Variation of Contracts re: Deed of Settlement iro Waiver, the Presumption Against Waiver and the Doctrine of Estoppel

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HH211-18 : MOSLEY MASHINGAIDZE vs PRECIOUS CHIPUNZA
Ruled By: MATANDA-MOYO J

The plaintiff sued the defendant by way of summons for the following relief;

(a) An order evicting the defendant and all those claiming occupation through him from the plaintiff's premises known as Number 20 Saint Stephens Road, Meyrick Park, Harare;

(b) Holding over damages in the sum of $500 per month with effect from 1 November 2011 to date of vacation or eviction; and

(c) Costs of suit on a legal practitioner-client scale.

The plaintiff alleged that he is the owner of Number 20 Saint Stephens Road, Meyrick Park, Harare which is described as Stand 3206 Marbelreign Township 17 of Greeba of Mabelreign measuring 1,065 square metres, held under Deed of Transfer 4941/2011 dated 18 October 2011. The defendant is in occupation of that property. As a result of such occupation by the defendant, the plaintiff alleged he is suffering $500 per month holding over damages from 1 November 2011. The $500 represents the amount the plaintiff would realize from renting out the above property.

The defendant disputed the plaintiff's ownership of the property. The defendant, instead, claimed ownership of the property.

It is the defendant's case that if the plaintiff indeed holds title to the property then such title would have been fraudulently acquired. The defendant denied having transferred his property to the plaintiff nor to any other person. Instead, the defendant pleaded that he borrowed $19,000 from a certain Frank Buyanga. He was made to sign a purported Agreement of Sale in respect of the property, hence, after the defendant failed to settle the debt, Frank Buyanga sold the property to Gildastone Holdings (Pvt) Ltd who have a pending eviction matter before the Magistrates Court against the defendant. It is the defendant's case that if indeed the plaintiff purchased the property, then he was and is not a bona fide purchaser.

The defendant denied being liable for holding over damages, insisting he was the owner of the property, and also denied that the plaintiff was entitled to costs on a legal practitioner-client scale. He also prayed for dismissal of the plaintiff's claim with costs on a higher scale.

Without replicating, the matter was set down for pre-trial conference. The issues for trial were as follows;

1. Whether or not the defendant has a defence to the plaintiff's claim;

2. Whether or not the plaintiff is entitled to recover holding over damages in the sum of $500 from 1 November 2011 to date of eviction; and

3. Whether or not the plaintiff is entitled to costs on a higher scale of legal practitioner and client.

Mr Mosley Mashingaidze testified that he is a Logistics Manager for a transport company based in DRC. He testified that he is the registered owner of Stand 3206, Mabelreign Township. He produced the title deed which is in his name; namely, Deed of Transfer number 004941/2011. The transfer was done on the authority of High Court Order 3931/11 dated 19 July 2011. He said he bought the property for $55,000. Receipts to that effect were produced.

The plaintiff testified that he entered into an Agreement of Sale with Goldastone Holdings (Pvt) Ltd. The sale was concluded through Floburg Real Estate agents. This was after the sale of the property was advertised through the newspapers. He then sent his sister to view the house. Thereafter, he also came over to view the property. The property was occupied then and so he was able to view the house. No one told him that there was a dispute in relation to the property. The defendant was in occupation of the house at the time of viewing.

Around April 2010, two or three months after purchasing the property, this witness learnt that the defendant was claiming ownership to the property. To his surprise, the defendant sat back and did nothing to assert his purported rights....,.

The defendant was taken to task on whether he had told the plaintiff, during inspection, that there was a dispute, and his answer was, he did not....,.

The conduct of the defendant of sitting back and not doing anything until later on after receiving these summons tends to corroborate the plaintiff's story.

The plaintiff paid $55,000 for the property and the defendant is still occupying the house. He has not benefited from the house from the date of transfer. He has lost out in terms of revenue. The current rentals claimed are not disputed. The plaintiff gave his evidence well and such evidence was not controverted during cross-examination.

SC19-12 : JAMESON RUSHWAYA and ANNIE RUSHWAYA and XELOD INVESTMENTS PL vs SWIMMING POOL & UNDERWATER REPAIRS PL and PATTERSON TIMBA and AEPROMM RESOURCES PL and TOLROSE INVESTMENTS PL
Ruled By: MALABA DCJ, ZIYAMBI JA and GOWORA AJA

This is an appeal against a judgment of the High Court.

The second respondent (“Timba”) and the first and second appellants (“the Rushwayas”) are the majority and minority shareholders respectively in Aepromm Resources (Pvt) Ltd. On 3 May 2011, following a series of lawsuits, the Rushwayas entered into an agreement (“the Sale Agreement”) with Timba in which they sold, to the latter, their rights and interest in Tolrose Investments (Pvt) Ltd (“Tolrose”) and Aepromm (Pvt) Ltd (“Aepromm”) in contemplation of a 'clean break' between the parties.

It was a specific clause of the agreement that the assets, which included gold mine claims currently registered in the name of Xelod Investments (Pvt) Ltd, 'shall be immediately re-transferred to Tolrose and Aepromm, at any rate before the payment of the deposit.'

That agreement was meant to end all lawsuits between the parties.

However, on the 27 June 2011 the parties were again before the courts. This came about as follows:

Following the signature by the parties of the Sale Agreement, Timba appointed, as Accredited Agent for all mining rights registered in the name of Tolrose (Pvt) Ltd, one Stephenson Timba, who, in turn, appointed one Ernest Mudimu as Mining Manager of Tolrose. This caused Jameson Rushwaya to write, on or about 16 June 2011, to the Mining Engineer querying the appointment and complaining that, as the claim holder, he was not consulted on this appointment. The Mining Engineer, by letter dated 20 June 2011, and addressed to the Operator, Glencairn Mine, cancelling the appointment of Ernest Mudimu as Mine manager of Telrose, and suspending all operations at the mine pending 'proper Manager's appointment'.

The respondents brought an urgent application in the High Court seeking the following relief:

“TERMS OF THE FINAL ORDER SOUGHT

The decision by the first respondent, of 20 June 2011, be and is hereby set aside, and, accordingly, the suspension of mining operations at Glencairn Mine is uplifted immediately and that the parties resort (sic) to the status quo ante that prevailed prior to the aforesaid decision.

INTERIM RELIEF GRANTED

1. The operation of the decision by the first Respondent, on 20 June 2011, be and is hereby suspended pending the return date.

2. Second, Third and Fourth respondents be and are hereby interdicted from commencing any mining operations and interfering with any administrative operations whatsoever at Glencairn Mine.”

The respondents in the High Court were the Mining Engineer as the first respondent, Xelod Investments (Pvt) Ltd as the second respondent, and the Rushwayas as the third and fourth respondents.

The court a quo found in favour of the respondents and granted the order sought. It found that the decision to close mining operations was made without hearing the respondents in violation of the principles of natural justice.

It found, also, that the decision by the Mining Engineer amounted to a determination of the parties' contractual rights and that there was no basis on which the Mining Engineer could have entertained the determination of a contractual dispute between the parties.

It is against this order that the appellants now appeal.

SC32-09 : VIMBAI MBISVA vs RAINBOW TOURISM GROUP LIMITED t/a RAINBOW HOTEL & TOWERS
Ruled By: SANDURA JA, ZIYAMBI JA and MALABA JA

This is an appeal against a judgment of the Labour Court which set aside an arbitral award made in favour of the appellant.

The background facts may be tabulated conveniently as follows:

1. The appellant (“Vimbai”) was employed by the respondent (“the Hotel”) as a supervisor.

2. On 18 January 2005 the Hotel wrote to Vimbai informing him that his contract of employment had been terminated. The letter reads as follows:

“Please be advised that effective 1 January 2005 your employment contract with Sheraton Harare Hotel and Towers has been terminated. You are no longer required to register for duty physically, on standby, or in any other form.

The decision has been taken by management as a last resort after futile attempts to resolve the matter amicably and through further attempts to settle the matter through arbitration. Management and yourself are of the opinion that the employment relationship has deteriorated to non-productive levels.

As a way forward, Sheraton Harare Hotel is willing to resolve the matter through arbitration provided both parties agree on terms of reference to be presented before the arbitrator.”

3. Vimbai took the letter to his trade union, the Zimbabwe Catering and Hotel Workers Union (“the Union”) which, on 20 January 2005, wrote to the Hotel indicating that Vimbai's dismissal would be challenged.

4. On 21 January 2005, the Hotel wrote to the Union as follows:

“Vimbai Mbisva's contract of employment has been terminated due to deterioration in the working relationship between Sheraton Harare Hotel and himself. As stated in our previous correspondence, we are willing and able to engage in dialogue that will result in the resolution of this matter. We are, in addition, willing to accept a determination from a body with appropriate authority to settle the matter.

The hotel welcomes intervention from the Zimbabwe Catering and Hotel Workers Union provided such intervention assists in a settlement of the above matter.”

5. Thereafter, the Union proposed that Vimbai be given a severance package equivalent to his salary for a period of two-and-a-half years, but, the Hotel rejected that proposal.

6. Subsequently, the Union and the Hotel entered into negotiations on the best way forward, but, the negotiations did not yield any positive results.

7. Then, on 25 January 2005, Vimbai went to the Hotel where he signed a Memorandum of Agreement (“the MOA”) which reads as follows:

“I, Vimbai Mbisva, hereby acknowledge that I have entered into an agreement with Sheraton Harare Hotel, under the following terms of which I have agreed:

1. To accept payment of the sum of Z$17,001,880=46 (Z$ seventeen million one thousand eight hundred and eighty dollars and forty-six cents) as full and final settlement of all claims that I have against Sheraton Hotel Harare, its directors, subsidiaries, associated companies, and operations. I acknowledge that I have received Z$17,001,880=46 (Z$ seventeen million one thousand eight hundred and eighty dollars and forty-six cents) in full.

2. To withdraw all claims, complaints, and statements made (by) me relating to Sheraton Hotel Harare, whether with my legal advisors, any legal advisors, any Government body, any court, tribunal or to (sic) any other organisation.

I acknowledge that I have no further claims against Sheraton Hotel Harare, its directors, subsidiaries, associated companies and operations, whether for damages or otherwise. I have entered into this agreement of my own free will and I confirm that my signature appears on this agreement. I undertake to file a copy of this agreement with my legal advisors and any other organisation whose assistance I had sought.”

8. On 2 February 2005, Vimbai's legal practitioners referred the issue of Vimbai's unlawful dismissal to a Labour Officer for conciliation. The Labour Officer failed to settle the dispute, and, accordingly, on 15 April 2005, issued a Certificate of No Settlement.

9. On 9 May 2005, the Labour Officer referred the dispute to compulsory arbitration, and identified the issues for arbitration as:

“(1) Whether the agreement of 25 January 2005, between V Mbisva and Sheraton Hotel, is valid or not.

(2) If not, what damages are payable to Mr Mbisva.”

10. On 3 June 2005, Vimbai and the Hotel's Human Resources Director (“Makoni”) appeared before the arbitrator with their legal practitioners. Both Vimbai and Makoni gave oral evidence and were cross-examined. After addresses by the legal practitioners, the arbitrator reserved his decision.

11. On 18 July 2005 the arbitrator gave his decision, which was that the MOA signed by Vimbai on 25 January 2005 was not binding on the parties because it was not an agreement in the legal sense.

12. Aggrieved by that decision, the Hotel appealed to the Labour Court in terms of section 98(10) of the Labour Act [Chapter 28:01] (“the Act”).

13. On 5 April 2007, the Labour Court allowed the appeal and set aside the arbitral award granted on 18 July 2005.

14. Dissatisfied with that result, Vimbai appealed to this Court, leave to appeal having been granted in terms of section 92F(2) of the Labour Act [Chapter 28:01].

