal
Zimbabwe

Final Orders re: Approach iro Entitlement of Parties to Written Reasons for Judgment ito Interlocutory Judgments

Appealed
HH92-07 : PHAROAH B. MUSKWE vs DOUGLAS NYAJINA and MUNHUWEI G.T. and MINISTER OF LOCAL GOVERNMENT, NATIONAL HOUSING AND URBAN DEVELOPMENT N.O.
Ruled By: KUDYA J

HH99-10 : CRAIG ROBINSON vs ROBERT ROOT PROPERTY CONSULTANTS and HAMMER AND TONGUES (PVT) LTD
Ruled By: MAKARAU JP

HH54-10 : ANDREW BRUFORD vs ATTORNEY GENERAL and MAGISTRATE JARABINI
Ruled By: BHUNU J

HH443-15 : MHANGURA COPPER MINES LIMITED vs TAYENGWA MUSKWE
Ruled By: HUNGWE J

Appealed
HH405-20 : ROBIN VELA vs AUDITOR GENERAL OF ZIMBABWE N.O. and BDO ZIMBABWE CHARTERED ACCOUNTANTS (whose partners are Ngoni Kudenga, Gladman Sabarauta, Martin Makaya, Gilbert Gwatiringa and Jonas Jonga)
Ruled By: CHINAMORA J

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Law Portal Zimbabwe

Final Orders re: Approach iro Entitlement of Parties to Written Reasons for Judgment ito Interlocutory Judgments

Appealed HH92-07 : PHAROAH B. MUSKWE vs DOUGLAS NYAJINA and MUNHUWEI G.T. and MINISTER OF LOCAL GOVERNMENT, NATIONAL HOUSING AND URBAN DEVELOPMENT N.O. Ruled By: KUDYA J

HH99-10 : CRAIG ROBINSON vs ROBERT ROOT PROPERTY CONSULTANTS and HAMMER AND TONGUES (PVT) LTD Ruled By: MAKARAU JP

HH54-10 : ANDREW BRUFORD vs ATTORNEY GENERAL and MAGISTRATE JARABINI Ruled By: BHUNU J

HH443-15 : MHANGURA COPPER MINES LIMITED vs TAYENGWA MUSKWE Ruled By: HUNGWE J

Appealed HH405-20 : ROBIN VELA vs AUDITOR GENERAL OF ZIMBABWE N.O. and BDO ZIMBABWE CHARTERED ACCOUNTANTS (whose partners are Ngoni Kudenga, Gladman Sabarauta, Martin Makaya, Gilbert Gwatiringa and Jonas Jonga) Ruled By: CHINAMORA J

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Law Portal
Zimbabwe

Appealed
HH92-07 : PHAROAH B. MUSKWE vs DOUGLAS NYAJINA and MUNHUWEI G.T. and MINISTER OF LOCAL GOVERNMENT, NATIONAL HOUSING AND URBAN DEVELOPMENT N.O.
Ruled By: KUDYA J

HH99-10 : CRAIG ROBINSON vs ROBERT ROOT PROPERTY CONSULTANTS and HAMMER AND TONGUES (PVT) LTD
Ruled By: MAKARAU JP

HH54-10 : ANDREW BRUFORD vs ATTORNEY GENERAL and MAGISTRATE JARABINI
Ruled By: BHUNU J

HH443-15 : MHANGURA COPPER MINES LIMITED vs TAYENGWA MUSKWE
Ruled By: HUNGWE J

Appealed
HH405-20 : ROBIN VELA vs AUDITOR GENERAL OF ZIMBABWE N.O. and BDO ZIMBABWE CHARTERED ACCOUNTANTS (whose partners are Ngoni Kudenga, Gladman Sabarauta, Martin Makaya, Gilbert Gwatiringa and Jonas Jonga)
Ruled By: CHINAMORA J