The grounds of appeal set out in the Notice of Appeal are as follows:

“1. The court a quo grossly erred as a question of law overturning the decision of the arbitrator on ordinary common law (principles) and not on the (principles) of public policies (enunciated) and captured in Article (34) of the UNCITRAL Model Law as incorporated in our Arbitration Act [Cap 11:15]. Put simply, (in) overturning the decision of the arbitrator, the court was obliged to consider whether the award in itself offended public policy.

2. Even assuming that the matter had to be determined purely and squarely on the basis of section 98(10) of the Labour Act [Cap 28:01], the court a quo grossly erred (in) overturning (a) finding of fact by the arbitrator. Put simply, there (were) no questions of law in the appeal pending before the Labour Court, and, for that reason, the Labour Court had no good reason to interfere with the finding of fact that (had) been made by the arbitrator.

3. Put simply, the Labour Court grossly misunderstood its functions, the court dealing specifically with questions of law under section 98(10) of the Labour Act [Cap 28:01].

4. Even assuming, without conceding, that (there were) questions of law in the appeal before the Labour Court, the Labour Court itself grossly erred in holding that (the) document executed on the 25th of January 2005 was binding, and ignored that the same had been executed under protest. In any event, to show that the appellant was not agreeing with the same he had left a settlement cheque with the respondent.”...,.

WAS THE MEMORANDUM OF AGREEMENT BINDING ON VIMBAI?

In the fourth ground of appeal, it is submitted that the Labour Court erred in holding that the Memorandum of Agreement (MOA) was binding on Vimbai, and ignored the fact that it was signed under duress.

However, this ground of appeal was not dealt with in the heads of argument filed on behalf of Vimbai. Nevertheless, I will deal with it.

The issue raised in this ground of appeal is whether the Memorandum of Agreement (MOA) was signed under duress.

As already stated, both Makoni and Vimbai gave evidence before the arbitrator and were cross-examined. After consideration of that evidence, the arbitrator said the following:

“In one way or the other, after the dismissal of the claimant, the parties contacted each other, resulting in the claimant and Mr Makoni (from Sheraton) meeting to 'finalise' the matter. At this penultimate meeting, the employer presented a document that would put the matter to rest. The claimant knew that if he continued to challenge his dismissal, he would get nothing from the employer. He therefore pretended to be accepting his terminal benefits, but requested that they be split into two parts, with the first part incorporating largely the January salary and (the) other part the rest of the other terminal benefits.

The claimant then wrote “U.P.” after his signature to signify that he was accepting the benefits 'Under Pressure'.

This was not explained to the employer.

The employer acknowledges that he (it?) was not aware that the claimant had signed the document under pressure.

The claimant hoodwinked the employer into believing that he was consenting to the termination of employment and to the acceptance of terminal benefits. This was done with the sole aim of accessing the January salary.

The claimant's conduct is deplorable.

He was understandably desperate for cash but he used unorthodox methods to get what he wanted.

He lied that he was accepting the benefits of his own free will, and that his acceptance was in full and final settlement of (the) claims that he had against the respondent.

No wonder the respondent's agent kept referring to him as a trickster.

Had it not been for my findings regarding the Memorandum of Agreement (MOA) I would have ruled that the claimant be bound by (his) signature, never mind the invented 'U.P'.”

It is quite clear, from what the arbitrator said, that, he was satisfied that Vimbai had not signed the Memorandum of Agreement (MOA) under duress.

The Labour Court was of the same view and said the following:

“It may very well be true that he was under financial pressure which forced him to accept a deal that he did not like. But, the fact remains that he need not have accepted the deal. It is not like his will was overborne by (the) appellant's to the extent that he had no choice in the matter. He had a choice. He could have rejected the whole deal and pursued other remedies. The fact that he now feels that he should have got more than the deal offered is no ground for breaking the deal.”

The finding by the Labour Court, that Vimbai did not sign the Memorandum of Agreement (MOA) under duress, is a finding of fact, which is not appealable unless it can be said to be irrational in the sense set out in Hama v National Railways of Zimbabwe 1996 (1) ZLR 664 (S)…, where this Court said:

“The general rule of law, as regards irrationality, is that an Appellate Court will not interfere with a decision of a trial court based purely on a finding of fact unless it is satisfied that, having regard to the evidence placed before the trial court, the finding complained of is so outrageous in its defiance of logic or of accepted moral standards that no sensible person who had applied his mind to the question to be decided could have arrived at such a conclusion: Bitcon v Rosenberg 1936 AD 380 at 395-7; Secretary of State for Education and Science v Metropolitan Borough of Tameside [1976] 3 All ER 665 (CA) at 671E-H; CCSU v Minister for the Civil Service [1984] 3 All ER 935 (HL) at 951A-B; PF-ZAPU v Minister of Justice (2) 1985 (1) ZLR 305 (S) at 326E-G.”

In the present case, I am not prepared to say, that, having regard to the evidence placed before the arbitrator and the Labour Court the finding complained of is irrational in the sense set out above.

Consequently, the finding that Vimbai did not sign the Memorandum of Agreement (MOA) under duress is not appealable, and the fourth ground of appeal, therefore, falls away.

In my view, the Labour Court correctly determined the matter.

The Memorandum of Agreement (MOA) was a declaration by Vimbai that the dispute between him and the Hotel had been settled on the terms and conditions set out in the Memorandum of Agreement (MOA).

That conclusion is logically consistent with what happened in this case before 25 January 2005.

Vimbai was dismissed by the Hotel. He reported the matter to the Union and a labour dispute ensued. Negotiations aimed at settling the dispute commenced between the Union and the Hotel. The Union proposed that Vimbai be given a severance package equivalent to his salary for a period of two-and-a-half years, but, the Hotel rejected the proposal. As he badly needed some money, Vimbai went to the Hotel, on 25 January 2005, and signed the Memorandum of Agreement (MOA), declaring that the
labour dispute had been settled on the terms and conditions set out therein.

In my view, that declaration is binding on him.

In the circumstances, the appeal is dismissed with costs.

Appealed
HB59-09 : DINESH MANILAL NARAN vs RONNAH MAFURIRANO and THE REGISTRAR OF DEEDS
Ruled By: KAMOCHA J

The plaintiff in this matter seeks:-“1. An order to declare that the sale agreement executed between him and first defendant on the 30th of September 2001 on Stand 378, Gorebridge Road, Killarney, Bulawayo is still binding and effectual as between the parties;2. An order to compel the first defendant to ...

The plaintiff in this matter seeks:-

“1. An order to declare that the sale agreement executed between him and first defendant on the 30th of September 2001 on Stand 378, Gorebridge Road, Killarney, Bulawayo is still binding and effectual as between the parties;

2. An order to compel the first defendant to transfer all her rights, title and interests in Stand Number 378 Gorebridge Road, Killarney, Bulawayo to plaintiff.

3. An order authorizing the Deputy Sheriff of Bulawayo to sign all the transfer documents for and on behalf of the first defendant in order to effect transfer of Stand 378 Gorebridge Road, Killarney, Bulawayo to plaintiff.

Alternative to 1, 2 and 3 above -

Plaintiff seeks an order:

4(a) To be refunded by first defendant $1,500,000 plus interest a tempore morae at the prescribed rate, effective from the 31st of October 2001; and

(b) To be compensated by first defendant in the sum of $2,500,000.

5. That the first defendant pays all costs of this action on an attorney and client scale.”

When the parties appeared before a judge for a pre-trial conference it was agreed that the issues to be determined by the trial court be as follows:-

“(1) Did plaintiff advise first defendant that plaintiff was no longer prepared to be held to the contract of sale, and, as a result thereof, did plaintiff cancel the contract of sale?

(2) Was the contract of sale perfected?

(3) Is the plaintiff entitled to tender $3,800,000 plus interest, and, in that event, at what rate is the interest to be calculated?

(3) In the alternative, is plaintiff entitled to:-

(a) A refund of $1,500,000 plus interest calculated from the 31st October 2001; and

(b) Compensation for improvements effects (sic) by plaintiff.”

Each party had the onus to prove two of the above issues. The plaintiff had to prove issues 3 and 4 while the defendant had to prove issues 1 and 2.

The plaintiff gave evidence himself and called two witnesses to support him.

The plaintiff's story was that he was a businessman in Bulawayo. Mr Thokozani Khumalo was his business partner who needed a house. Thokozani Khumalo (“Khumalo”) had been initially leasing House Number 378 Gorebridge Road, Killarney, Bulawayo. The house belonged to Ronnah Mafurirano, the first defendant.

The husband of the first defendant, Mr Davis Sunganayi Mafurirano, was the plaintiff's business associate. They knew each other from the time Davis Sunganayi Mafurirano used to work for CBZ Bank.

After Thokozani Khumalo had expressed his wish to purchase the house he was renting, the plaintiff conveyed the message to Davis Sunganayi Mafurirano who asked the plaintiff to make an offer to him.

When the plaintiff made an offer of $2.5 million, Davis Sunganayi Mafurirano said he needed time to go and discuss with his wife, the owner, and would come back to them.

Davis Sunganayi Mafurirano came back with a figure of $5.3 million which the parties agreed on.

Although the house was being purchased for Thokozani Khumalo, the negotiations were being done by the plaintiff, Naran, while Davis Sunganayi Mafurirano represented his wife, the first defendant.

The parties then had a memorandum of agreement of sale reduced to writing which reads in part:

“Purchase Price and Payment

The purchase price payable to the seller by the purchaser for the said Stand shall be the sum of $5,300,000 (five million three hundred thousand dollars). A deposit of $2,500,000 (two million five hundred thousand dollars) shall be paid upon signing of this agreement and the balance of $2,800,000, (two million eight hundred thousand dollars) shall be paid in monthly instalments of $1,500,000 with effect from on/or before the 31st of October 2001 finishing with the balance of $1,300,000. 30% per month interest shall be paid on $2,300,000.”

The plaintiff engaged Sibusiso Ndlovu to represent him.

The seller signed the agreement on 12 September 2001 while the buyer signed it on 30 September 2001.

The plaintiff conceded that he had failed to pay the deposit as stipulated in the agreement. He should have paid $2,500,000 when he signed the agreement on 30 September 2001, but he, instead, paid the sum of $1,500,000 on 26 October 2001.

The plaintiff was clearly in breach of what the parties had agreed on not so long back.

He however seems to take solace in his belief that the $1,500,000 was not rejected by the buyer despite the fact that it was less than what the parties had agreed and was even paid late. He said the money was never sent back to him or his lawyers.

It was his evidence, that, as a business associate in relation to the buying of paper he had given Davis Sunganayi Mafurirano the sum of one million dollars to import paper. That, however, did not materialize but Davis Sunganayi Mafurirano never returned the $1 million.

The plaintiff seemed to suggest that that amount replaced the shortfall of one million he was supposed to pay as a deposit.

The plaintiff denied ever taking any steps to cancel the agreement. Instead, he said it was Davis Sunganayi Mafurirano who appeared to be bent on cancelling the agreement in his letters to be found on pages 12 and 15 of the plaintiff's bundle of documents.

The first one is undated and addressed to Sibusiso Ndlovu & Associates and marked for the attention of Mr S Ndlovu and reads thus:-

“Dear Sir

Re: Sale of House Number 378 Gorebridge Road, Killarney

Further to our telephone conversation on Wednesday 19 September 2001, I wish to confirm that we would like to give your clients up to 24 September 2001, 1400 hours, to pay their deposit. Failing, which, will give us the freedom to allow those who have shown interest to view the house as from 1000 hours on Tuesday 25 September 2001.

Please be advised accordingly, and your client's co-operation will be assumed.

Yours faithfully
D S Mafurirano”

I pause to observe that the above letter did not spur the plaintiff into trying to pay the deposit timeously at all. Instead, an amount of $1,500,000 was paid more than a month later - on 26 October 2001.

The plaintiff still had problems in paying as agreed prompting Mr Mafurirano to address a letter direct to Thokozani Khumalo on 8 November 2001 in the following terms:

“Re: Sale of House Number 378 Gorebridge Road, Killarney

It is with regret that I write to inform you of our decision to cancel the sale of the above property. The sale of the property was linked to a project we wanted to undertake, but we have had to seek alternative financing sources at higher costs than initially anticipated.

This affair concerning the sale of the above property has been one great problem and waste of time to us, simple because we didn't know that we were dealing with not so-serious people or rather people with other interests but to buy a house.

The negotiations for the price and other conditions were concluded on the 12th September 2001, with Mr Ndlovu, Mr D Naran's appointed representative. The payment of $2.5 million deposit was supposed to be immediate, but we had to wait until 26/10/2001 when a down payment of only Z$1.5 million was made. Promises of similar payments every week were made.

The above payment was based on the price and conditions negotiated, and signed for on the 12th September 2001. Mr D Naran called me to discuss the issue of payment, only to tell me that Mr Ndlovu, his representative, had no authority to conclude the negotiations on price and conditions as he did, as such, he, Mr Naran, was not bound by that agreement, which effectively meant there was no agreement in the first place. In fact, there is no agreement as I write, because Mr Naran nullified the one which we thought was binding.

Further, Mr D Naran, indicated that the house was overpriced, and that the whole deal should be abandoned, and that we were to return $1.1 million, with $400,000,00 being payment for inconvenience suffered by us, and that we were to compensate Mr Khumalo for the improvement done.

Despite good intentions we had, we have finally decided not to dispose of this property because we no longer need to, and, most importantly, the problems we have gone through and which we may go through in future, if we carry on as we have done this far.

In this regard, please forward invoices/receipts for the improvements you have undertaken so far for re-imbursement. Further, as discussed with you before, please, no improvements without consulting us first. You can stay if you like, but please we do not want to chase anybody for rent money.

If, in the future, we decide to sell, you will obviously have the first refusal option.

Regards
D S Mafurirano”…,.

The tone of the above letter reveals that the seller was disappointed by the behavior of the buyer who did not appear to be serious to pay on signature of the agreement. When payment was made, more than a month later, the money was one million dollars less than the agreed deposit. According to the letter, Naran did not feel bound by the agreement as he allegedly accused his lawyer of concluding negotiations on the price and conditions without his client's mandate.

The plaintiff denied ever doing or saying what is contained in the letter. He instead alleged that the negotiations were done by him. He did not remember the meeting of 7 November 2001 where he was alleged to have made those remarks.

It was his evidence that although he may have asked for more time to pay, never did he, at any stage, indicate that he wanted to cancel the agreement. It was the defendant who was bent on wanting to cancel the agreement as illustrated by her letter of 17 October 2001 addressed to the plaintiff's legal practitioners marked for the attention of Mr S Ndlovu which reads:

“Re: Sell of House Number 378 Gorebridge Road, Killarney

Further to our various discussions and letters concerning the sale of the above property. It is now almost the anniversary of the signing of an agreement of sale of the above property whose deposit should have been paid immediately after signing. This has not happened for the past 29 days.

I feel you have had ample time to raise and pay the deposit amount, therefore, I wish to officially inform you of my withdrawal from the agreement. And also to inform you that with immediate effect, Mr Khumalo should give access to people wishing to view the house.

Yours faithfully
R. Mafurirano (Mrs)”

The plaintiff went on to say that he had never instructed his legal practitioner to cancel the contract and accordingly wanted it to be enforced.

He said he did not know anything about the letters of 7 February 2002 and 2 May 2002 addressed to him at 6 Hussor Road, Khumalo, Bulawayo as he did not live there. He had never lived, owned, or used that address.

Under cross examination, Naran told the court that he in fact only became aware of the two letters two weeks before the trial when they were sent to him by his legal practitioner. He was not even aware of the letters when he issued summons and emphasized that he could not have been influenced to issue summons by something that he was not even aware of.

Similarly, he claimed the letter of 8 November 2001, addressed to Thokozani Khumalo, was only brought to his attention two weeks before the trial commenced. It also could not have influenced him to institute these proceedings.

In a nutshell, his erstwhile legal practitioner, Sibusiso Ndlovu, never brought to his attention all these letters.

Naran was being untruthful when he said he was not aware of the said letters before he issued summons. That is contrary to what he said in paragraphs 6 and 7 of his declaration where he says the defendant purported to cancel the agreement by addressing two letters to him, copies of which were attached to the declaration marked “B” and “C”. He said he had never received those letters and had accordingly not been put in mora by the defendant.

As can be seem from his declaration, his concern was that he had not been put in mora since he had not received the said letters.

He was clearly aware of the letters before he issued summons.

Consequently, his suggestion that they were only brought to his attention two weeks before the trial commenced is rejected as it is false and so is his suggestion that he was not aware of the letter of 8 November 2001 and that it did not influence him to institute these proceedings.

Further, Naran could not give a satisfactory explanation, under cross-examination, why he was tendering the balance of $3.8 million for the house if he had treated the $1 million meant for the paper project as part of the purchase price for the house. If what he told the court was true he should have tendered $2.8 million. There would have been no reason for him to tender more than what was due and owing.

In any event, the paper project involved Naran and the defendant's husband and had nothing to do with the defendant herself. Hence the $1 million could not have been treated as part of the price for the house.

Naran was an unreliable witness who was not worth to be believed. His evidence was in conflict with that of Thokozani Khumalo who categorically stated, that, on receipt of the letter of 8 November 2001 he discussed the import of its contents telephonically with Naran who distanced himself from the contents and suggested that the letter should be handed over to their lawyer Sibusiso Ndlovu. Indeed, the letter was handed over to the lawyer as suggested by Naran.

Thokozani Khumalo told the court that Naran never told him that the $1 million was part payment for the purchase price. Instead, he said Naran told him that Davis Sunganayi Mafurirano had borrowed the money.

Thokozani Khumalo said he had effected some improvements at the property. He, however, admitted under cross examination that the improvements were made without the authority from the Mafuriranos.

Mr Sibusiso Ndlovu was a friend and business partner of Naran. He was also a friend of Thokozani Khumalo. He was the legal practitioner who drew up the agreement of sale and signed it on behalf of Naran – the plaintiff.

He knew Mrs Mafurirano who had been introduced to him by one Mathew Nhindiri and also had dealings with her from her bank – CBZ Bank. He said he only got to know Mr Mafurirano at the time he drafted the agreement of sale.

He confirmed that three letters were addressed to his law firm but the fourth one was directly addressed to Thokozani Khumalo, who, without delay, handed it to him.

Thokozani Khumalo was reported as having been still agitated as he handed the letter to Sibusiso Ndlovu who got concerned after going through the contents of the letter. The letter in question is the one dated 8 November 2001 quoted from page 4 and 5 supra.

Sibusiso Ndlovu, like Thokozani Khumalo, telephoned Naran about the contents of the letter. Naran denied having agreed to cancel the agreement and told Sibusiso Ndlovu to contact Davis Sunganayi Mafurirano which he did. He went further to advise Davis Sunganayi Mafurirano that Naran and Thokozani Khumalo were still committed to pay but did not have money at that stage because the money they had expected from the payment of a cement consignment from a Zambian buyer was not forthcoming. But, Davis Sunganayi Mafurirano still allegedly told Sibusiso Ndlovu to pressurize Naran to make payment for the house as he knew Naran's plight. He knew about the Zambian consignment and anticipated that Naran would be paid for the consignment at some stage.

Under cross examination, Sibusiso Ndlovu said he had never regarded the letter of 8 November 2001 as a cancellation of the agreement. He also conceded that the defendant still considered herself bound by the agreement in the letter of 7 February 2002. In it, the defendant wanted to know when the plaintiff was going to pay if he was still interested in the agreement. The letter was written by her legal practitioners addressed directly to Naran and sent to 6 Hussar Road, Khumalo which was a wrong address.

The main body of the letter reads:

“Re: Agreement of Sale with Ronnah Marurirano

We refer to the above matter in which we act for Ronnah Mafurirano with whom you entered into a sale agreement in respect of Stand 378 Gorebridge Road, Killarney.

The purchase price was in the sum of $5,300,000 payable as to a deposit of $2,500,000 and the balance of $2.8 million in monthly installments of $1.5 million starting end of October 2001.

You paid $1.5 million as a deposit on the 26th October 2001. This was $1 million less than the agreed deposit.

You have not paid anything further after the $1 million (sic) referred to.

Our clients instruct us to enquire from you, as we hereby do, whether it is still your intention to proceed with the purchase, and, if so, when they can expect to receive the balance which is overdue. If you are no longer interested in the purchase please advise to enable our clients to move forward. Please let us have your election either way within 7 days of this letter failing which we will approach court for an order to declare forfeit as a pre-estimate of damages the deposit paid.

Yours faithfully
Majoko and Majoko”…,.

The contents of this letter clearly establish that the defendant still considered herself bound to the agreement as at 7 February 2002.

This court, therefore, makes a specific finding to that effect.

Another letter addressed directly to Naran, but also sent to the wrong address, was dated 2 May 2002 and it reads this:-

“Dear Sir

Re: Agreement of Sale with Ronnah Mafurirano

We refer to the above matter.

In terms of your agreement, you were supposed to pay a deposit for the purchase price in the sum of $2,500,000 on the date of your signing the agreement. You failed to do so. In fact, you only paid the sum of $1,100,000 (sic).

Through several letters to you our client informed you that time of payment was of the essence. You have failed to make any other payment from the date you made the first installment. You have breached your contract.

Due to your breach of the contract by failing to pay on time and as stipulated in the contract our client now considers your contract cancelled.

Our client also wishes to notify you that he reserves the right to forfeit the installment paid to her.

Yours faithfully
Majoko and Majoko”

The above two letters were sent to a wrong address although they were directed at Naran personally.

Naran said he had never used that address and had never lived there. He went on to state that he did not even know anyone living at that address.

He was being untruthful on that point, because, when Sibusiso Ndlovu asked him if he had once lived there, or had once used the address, or if he knew anyone at that address, he denied ever living there or ever using the address but revealed that his distant cousin lived there but was quick to say he was not close to him.

Sibusiso Ndlovu's evidence also confirmed that Naran was well aware of the above two letters well before the summons was issued. He was in fact aware of all the four letters quoted in this judgment id est;

(a) The undated letter addressed to Sibusiso Ndlovu & Associates;

(b) The one addressed to Thokozani Khumalo dated 8 November 2001;

(c) The one dated 7 February 2002 addressed to himself but sent to the wrong address; and

(d) The last one dated 2 May 2002 also addressed to himself but sent to a wrong address.

Accordingly, Sibusiso Ndlovu's evidence belies Naran's story that he only became aware of the letters two weeks before the trial commenced.

Sibusiso Ndlovu admitted, under cross examination, that, Naran did not disclose to him that he himself had made a tender of the purchase price to the defendant. He further admitted that Naran, the plaintiff, was in material breach of the agreement. He, however, went on to state that despite the fact that Naran was in material breach of the agreement the defendant kept on accepting and granting extensions.

The defence case was closed after the evidence of Sibusiso Ndlovu.

Mrs Mafurirano, the first defendant, gave evidence and called her husband as a defence witness.

She herself did not have much to say as most of what took place in relation to the agreement of sale was done by her husband. He did all the negotiations relating to the sale.

She told the court that she and her husband had more than one property in Bulawayo. The property at the centre of this dispute was registered in her name. Sometime in September 2001 the couple was offered a farm to buy. They needed money to buy it. They then decided to dispose of one of their properties in order to raise the money. They decided to sell the property in question. The first offer was made to Thokozani Khumalo the sitting tenant.

After sometime, her husband brought an Agreement of Sale drawn up by Sibusiso Ndlovu & Associates legal practitioners for her signature.

She confirmed that the plaintiff was in breach of the contract as he failed to pay the deposit in terms of the agreement. The purchase price was also not paid.

Although she had not been involved in the writing of several letters to the plaintiff by her husband she was made aware of what was going on.

Under cross-examination, she maintained that she had not cancelled the contract despite indications in the letters that it would be cancelled. She said she still considered herself bound by the agreement although her attitude was that the whole deal had taken too long. Her major concern was to have the house sold so that they could raise money for the farm project.

Mrs Mafurirano gave her evidence in a simple and clear manner. She was worth to be believed.

She called her husband who was her key witness as he was the one involved in the negotiations for the sale of the house.

The husband, one Davis Sunganayi Mafurirano, had this to say:

He told the court that Thokozani Khumalo was their tenant who rented the house in question. At one stage, an opportunity arose whereby someone was selling a business and a farm. He and his wife got interested in that property. They decided, as a family, to raise some money by selling their Killarney house in an endeavour to acquire the farm and a business. They agreed, as a family, that the husband was going to handle all negotiations and transactions relating to the selling of their Killarney house.

They then approached the sitting tenant, Thokozani Khumalo, and informed him about their wish to dispose of the house. Thokozani Khumalo was interested in the house but said he would seek financial assistance from Naran who was his employer. Later, Thokozani Khumalo advised him to go and see his lawyer, Sibusiso Ndlovu.

He went and had a discussion with Sibusiso Ndlovu. They agreed on a price of $5.3 million for the house. The lawyer, Sibusiso Ndlovu, undertook to draft an Agreement of Sale and said Davis Sunganayi Mafurirano should return the next day to sign it. He returned to the lawyer's office whereat the lawyer and himself made some amendments to the draft Agreement of Sale. Thereafter, he was given the amended draft Agreement of Sale to take to his wife for signature.

His wife signed the Agreement of Sale on 12 September 2001 and Davis Sunganayi Mafurirano immediately returned it to the law firm for the buyer to sign it. Davis Sunganayi Mafurirano expected the buyer to also sign the agreement on 12 September 2001, but, to his surprise and disappointment, the buyer only signed it 18 days later - on 30 September 2001.

Davis Sunganayi Mafurirano's expectations were that Naran was going to pay a deposit of $2.5 million on signature as stipulated in the Agreement of Sale but that never happened. Payment of the deposit was not made even on the belated date of signature by the buyer.

That caused a lot of anxiety to the Mafuriranos as their plans to purchase a farm and business were thrown into disarray. Davis Sunganayi Mafurirano had to go to a Mr Turner to negotiate with him about the time they could pay him for the farm and business.

The deposit was paid in by Thokozani Khumalo on 26 October 2001. To the Mafurirano's further disappointment, Thokozani Khumalo paid in $1.5 million leaving a shortfall of $1 million. That payment was made on a Friday and Thokozani Khumalo had promised to pay the balance the next Monday but failed to do so.

The witness reminded Thokozani Khumalo of his promise but the reminder produced no result. He then decided to go and see Sibusiso Ndlovu who referred him to Naran whom the witness had not dealt with in relation to the sale of the house.

The witness said he embarked on fruitless efforts to have the outstanding part of the balance paid. He went to Thokozani Khumalo who referred him to Sibusiso Ndlovu who in turn referred him to Naran.

As if that was not enough trouble, Naran surprised him by allegedly saying:-

(a) Sibusiso Ndlovu had no right to enter into the agreement;

(b) He also pointed out that the house was over-priced and went on to say he could get a better house for that price in Ilanda or Famona; and

(c) He finally said of the $1.5 million that had been paid that far $1.1 million had to be returned (without specifying to whom) while the witness kept $400,000 for the inconvenience caused to him.

Naran allegedly made the above revelations at a meeting which he had with the witness on 7 November 2001.

The following day, Davis Sunganayi Mafurirano addressed the letter to Thokozani Khumalo quoted supra…,.

The witness denied that he meant to cancel the agreement by writing the letter. He contended that he was merely conveying to Thokozani Khumalo what his benefactor said at the meeting of the previous day. It was the witness' further contention that it was Naran, instead, who was canceling the agreement by revealing that he was not bound by it since Sibusiso Ndlovu had no mandate from him to conclude the agreement.

It was Davis Sunganayi Mafurirano's evidence that the series of letters written by him and his wife were merely intended to cajole Naran and Thokozani Khumalo into honouring their obligation. But, to their disappointment, no written response came from the buyers and their legal practitioners.

They were further disappointed by the fact that the buyers and their legal practitioners drew up the Agreement of Sale wherein they stipulated conditions which they never met. Hence their ultimate conclusion that Naran had cancelled the Agreement of Sale.

That was what prompted them to instruct their legal practitioners to write the final letter on 2 May 2002…,.

According to Davis Sunganayi Mafurirano, the letter was a mere acceptance of the fact that Naran had cancelled the Agreement of Sale.

Davis Sunganayi Mafurirano vehemently denied the suggestion that he was given $1 million dollars which was applied to the purchase of the house.

Davis Sunganayi Mafurirano was subjected to a lengthy and thorough cross-examination. He came out of the cross examination badly bruised as he could not give direct answers to questions and was evasive.

He, however, made it clear, under cross-examination, that, it was not correct that he had been given the $1 million for the purchase of bond paper which money was later applied to the purchase of the house. He said the issue of bond paper only involved $80,000 and not $1 million as had been suggested by the plaintiff. He then referred the court to a document attached to exhibit 3 reflecting that he indeed paid $80,000 for A4 paper on 18 October 2001.

He further emphasized, under cross examination, that, the various letters written to the buyers were not meant to cancel the agreement but were being used as a means to spur them into making payment. They were just a tactic to pressurize Naran and Thokozani Khumalo to honour their contractual obligations.

Davis Sunganayi Mafurirano maintained that the letter of 2 May 2002 was just an acceptance of the fact that Naran had cancelled the agreement.

There is merit in Davis Sunganayi Mafurirano's conclusion in the light of the following findings made by the court:

This court makes a finding that the plaintiff was in material breach of the agreement right from the onset.

He failed to pay the deposit on signing the agreement as stipulated. When he did so, a month later, what he paid was $1 million less than what the parties had agreed.

Although the plaintiff was in material breach of the agreement, the defendant, through desperation, kept on accepting and granting extensions resulting in the plaintiff taking advantage of her and grossly abused that advantage.

Demands for him to pay, coupled with repeated threats to cancel the Agreement of Sale, did not spur him into honouring his side of the bargain.

This court has already found that Naran was an unreliable witness who was not worth to be believed. He contradicted the evidence of Thokozani Khumalo and Sibusiso Ndlovu. He did not end there. He sought to distance himself from his pleadings.

This court further finds, that, the probabilities favour the story that the plaintiff said he was not bound by the agreement, and, in any event, the house was overpriced and he could get a better house for that price in Illanda or Famona.

Here is why:

He did not want to pay the deposit in terms of the agreement. When he did so, after a month, he only paid $1.5 million instead of $2.4 million. He claimed to have lent Davis Sunganayi Mafurirano a sum of $1 million which sum he alleged had been applied to the purchase of the house. As far as he was concerned a total of $2.5 million had been paid.

It is important to note that Naran said he had offered to buy the house for $2.5 million.

Interestingly, after he had paid an amount equal to $2.5 million he made no further payment towards the purchase of the house despite a series of letters urging him to pay. He was simply unwilling to pay more than $2.5 million.

He denied being aware of any of the letters claiming that he had only become aware of them two weeks before the trial.

He was clearly untruthful.

This court also finds that Davis Sunganayi Mafurirano did not answer questions directly and was evasive. He tended to give unsolicited explanations, but, the court cannot go so far as classifying him as a witness who was not worth to be believed.

He was just a seller who had been disappointed by the buyer who had no respect for the agreement the parties had entered into.

The buyer drafted the Sale Agreement and stipulated conditions therein which he thereafter disregarded with impunity.

The Mafuriranos urgently needed the money to purchase a farm and business which explains why they continued to grant extensions of time within which to pay.

In conclusion, this court finds, in the light of the foregoing, that, the plaintiff stated that he was no longer prepared to be held to the contract of sale hence his unwillingness to make any further payments beyond the sum of $2.5 million thereby cancelling the agreement.

He is therefore not entitled to tender the sum of $3,800,000 plus interest.

He is, however, entitled to a refund of $1,500,000 plus interest calculated from 31 October 2001.

He is further entitled to compensation for proved improvements, if any, effected to the said property.

The plaintiff is to blame for the failure of the Agreement of Sale and should accordingly bear the costs of suit.

HH90-10 : LOCAL AUTHORITIES PENSION FUND vs F & R TRAVEL TOURS AND CAR SALES (PVT) LTD and FREEJOY CHIGWIDA and RAPHAEL MAKWARA
Ruled By: MAKARAU JP

The applicant and the first respondent are landlord and tenant respectively. Their relationship commenced when they concluded a written agreement in respect of certain commercial premises situate at Throgmorton House, Samora Machel Avenue, in Harare. The agreement was for a period of one year, commencing on 1 July 2006 and terminating on 30 June 2007.

The second and third defendants, as directors of the first respondent, bound themselves as co–principal debtors under the lease agreement.

In July 2009, the applicant filed this application seeking an order evicting the respondents from the rented premises. In its founding affidavit, it averred that the respondents had breached the written lease agreement by failing to pay rentals and operating costs for the premises since January 2009. The amount of arrear rentals and outstanding operating costs was also prayed for in the order.

It is pertinent, in my view, that, at this stage, before I detail the opposition that was filed by the respondents, I comment on the manner in which the applicant proceeded to frame its cause of action against the respondents.

The applicant has alleged that the respondents are in breach of the written lease agreement of 2006.

It is common cause that the written lease agreement between the parties terminated by the effluxion of time in June 2007. As at the time of the filing of the application, it was no longer binding upon the parties and could thus not found a cause of action for the applicant.

Its terms and conditions may have continued to afford the respondents protection against eviction under the operation of the provisions of the Commercial Rent Regulations S.I. 276/83(“the Regulations”), under what is commonly referred to as statutory tenancy.

This is however not part of the averments made by the applicant in its founding affidavit.

In my view, statutory tenancy is not an issue that the court should take judicial notice of mero motu. It must be specifically pleaded as it brings into play different considerations regarding the respective rights of the parties. It is a separate cause of action, apart from the terminated lease agreement.

I shall avert to the provisions of the Commercial Rent Regulations S.I.276 of 1983 (“the Regulations”) in detail below.

At this stage, the point I am making is that the applicant could not validly seek to rely on an agreement that had terminated without first laying a legal basis for its revival so to say. As I shall show later, this may have fatally compromised the applicant's quest to recover its property from the tenant.

In opposing the application, the respondents argued, that, the written agreement between the parties provided for payment of rent in local currency, and, when that currency lost favour with traders and generally, the applicant sought to impose a rental in United States currency with the parties failing to reach agreement on the amount payable.

Again, I pause to make the point, that, the respondents were clearly relying on the protection against eviction afforded them by the Commercial Rent Regulations but did not specifically raise that defence in their papers.

In moving for the granting of the order sought in the draft, the applicant urged me to find that the parties had a written lease agreement, that, in terms of that lease agreement, the first respondent was obliged to pay rentals and operating costs monthly and in advance and that in breach of that agreement, the first respondent failed to pay any rent or operating costs from January 2009 to the date of the filing of the application.

As indicated above, the applicant's argument is flawed in one or two respects and does not flow from the facts that are common cause:

(i) Firstly, the written lease agreement terminated in July 2007. As from that date, the first respondent became a statutory tenant and the expired lease agreement can no longer found a cause of action between the parties.

The first respondent, in my view, can now only be competently evicted in terms of the provisions of the Rent Regulations.

It is common cause that the applicant is not proceeding in terms of the Rent Regulations, but is proceeding ex contractu, alleging breach of the written agreement.

(ii) Secondly, and assuming that the written lease agreement between the parties is still subsisting, then, in that event, the first respondent's obligation is to pay rentals monthly in advance in local currency. The obligation to pay rentals monthly in advance must have been imposed by some other agreement which has not been pleaded.

The applicant has urged me to find that the agreement to levy rentals in foreign currency, and in the sum of US$700 per month, was reached between the parties at a meeting that was held on 12 May 2009.

I cannot agree.

It is common cause, that, on 8 May 2009, the applicant addressed a letter of demand to the first respondent, claiming payment of the sum of US$4,497=75 as arrear rentals and the sum of US$1,772=81 as unpaid operating costs.

The parties met on 12 May 2009 to discuss the demand.

On the same day of the meeting, the first respondent responded to the letter of demand in writing, acknowledging the letter of demand and advising that at the meeting held with the applicant's representatives, it had been agreed that the first respondent would pay one thousand dollars towards the arrear rentals and the balance over two or three weeks.

It is worth noting that the meeting of 12 May 2009 was in response to the applicant's letter of demand. By then, the amount of the arrear rentals had already been calculated. In other words, the breach had already occurred.

It appears to me, that, by January 2009 the parties had not yet agreed on the rental payable for the premises.

As detailed above, the applicant seeks to rely on the alleged agreement concluded on 12 May 2009 - some five months after the alleged breach.

If the parties had agreed to the rentals in January 2009, why would they need to meet over the same issue in May?

Similarly, if the parties had not reached agreement on the rentals in January 2009, on what basis can they be held to have breached the contract before the parties had reached agreement on it?

These are questions that will go begging for an answer, as, in my view, the applicant has placed its cart before the horse. It has proved the breach before proving the agreement breached!

Assuming that I have erred in concluding that the applicant has placed its cart before the horse and that by application of some other legal principle, not argued before me, the applicant could prove that the agreement reached on 12 May 2009 could apply retrospectively, then, the denial of the agreement by the respondent would raise a material dispute incapable of resolution on the basis of the papers filed of record.

I have considered whether I can convert the proceedings before me into an action by referring the matter to trial.

In view of the reservations that I have regarding the cause of action that the applicant has pleaded in this matter, I am of the view that such exercise of discretion will not have the effect of saving to expedite the resolution of this matter or of saving costs.

Before I dispose of this matter, it is important, in my view, that I remark on the submissions made on behalf of the respondents.

They have argued, that, the first respondent is a statutory tenant and is protected against eviction. In this regard, they have relied on the provisions of section 22(2) of the Commercial Rent Regulations S.I.276 of 1983 (“the Regulations”) which provide as follows:

“(2) No order for the recovery of possession of commercial premises or for the ejectment of a lessee therefrom which is based on the fact of the lease having expired, either by the effluxion of time or in consequence of notice duly given by the lessor, shall be made by a court, so long as the lessee —

(a) Continues to pay the rent due within seven days of due date; and

(b) Performs the other conditions of the lease;
unless the court is satisfied that the lessor has good and sufficient grounds for requiring such order other than that —

(i) The lessee has declined to agree to an increase in rent; or

(ii) The lessor wishes to lease the premises to some other person.”

While the section specifically limits the right of landlords to recover their properties where leases have terminated by expiration for the reason given in the Commercial Rent Regulations S.I.276 of 1983 (the Regulations), it simultaneously creates the right in favour of the tenant to remain in occupation of the leased premises provided the tenant pays the rent that is due in terms of the lease within seven days of the due date and performs all the other conditions of the lease.

The provisions of the section seek to protect the genuine tenant, who is not in breach of any of the terms of the lease agreement, from being at the mercy of a landlord who may wish to let out the premises to another tenant.

The issue that exercises my mind in this application is whether the statutory tenancy remains viable where the rentals payable were fixed in local currency, in view of the lack of value now attaching to that currency.

It is trite that for a statutory tenancy to be created and thus earn protection, the tenant has to continue to pay the rent due within seven days of due date and perform the other conditions of the lease.

The practical difficulty that arises is that where the tenant's obligation is to pay in local currency, how does such a tenant remain protected when the rentals are neither payable nor constitute a valuable exchange for the right to use the landlord's tenant?

While it is not necessary for me to make a specific finding on this issue, I would venture to suggest, that, in circumstances similar to the facts before me, where the obligation in terms of the written agreement of sale was in local currency, the protection afforded by the statutory instrument, S.I.276 of 1983, becomes doubtful or of limited value as payments for rentals in local currency are ludicrous, and may, in some instances, be impossible to effect.

Finally, I wish to refer to the case of Negowac Services (Private) Limited v 3D Holdings (Private) Limited and Others HH144-09 in which MTSHIYA J was faced with facts similar to the ones before me.

In that case, in upholding the landlord's right to evict the tenant, the learned judge was of the view, that, the obligation of the tenant to continue paying rent on due date imposed by the Commercial Rent Regulations S.I.276 of 1983 (the Regulations), in turn, imposes an obligation on statutory tenants to pay “reasonable rentals” in respect of the property leased where the parties fail to reach agreement on the amount of rentals payable.

Counsel for the applicant urged me to follow the decision in that case.

Again, it is not necessary, in my view, that I distinguish this case from the application before me. It is my finding above that the applicant has not pleaded statutory tenancy as its cause of action. It has instead alleged breach of a specific written agreement and I have disposed of the matter on that basis.

Had the applicant approached the court on an action in rem, seeking to recover its property from the tenant on the basis that the parties had failed to reach agreement on a material term of the lease, I would have found the reasoning by MTSHIYA J very attractive in the general sense that the sine qua non for enjoying the use of the property of another is the payment of rent and one cannot hope to have that enjoyment for nothing.

In the absence of proof of payment of anything, a tenant would have no defence, in my view, to resist the enforcement of the right of an owner to recover their property. As PATEL J observes, a tenant is not entitled to withhold rentals except in a few and very limited instances: see Parkside Holdings (Private) Limited v Londoner Sports Bar HH66-05.

As I indicated above, the applicant has approached court alleging breach of a specific term of the lease agreement. It is my finding that the averred lease agreement is no longer binding on the parties, and, even if it were, it cast an obligation upon the first respondent in a currency that is now redundant.

On the basis of the foregoing, it is my view, that, the applicant has pleaded a cause of action that is not competent and cannot therefore succeed.

In the result, I make the following order:

1. The application is dismissed.

2. The applicant shall pay the respondents' costs.

HH103-09 : U-TOW TRAILERS (PRIVATE) LTD vs CITY OF HARARE and SUPERLUX (PRIVATE) LIMITED
Ruled By: MAKARAU JP

The brief background facts to this matter are largely common cause. I set them out as follows:

In 1994, the applicant entered into a lease agreement with the first respondent in respect of certain premises situate at Number 9 Market Street, Eastlea, Harare (“the premises”).

The lease agreement was constantly renewed over the years with the last renewal being agreed upon on 20 June 2007 for a further three years. Thus, the lease agreement between the parties is due to expire by effluxion of time on 31 March 2010.

It was a specific term of the agreement between the applicant and the first respondent that the applicant would not sublet the premises without the written consent of the lessor.

In 2008, the applicant and the second respondent reached an understanding in terms of which the second respondent moved onto and took occupation of part of the premises….,.

In January 2009, the first respondent wrote to the applicant, summarily terminating the lease agreement and seeking the ejectment of the applicant from the premises. This was on the allegation that the applicant was subletting the premises to the second respondent without the prior written consent of the lessor and in breach of the specific term of the lease agreement against sub-letting.

When the applicant tendered rentals for the month of February 2009, these were rejected on the basis that the lease agreement had been cancelled.

This, in turn, prompted the applicant to approach this court seeking;

(i) Firstly, an order holding the first respondent to the lease agreement on the basis that it was not sub letting to the second respondent as alleged; and

(ii) Secondly, an order ejecting the second respondent from the premises.

The application was opposed by both respondents.

In opposing the application, the first respondent contended that it had proceeded in terms of the lease agreement to summarily cancel the lease agreement as the applicant was in breach. It justified its action by relying on clause 21 of the lease agreement which provides that:

“If the lessees shall fail to pay the rent on the due date or at the latest within ten days thereafter or if the lessees shall commit any other breach of the terms or conditions of this lease then the Municipality shall have the right, in its discretion, summarily to terminate this lease and retake possession of the Stand without payment of any compensation whatsoever and without prejudice to any claim which it may have against the lessees for rent already due or for any damages which it may suffer by reason of such breach or termination.”

The second respondent's opposition to the application is, in my view, somewhat curious.

The second respondent is the alleged sub-lessee and it objects to the continuation of the lease agreement between the applicant and the first respondent. While admitting, as contended by the applicant, that it took occupation of the premises in anticipation of a joint venture between itself and the applicant, the second respondent does not proffer any defence as to why it should not be evicted from the premises at the instance of the applicant.

Instead, and curiously so as I have observed above, it adopts and pleads the case of the first respondent that the applicant was in breach of the lease agreement, indeed, epitomizing the proverbial stranger who mourns louder than the bereaved.

It further avers, that, in February 2009, when the applicant's rentals were turned down, this was because it had paid these in respect of the property. It however falls short of alleging that it is now the tenant in respect of the property.

In its opposing affidavit, the first respondent does not admit any formal relationship with the second respondent. It simply maintains that the applicant's rentals for February 2009 were not accepted as its lease had been cancelled.

I believe it is pertinent, at this stage, that I dispose of the issue between the applicant and the second respondent.

As observed above, the applicant is seeking the eviction of the second defendant from the premises on the basis that the proposed joint venture between the parties has failed.

This is not disputed by the second respondent which then proceeds to aver, that, after the joint venture had failed to materialize, the applicant demanded rentals from it, thereby creating the sublease.

The totality of the averments made by the second respondent, even if proved, do not constitute a defence to an order for eviction at the instance of the applicant. Thus, in the event that I find for the applicant and hold the first respondent to the agreement, I must perforce order the eviction of the second respondent from the premises on the basis that the second respondent has failed to proffer a defence to the applicant's claim.

The issue that remains for my determination is between the applicant and the first respondent: it is whether the first respondent was justified in summarily cancelling the lease agreement without first affording the applicant a chance to respond to the allegations that it was sub-letting the premises to the second respondent.

It is trite that even where a lease agreement grants the lessor the right to cancel the lease on account of breach and to re-take possession of the leased premises, as was the position between the applicant and the first respondent, such cancellation is always subject to the control of and confirmation by the court.

The lessor has to approach court for the confirmation of its cancellation of the agreement and for the eviction of the tenant. The right to summary termination of the lease agreement, no matter how clearly worded, does not oust the jurisdiction of the court to grant the eviction order.

The existence of the grounds for and the validity of the cancellation of the lease agreement are always subject to validation and confirmation by the court which alone can order the eviction of the defaulting tenant.

The lessor cannot exercise self-help and retake possession of the property without a court order - even where the agreement specifically provides so: see Livingstone v Solomon 1924 SR 117; Joubert v Bester 1977 (2) SA 641 (T); Towers v Chipata 1996 (2) ZLR 261 (HC): and Bater and Another v Muchengeti 1995 (1) ZLR 80 (SC)…,.

In casu, the first respondent did not independently approach the court for the eviction of the applicant after it became aware of the alleged breach in the form of subletting.

After being served by this application, it did not seek to counter apply for the confirmation of its cancellation of the lease agreement and the eviction of the applicant.

The validity of its actions, in cancelling the lease agreement and its threat to re-take possession of the premises, have been brought before the court by the applicant, not for its confirmation but for it to be set aside on the basis that the first respondent did not give the applicant an opportunity to respond to the allegations before it acted summarily.

Thus, it appears to me that even if I were to find that the purported cancellation of the lease agreement by the first respondent was justified in the circumstances, that finding would not automatically translate into an order evicting the applicant from the premises as there is no prayer before me for the eviction of the applicant from the property.

In my view, such a finding, if I were to make it, would simply lay the foundation for the issuance of an eviction order against the applicant at the instance of the first respondent whenever it is moved to seek such an order.

It is on the basis of the above, that, in my view, it is not necessary that I make a finding as to whether or not the applicant was subletting to the second respondent and was therefore in breach of the lease agreement.

In my view, to do so would be to tie down the court that may be approached by the first respondent for an order evicting the applicant from the property.

In my view, the legal issue that must be resolved in this matter is whether, in light of the promulgation of the Administrative Justice Act [Chapter 10.28] (“the Act”), the powers of the first respondent, as a local authority, to act summarily as it did, has been modified.

Hence, at the hearing of the matter, I directed the parties to make reference to the provisions of the Administrative Justice Act which came into operation on 3 September 2004.

My anxiety not to overlook the provisions of the Administrative Justice Act was prompted by the admitted fact that the first respondent acted strictly in terms of the lease agreement between the parties and did not afford the applicant a chance to be heard before it summarily cancelled the lease agreement on the allegation that the applicant was sub-letting the premises to the second respondent.

I have now received extensive heads of argument from both counsel in this matter and I appreciate the assistance rendered me in this regard.

Counsel for the first respondent, ingeniously in my view, put the issues that arise from a consideration of the provisions of the Administrative Justice Act as follows:

“1. Whether or not the applicant, by entering into a lease agreement which entitles first respondent to summarily terminate the lease agreement, can be held to have waived its right to be heard as provided (for) in the Administrative Justice Act.

2. Whether or not first respondent cannot validly enter into a contract with the applicant which varies or excludes some provisions of the Administrative Justice Act.”

I view the settling of the issues by counsel for the first respondent as ingenious as the Administrative Justice Act came into operation on 3 September 2004 when the parties were already in the landlord and tenant relationship.

The applicant could thus not have waived rights under the Administrative Justice Act when it contracted with the first respondent as such rights were not in existence and had not accrued to it.

HH27-07 : EDWARD MARUME and ELLEN CHAMUNORWA vs TODD MURANGANWA
Ruled By: MAKARAU JP

This matter came before me in Motion Court as an application for default judgment in terms of Rule 58 of the High Court Rules, 1971.

The facts of the matter, as set out in the plaintiffs' affidavit of evidence, are as follows:

The plaintiffs are husband and wife. On 12 April 2005, they sold their rights, title, and interests in a certain piece of land in Budiriro Township in Harare. The agreement of sale was in writing.

It was a specific term of the agreement that the full purchase price would be financed from the proceeds of a staff loan to be advanced to the defendant from his employer.

It was also specifically agreed between the parties that the purchase price would be paid in full against the registration of a mortgage bond within 21 days of the signing of the Agreement of Sale.

On 13 July 2005, the 21-day period having long expired, the plaintiffs caused a letter to be sent to the defendant calling upon him to rectify the breach failing which the contract of sale would be considered cancelled.

In the letter, the plaintiffs also reserved to themselves the right to claim damages for the breach.

Unbeknown to the plaintiffs, the property had been transferred to the purchaser on 21 June 2005 - weeks before the letter of demand was sent.

Payment of the purchase price was only made on 2 August 2005 less certain deductions that were detailed in the letter from the conveyancers enclosing the cheque.

The cheque was sent back with a letter alleging that the Agreement of Sale had been cancelled and a reversal of the transfer would be sought.

On 3 March 2006, the plaintiffs issued summons against the defendant, claiming the sum of $366,503,000, being damages for breach of contract.

The summons was duly served personally on the defendant at his place of residence.

The dies induciae limited in the summons expired without the defendant taking any steps to defend the claim. The plaintiffs then applied for judgment, arguing that due to inflation, the amount of the cheque sent to them had been eroded by about 75%.

They further argued that the purchase price of the property was meant for an investment in a farming venture where the plaintiffs anticipated growing wheat for the 2005 season. Due to the delay in the payment of the funds, they missed their target and the tractor they intended to purchase had since increased in price.

In support of their claim, the plaintiffs attached a valuation report showing the value of the property as at 28 January 2006, months after the purchase price was tendered to the plaintiffs and months after the purchase price was due in terms of the Agreement of Sale.

When the matter was called up before me as an unopposed application for default judgment, I raised a number of issues with the plaintiffs' legal practitioners and requested him to file heads of argument to address those issues.

Heads were only brought to my attention on 29 March 2007, hence the delay in the handing down of the judgment.

Two issues have exercised my mind in this matter:

(i) Firstly, it is whether by allowing transfer of ownership in the property to pass to the defendant well aware of the breach, the plaintiffs can still claim damages based on the same breach....,.

It is common cause that the plaintiffs sent a letter placing the defendant in mora on 13 July 2005.

At the time, it is further common cause that the plaintiffs had passed transfer of the property sold to the defendant well knowing of the breach. Transfer of the property by the plaintiffs was performance of their side of the bargain under the Agreement of Sale.

It matters not, in my view, that transfer was effected by the conveyancers as such conveyancers were acting on a power of attorney drawn in their favour by the plaintiffs. Such power of attorney was not revoked - even after it became clear to the plaintiffs that the defendant had committed a breach of the terms of the contract of sale entitling them to cancel.

The plaintiffs' legal practitioners did not refer me to any authority where the performance of the contract by the aggrieved party, well aware of the breach by the other, still entitled the aggrieved party to claim for damages based on the same breach.

In my view, the conduct of the plaintiffs amounts to approbating and reprobating at the same time.

By allowing transfer to go through in the circumstances of this matter, the plaintiffs arguably gave out to the defendant that they had condoned the delay in the payment of the purchase price.

While I am of the firm view that the plaintiffs cannot rely on the breach by the defendant to claim damages in the circumstances of this matter, it is not necessary that I resolve the matter on this basis.

HH224-22 : MUTSA DENHERE and DEMMUSK ENTERPRISES (PVT) LTD vs FAENSA FRISCO LIMITED
Ruled By: CHIRAWU-MUGOMBA J

The genesis of this matter lies in proceedings held under case number HC8844/12. In that matter, the respondent in casu obtained an order against the applicants as follows:

1. Judgement be and is hereby entered in favour of the plaintiff against defendants jointly and severally the one paying the other to be absolved in the sum of US$43,065.

2. Defendants pay, jointly and severally, the one paying the other to be absolved penalty interest at the rate of 4% per month on the sum of US$41,800 from the 24th of August 2021 to date of payment in full.

3. Costs of suit on an attorney and client scale.

The applicants' case is as follows:

The second applicant entered into a loan facility with the respondent for a total sum of US$45,000 constituting US$15,000 roll over and a new sum of US$30,000. This money was disbursed to the applicants.

It was a material term of the loan agreement that since the respondent is a foreign entity, it had to obtain exchange control approval from the Reserve Bank and this was also in terms of Clause 7:10.

Such proof was never furnished despite the payment supposedly coming from Mauritius.

In pursuance of a writ of execution in case no. HC8844/12, the Sheriff of the High Court visited the first applicant's place of residence armed with a notice of seizure and attachment. This writ was in Zimbabwean dollars and her legal practitioners paid on her behalf the sum of ZW$50,878.

The respondent's legal practitioners however insisted that the payment had to be in United States Dollars. This was ostensibly on the basis that the amount owed was a foreign debt.

The circumstances of the loan however point out to the fact that it was not a foreign obligation as claimed. It was actually a fraud based on the fact that no exchange control authority was sought and obtained.

The loan agreement was executed in Harare, the funds were to be used in Zimbabwe, the laws of Zimbabwe apply and the respondent's representative ordinarily resided in Zimbabwe.

The applicants therefore sought an order declaring the loan agreement entered into by the parties on the 18th of November 2010 as null and void and the discharging of the sureties.

In addition, they sought an order of costs on a higher scale.

Alternatively, they sought a declaratur that the ZW$50,878 is in full and final settlement of the respondents judgment debt.

In responding to the application, the respondent raised points in limine.

They contended that the applicants and respondents entered into the loan agreement in 2010 and the applicants defaulted in 2012 leading to institution of proceedings. They were aware of the existence of the agreement but did not challenge it. They entered into a Deed of Settlement which resulted in the default judgment against them when they failed to honour the agreement. They should have challenged the validity of the agreement within three (3) years but they did not do so. They cannot seek to enforce an agreement nearly nine years after.

Their claim for a declaratur has prescribed.

Additionally, the relief they seek has been overtaken by events. The Deed of Settlement settled the obligations between the parties which Deed became the cause of action resulting in the obtaining of the default judgment. The judgment remains extant and they have not challenged its validity. The applicants are estopped from challenging the validity of the loan agreement.

In any event the applicants are seeking an opinion and not a declaratur.

On the merits, the respondent averred as follows:

It is a duly registered company located in Mauritius. A copy of a certificate of incorporation was attached.

The second applicant and the respondent entered into a loan agreement as stated in the founding affidavit. The advance was made from Mauritius where the respondent is incorporated. Inserted into the loan agreement were warranties to ensure compliance with the laws of Zimbabwe.

The loan agreement did not require exchange control authority as contended by the applicants.

The loan amount was credited into the second applicant's Standard Chartered bank account held in Zimbabwe. The applicants made some payments, specifically a payment of US$2,000 (two thousand) via telegraphic transfer on the 15th of June 2012 to the respondent's bank account held in Mauritius but subsequently defaulted which resulted in the institution of legal proceedings on the 8th of August 2012.

Thereafter, the respondent obtained judgment against the applicants based on a Deed of Settlement.

Further, that the debt is owed to a foreign entity and should be paid in United States Dollars.

The fact that the writ and notice of removal by the Sheriff was in Zimbabwe dollars does not make it less so. The court order upon which the debt is based is expressed in United States dollars. The fact that the loan agreement was executed in Zimbabwe, by a borrower in Zimbabwe, for use in Zimbabwe is irrelevant as is the fact that the respondent's representative was based in Zimbabwe.

What defines whether or not a loan is a foreign obligation is the source of the funds.

The applicants cannot deny that the respondent is registered in Mauritius and funds were transferred from a bank in Mauritius.

At the hearing, after counsel for the respondent had made submissions on the points in limine, counsel for the applicants, in response, abandoned the main relief sought and submitted that the applicants were now only seeking the alternative relief.

The alternative relief is couched as follows:

Alternatively -

(a) It is declared that the applicants payment of ZW$50,878 is a full and final settlement of the respondent's judgment debt.

(b) The respondent shall pay costs of suit on the higher scale of legal practitioner and client scale.

View Appeal
HH601-14 : SHI JINWU vs BIG VALLEY MASTERS (PRIVATE) LIMITED and PHILLIMON MUBATA
Ruled By: CHIGUMBA J

It has been said that:“…, waiver is a bilateral transaction and does not result from a unilateral declaration or a decision…,.:” see Alberts v Bryson 1976 (2) RLR 193 (A) 198, 1977 (1) SA 857 860.

View Appeal
HH329-17 : MARINDA FENESEY vs GATEWAY PRIMARY SCHOOL and K M RICQUEBOURG N.O. and GATEWAY PRIMARY SCHOOL PARENTS ASSOCIATION and THE SHERIFF OF ZIMBABWE
Ruled By: MUSAKWA J

This is an application for a spoliation order. The draft order reads as follows -“TERMS OF FINAL ORDER SOUGHTThat you show cause to this Honourable Court why a final order should not be made in the following terms;1. The 1st, 2nd and 3rd Respondents be and are hereby interdicted from ...

This is an application for a spoliation order. The draft order reads as follows -

“TERMS OF 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 1st, 2nd and 3rd Respondents be and are hereby interdicted from interfering in any manner with the Applicant's business operations at the tuck shop situated at Gateway Primary School, including, but not limited to barring her potential customers from buying from the tuckshop.

2. The1st, 2nd and 3rd Respondents be and are hereby ordered not to unlawfully evict the Applicant from the tuck-shop at Gateway Primary School.

3. The 1st, 2nd and 3rd Respondents to pay costs of suit on an attorney and client scale, the one paying the others to be absolved.

INTERIM RELIEF GRANTED

Pending confirmation or discharge of the provisional order, the Applicant is granted the following relief:

1. The 1st, 2nd and 3rd Respondents be and are hereby ordered to remove their additional locks at the tuckshop at Gateway Primary School upon service of this order and take all necessary steps to ensure that the Applicant's peaceful and undisturbed occupation of the tuck shop is restored failing which the 4th Respondent be and is hereby authorized to remove the locks above said (sic).

2. The 2nd Applicant (sic) be and is hereby ordered to publicly, and at an assembly, reverse the order he imposed on school pupils and teachers not to buy at the Applicant's tuck shop at Gateway Primary School.

3. The Applicant's legal practitioners are hereby given leave to serve the order on the Respondents.”

The background to this application is that the applicant leased a tuckshop that is situated at Gateway Primary School. The agreement was concluded with the Parents Association Committee of Gateway Primary School.

The applicant has been a statutory tenant since 2011.

On 6 February 2017, the applicant was given notice of termination of the lease with effect from 6 April 2017.

On 5 April 2017, the applicant's legal practitioners wrote to the chairman of the Parents Association Committee challenging the termination of the lease without good cause.

The applicant claims that she stocked the tuckshop in anticipation of the opening of the second term of schooling.

On 9 May 2017, which was the opening day of school, it is alleged that the second respondent barred everyone from buying from the tuck shop. The ban was announced at the school assembly. People were deployed to guard against anyone buying from the tuckshop. The applicant tried to engage the second respondent to no avail.

On 10 May 2017, the applicant found that additional locks had been installed on the tuck shop. As a result, she has not been able to access the tuck-shop.

It is the applicant's contention, that, she had hitherto been in peaceful and undisturbed possession of the tuck shop. Consequently, she was despoiled of her peaceful and undisturbed possession of the tuckshop.

The respondents contend, that, the applicant accepted the termination of the lease. She only flipped on 5 April 2017.

When she voluntarily gave up possession, the Gateway Schools Trust took over the premises.

It is also contended, that, the applicant was never in possession of the premises during the month of April. It is also disputed that she stocked the tuck shop.

There is further averment that the second and third respondents did what was in the best interests of the pupils whom the applicant was swearing at.

Although in the opposing papers the respondents had raised some points in limine, counsel for the respondents abandoned them in favour of the matter being heard on the merits.

That is quite commendable, as it has become predictable, in urgent applications, for the opposing side to raise preliminary issues.

Counsel for the applicant submitted, that, there was no response to the letter of 5 April, which suggests an admission of the unlawful conduct complained of. He further submitted, that, in terms of the oral lease, the applicant would not pay rentals during school holidays as there was no business to be conducted. However, the applicant had access to the tuck shop during the holidays.

The denial of access, by placing additional locks, is in violation of section 24 of the Commercial Premises (Rent) Regulations, S.I.676 of1983, SI676/83.

He further submitted that a tuck shop fits within the definition of commercial premises.

Regarding the contention that a spoliation order may not be granted where it is not practicable to do so, counsel for the applicant submitted that there is no averment that someone else has taken over the premises.

In submitting that the requirements for spoliation had been proven, he outlined them as -

(a) Peaceful and undisturbed possession; and

(b) Unlawful deprivation.

Whilst conceding the legal requirements for spoliation, counsel for the respondents submitted that this is not a case of spoliation.

According to him, spoliation is proprietary and does not apply to personal rights. He further submitted, that, the applicant's possession of the premises ended when the lease was terminated. Thus, possession of immovable property must be factual. Quasi-possession does not apply.

Counsel for the respondents also submitted that the applicant was misconceived to claim that the Commercial Premises (Rent) Regulations, SI676/1983 apply to the facts of the matter. This is because Gateway Primary School does not constitute commercial premises.

Counsel for the respondents further submitted, on the authority of De Jager and Others v Farah and Nestadt 1947 (4) SA 28 that a court has discretion not to grant a spoliation order where it is not practicable to do so.

Thus, it was his submission that the applicant's return to the premises would poison the learning environment. This is because the relationship between the parties is said to have deteriorated.

Reference was made to an incident wherein the applicant is said to have scolded one pupil calling her an idiot.

I do not think that it can be argued, seriously, that the applicant was not in possession of the tuck shop.

Once it is admitted that there was a lease agreement, then the issue of possession is established.

The applicant had access to the tuckshop from where she conducted her business.

Even though the applicant was not in exclusive possession of the tuck-shop, as it would be closed during holidays, it cannot be said she forfeited her overall physical control.

I am not persuaded that the tuck shop does not constitute commercial premises.

This is because, in terms of the Commercial Premises (Rent) Regulations, S.I.676/83 commercial premises are defined as -

“'commercial premises' means any premises, or part thereof, occupied under a lease for the purpose of carrying on therein any industry, business, trade or occupation, and includes any ground, parking-space, garage, outbuilding, workers quarters, and other improvement let therewith;”

There is no doubt that the applicant was conducting business under a lease with the respondents. This is irrespective of the fact that Gateway Primary School, on which the tuckshop is situated, may not be commercial premises for other purposes.

For purposes of a spoliation order, possession is not dependent on who has better title between an applicant and the spoliator.

What is necessary to prove is that the applicant was unlawfully dispossessed, or was unlawfully prevented from resuming possession after temporarily relinquishing physical control over the thing where there is reasonable belief that the applicant would be able to resume such control whenever he required the thing: see H. SILBERBERG, The Law of Property -1975.

With the requirements for spoliation having been set out, the only valid defences available are that -

(a) The applicant was not in peaceful and undisturbed possession of the thing in question at the time of the dispossession;

(b) The dispossession was not unlawful and therefore did not constitute spoliation;

(c) Restoration of possession is impossible;

(d) The respondent acted within the limits of counter-spoliation in regaining possession of the article.

In this respect, see the case of Kama Construction (Pvt) Ltd v Cold Comfort Farm Co-Operative and Others 1999 (2) ZLR 19 (SC).

There is dispute between the parties regarding whether the applicant had relinquished possession of the tuck shop by virtue of the notice that was given by the third respondent.

The applicant denies that she acquiesced to the notice, hence the letter of 5 April.

The other contention is that if she had voluntarily vacated the tuck shop, there would have been no need to install the additional locks. In addition, there would have been no need to make an announcement at assembly.

I would therefore hold, that, the applicant was unlawfully deprived of possession of the tuckshop. This destroys the respondents defence that the applicant voluntarily vacated the tuck shop.

SC108-21 : VALENTINE MUSHAYAKURARA vs ZIMBABWE LEAF TOBACCO COMPANY (PRIVATE) LIMITED
Ruled By: MALABA CJ, UCHENA JA and CHIWESHE AJA

At the hearing of the appeal, the Court found, that, the appeal was devoid of merit, as the funds advanced to the appellant, by the respondent, to finance the production of his 2016–2017 tobacco crop were from offshore funding.

The decision of the Court was based on the interpretation of the agreement for tobacco growing and financing entered into by the parties on 19 July 2016, the acknowledgement of debt dated 19 September 2017, and the Deed of Settlement dated 18 September 2018.

The three documents show that the parties agreed on three important matters. These were –

(1) The respondent advanced to the appellant funds to finance tobacco production for the 2016/2017 growing season;

(2) The money advanced to the appellant, by the respondent, was part of funds it raised from offshore lines of credit for the specific purpose of financing tobacco production. The currency to be utilised in light of the underlying source of the funds in the denomination of the obligations of the parties was the United States dollar; and

(3) The respondent had to recover the money from the appellant in the currency that would enable it to repay its foreign obligations.

In the result, the Court dismissed the appeal with costs and indicated that reasons for the decision would follow in due course. These are they.

The appeal is against a decision of the High Court (“the court a quo”) handed down on 18 March 2020.

The issue in the court a quo was whether the respondent advanced United States dollars in cash and in the form of inputs to the appellant as crop financing for the June 2016 to April 2017 tobacco farming season.

It was the appellant's position, that, the funds advanced to him by the respondent were in the form of Real Time Gross Settlement cash (hereinafter referred to as “RTGS dollars”) transferred into his local bank account and inputs procured using RTGS dollars.

The court a quo found, that, there was overwhelming documentary evidence proving that off-shore funds were employed by the respondent to finance the appellant's 2016/2017 tobacco crop.

It further found, that, the amount in question could not be repaid in RTGS dollars, as section 44C(2)(b) of the Reserve Bank of Zimbabwe Act [Chapter 22:15] (hereinafter referred to as “the Reserve Bank Act”) explicitly excludes foreign obligations valued and expressed in United States dollars from the deemed parity valuation in RTGS dollars.

As a result, it found in favour of the respondent and ordered that the appellant should repay the advanced funds in United States dollars.

The respondent is a company duly incorporated in terms of the laws of Zimbabwe. Its business includes accessing off shore funds and using them to finance tobacco farming. The appellant is a tobacco farmer.

In 2016, the respondent accessed offshore funding to lend to tobacco growers for the 2016/2017 tobacco season.

On 19 July 2016, the appellant and the respondent entered into a tobacco growers agreement, in terms of which the former accessed crop financing from the latter in the form of cash, as working capital, as well as inputs.

On 19 September 2017, the appellant signed an acknowledgement of debt in favour of the respondent. In that document, the appellant acknowledged being indebted to the respondent in the sum of US$101,089=46.

The appellant failed to repay the debt. This prompted the respondent to issue a summons for provisional sentence in the sum of US$101,089=46 and interest at the agreed rate.

The appellant did not defend the action.

The parties signed a Deed of Settlement, in terms of which the sum of US$101,089=46, plus interest at the agreed rate, and costs in the sum of US$3,000 together with 15% Value Added Tax on the costs, had to be paid in annual instalments of US$30,000. Each instalment was payable on or before 31 August of each year, commencing 31 August 2019.

On 31 August 2019, the appellant tendered an initial instalment payment of RTGS$30,000.

The respondent rejected the tender. It insisted that the correct currency was United States dollars and consequently demanded payment in that currency.

The respondent invoked clause 5 of the Deed of Settlement. The clause reads:

“5. In the event that the defendant fails to pay any of the amounts due in terms of this deed of settlement on the due date, the plaintiff shall be entitled to apply for default judgment for payment of the outstanding amount from the defendant without notice to the defendant. In that regard, the plaintiff shall be entitled to seek any further costs incurred by it from the defendant on a legal practitioner and client scale.”

Accordingly, the respondent filed a chamber application for default judgement.

In the court a quo, the respondent contended, that, it advanced United States dollars-denominated inputs and cash to the appellant as crop financing for the June 2016 to April 2017 growing season.

On the other hand, the appellant argued, that, the cash he received was in the form of RTGS dollars transferred into his local bank account and inputs procured using RTGS dollars.

The court a quo found, that, offshore funds were employed by the respondent to finance the appellant's 2016/2017 tobacco crop.

It also noted, that, the appellant failed to substantiate his averment that the funding that he obtained was in RTGS dollars.

The court a quo found in favour of the respondent and granted the application with costs.

THE APPELLANT'S SUBMISSIONS

At the hearing, the Court requested the parties to address it on the question whether the contract arrangement entered into between the appellant and the respondent gave rise to the performance by the respondent of the obligation under the offshore loan agreement.

In his heads of argument and oral submissions, the appellant submitted, that, Clause 3 of the loan agreement, relating to the grower's obligations, did not specify the denomination of the currency in which the funds would be advanced to a tobacco grower. The appellant submitted, that, the agreement between the parties was silent with regards to the currency to be used to repay the loan.

He argued, that, the court a quo was not entitled to go behind the Deed of Settlement entered into between the parties in resolving the matter.

He submitted that the Deed of Settlement constituted a compromise or a transactio.

He argued that the Deed of Settlement made no mention of offshore funding.

It was further submitted, that, by tendering RTGS$30,000 the appellant lawfully discharged his liability to the respondent in terms of Statutory Instrument 33 of 2019 (SI33/19). This was on the basis that section 4(1)(d) of SI33 of 2019 provided that liabilities that were valued and expressed in United States dollars immediately before the effective date were deemed to be valued in RTGS dollars at a rate of one-to-one to the United States dollar.

THE RESPONDENT'S SUBMISSIONS

Counsel for the respondent submitted, that, the funds advanced to the appellant were from offshore funding and the amount in question had to be repaid in United States dollars.

It was further submitted, that, the argument that the Deed of Settlement constituted a compromise was of no legal consequence, as the issue of the currency in which the debt was to be repaid was never in issue. The issue of the currency was never compromised.

APPLICATION OF THE LAW TO THE FACTS

In the case of Zambezi Gas (Pvt) Ltd v N.R. Barber & Anor SC03-20, in interpreting section 4(1)(d) of S.I.33/19 the Court held, that, contractual obligations valued in United States dollars immediately before the effective date were to be paid in RTGS dollars at parity or at a one-to-one rate. The court stated the following at p13 of the cyclostyled judgment:

“Section 4(1)(d) of SI33/19 states, that, for such sui generis liabilities, including judgment debts, a rate of one-to-one between the United States dollar and the RTGS dollar will apply. The transactions entered into after the effective date would fall under the provisions of section 4(1)(e) of SI33/19.”

However, section 44C of the Reserve Bank of Zimbabwe Act [Chapter 22:15] reads as follows:

“44C Issuance and legal tender of electronic currency

(1)…,.

(2) For the avoidance of doubt, it is declared, that, the issuance of any electronic currency shall not affect or apply in respect of –

(a)…,.

(b) Foreign loans and foreign obligations denominated in any foreign currency, which shall continue to be payable in such foreign currency.”…,.

Section 44C of the Reserve Bank Act is an exception to the parity rate.

In Breastplate Service (Pvt) Ltd v Cambria Africa Plc SC66-20 the Court stated as follows at p5 of the judgement:

“What emerges clearly and unequivocally from section 44C(2)(b) of the Reserve Bank Act, as read with section 4(1)(d) of SI33 of 2019, is that foreign loans and obligations denominated in any foreign currency are excluded from the broad remit of S.I.33 of 2019. Thus, foreign loans and obligations continue to be valued and payable in the foreign currency in which they are denominated.”

The term “foreign loans and obligations denominated in any foreign currency” as it appears in section 44C(2) of the Reserve Bank Act, is not defined in SI33 of 2019.

As stated in Breastplate Service (Pvt) Ltd v Cambria Africa Plc SC66-20, its meaning, in any given case, must be ascertained from the factual circumstances of the parties involved and the material substance of the transaction that they have entered into.

Section 44C(2)(b) of the Reserve Bank Act makes it clear, that, the issuance of any electronic currency, that is RTGS dollars, shall not affect or apply to any foreign obligation, as the provision explicitly excludes foreign obligations valued and expressed in United States dollars from the deemed parity valuation in RTGS dollars.

It is settled, that, the effect of SI33/19 was to render all assets and liabilities, except those referred to in section 44C(2)(b) of the Reserve Bank Act, as values in RTGS dollars at the exchange rates prescribed.

It was the appellant's position, that, since the parties had concluded a Deed of Settlement, the court a quo was not entitled to take into consideration agreements that preceded the Deed of Settlement.

The appellant argued that the Deed of Settlement constituted a compromise.

It was the appellant's further submission, that, it did not matter that the debt had been expressed in United States dollars. The argument was that the issue was whether the appellant could discharge his liability in RTGS dollars at the rate of one-to-one in terms of SI33 of 2019.

The Deed of Settlement, and the preceding contracts, have to be read together for a proper understanding of the arrangement the parties entered into.

The source of the funds had to be established first for the Court to be able to make a determination of the issue of the currency in which the debt, admittedly due, had to be repaid.

The court a quo stated as follows in relation to its findings on the source of funding at p4 of its judgment:

“In proving its source of funding for the 2016–2017 tobacco cropping season, the applicant had attached a letter dated 28 May 2015 by Standard Chartered Bank addressed to the Export Finance Manager of the applicant.

In that letter, the bank confirmed, that, the Reserve Bank of Zimbabwe had authorised the applicant to draw down US$25,494,506 from their offshore lines of credit to finance the 2015–2016 tobacco growing season.”

It is on record, that, the appellant accepted that if evidence was presented establishing that the loan he received was from offshore funding, the debt would have to be settled in United States dollars.

The court was seized with a sui generis contract.

The tobacco grower agreement cannot be examined without reference to the source of funding.

This is so because the nature of the funds advanced to tobacco growers under offshore funding contract arrangements must be preserved, as the funds are sourced solely for the purposes of tobacco growing.

The term “Crop Finance” as provided for in the Tobacco Grower Contract Agreement, clearly links the money involved to off shore funds.

If the respondent is an authorised dealer, the understanding is that funds obtained and advanced in United States dollars are repayable in the denominated currency.

Tobacco is a crop that is sold in the market in foreign currency to enable beneficiaries of off-shore funding arrangements to repay their creditors in foreign currency so that the latter are able to service their offshore funding contractual obligations.

A party enters into a tobacco growers contract, knowing that he or she or it is to be funded by an offshore loan denominated in United States dollars. He or she or it undertakes the obligation to repay the loan in that currency. As a consequence, the contract arrangements entered into by the individual tobacco growers and the respondent are an execution of the obligation to perform the offshore funding contracts entered into by the respondent and its creditors.

If payment were to be made in RTGS dollars, contrary to the clear and unambiguous language of section 44C(2)(b) of the Reserve Bank Act, the purpose of the provision of ensuring that tobacco farmers benefit from offshore funding lines of credit accessible to the respondent and others in similar business would be defeated to the detriment of the national interest in the protection and promotion of the development of the tobacco industry.

The court a quo cannot be faulted for holding, that, the funds advanced to the appellant had to be repaid in United States dollars.

Zambezi Gas (Pvt) Ltd v NR Barber & Anor SC03-20 is distinguishable from the present matter.

The present case relates to offshore funding.

The obligation incurred by the respondent was a foreign obligation denominated in foreign currency within the contemplation of section 44C of the Reserve Bank of Zimbabwe Act [Chapter 22:15].

The Deed of Settlement was entered into for the purpose of allowing the appellant to repay the debt he acknowledged to be owing in instalments in United States dollars. The Deed of Settlement was for the benefit of the appellant. The appellant cannot escape the obligation he voluntarily undertook to repay the funds advanced to him in United States dollars for the specific purpose of financing the production of the tobacco crop by calling the Deed of Settlement a compromise.

There was no dispute between the parties over the currency in which the offshore funds received by the appellant, from the respondent, had to be repaid.

The respondent was entitled to invoke the provisions of section 44C(2)(b) of the Reserve Bank of Zimbabwe Act [Chapter 22:15] to protect its rights to the repayment of the offshore funds advanced to the appellant in United States dollars under the Deed of Settlement.

HB57-15 : SIPIWO NKOMO vs MLWELIWENKULULEKO NCUBE
Ruled By: MUTEMA J

This is an application for rescission of a default judgment that was granted against the applicant in case number HC548/14.

The facts relevant to the resolution of the dispute between the parties are briefly these:

The applicant sold a BMW X5 motor vehicle registration number ACX 0734 to the respondent. The respondent paid a deposit of $12,000 and took possession of the vehicle. He, however, failed to pay the balance of $12,175.

The applicant then sued for the balance under case number HC2869/13 and obtained default judgment.

As a follow up to the default judgment, a writ of execution was issued which resulted in the vehicle in question being attached by the Deputy Sheriff.

The respondent filed an application for rescission of the default judgement under case number HC548/14.

The applicant's legal practitioners drew up papers to oppose the application, but, before they filed them, the parties reached a settlement which culminated in the signing of an agreement annexure “D” to applicant's founding affidavit. It was drafted in these words:

“MEMORANDUM OF AGREEMENT

It be and is hereby recorded that following a meeting between:

Plaintiff and her legal practitioner Mr G. Nyoni

Defendant and his legal practitioner Mr S.S. Mazibisa

It was agreed without force; duress and undue influence and the parties conscious of what they were doing, that:

1.The execution of Defendant's property be stayed only and strictly on the following conditions:

(a) That, he pays US$5,000 on 15 April 2014 and US$5,175 on the 6th of May 2014.

(b) That, he pays US$578 paid by Plaintiff to Sheriff of Zimbabwe; Sheriff's further costs and commission; interest of US$250 and costs as will be taxed, all by the 27th of May 2014.

2. The BMW X5 registration number ACX 0734 shall be removed by plaintiff from the Sheriff of Zimbabwe, at Defendant's expense (i.e. storage charges) and kept at Plaintiff's place or other safe place until the defendant has fully paid all monies detailed in paragraph (1) above.

3. Should the Defendant fail to make any one of the payments mentioned in (1) above, the plaintiff shall, without notice to the Defendant, take the vehicle to a car dealer (sellers of second hand vehicles) for the car to be sold by private treat at such reasonable price as will be determined thereat.

4. This memorandum shall stand as Defendant's mandate to the Plaintiff and the said car dealer to sell and transfer the car to the would-be purchaser.

DATED at BULAWAYO on this the 26 day of MARCH 2014.”

It was signed by both parties and their respective legal practitioners.

As a result of the agreement, the application and opposition for rescission under case number HC548/14 could not be pursued.

The respondent failed to meet the payments stipulated in the agreement of 26 March 2014 and the vehicle was taken to a dealer, but, the highest offer received was US9,000. There followed a series of correspondence between the parties legal practitioners concerning the value of the vehicle and whether the respondent should pay the applicant's costs.

On 3 September 2014, the current legal practitioners of the respondent wrote to the applicant's legal practitioners as follows:

“RE: M. NCUBE vs SIPIWO NKOMO

The above matter refers and to our previous conversation.

Kindly note, that, I am preparing a payment plan which is to commence at the end of September 2014 inclusive of clearing the balance if that option is still possible then.

In the meantime, may I please have photocopies of all the filed pleadings since Messrs Cheda and Partners seem to have lost the whole file in their moving offices. I have tried to photocopy directly from the High Court, but, at a dollar per page, it was too stiff, hence the favour that I now seek.”

The respondent was obliged with the documents he requested, which papers he then used to pursue his application for rescission of judgment in case number HC548/14 which had been laid in abeyance by the memorandum of agreement alluded to above - without alerting the applicant.

On 23 October 2014, the respondent obtained a default judgment, with costs, rescinding the judgment the applicant had obtained in HC2869/13.

The applicant says she was shocked to receive a letter, on 19 November 2014, written to her legal practitioners by the respondent's current legal practitioners to this effect:

“RE: MLWELIWENKULULEKO NCUBE vs SIPIWO NKOMO HC548/14 X REF HC2869/13

The above matter refers and to the attached court order.

Be advised that we have since obtained a rescission of judgment of the order which was in favour of your client. Mr Ncube had clearly wanted this matter to rest and had resigned himself to losing both the BMW X5 and the money, a sum of US$12,000, plus other monies that he had paid to the sheriff.

What he then found unfair was the fact that your client wanted to further make him pay a sum in excess of US$2,000 as legal costs when she had both the car and the money. Clearly, that was for all to see, a gross injustice.

In light of the rescission of judgment may the status quo before the judgment be restored, and the matter proceed through normal trial route and Mr Ncube pays the balance which was owing. Failing which, may your client make arrangements to refund the money paid to her by Mr Ncube, by the 1st of December, 2014.

As yours took back possession of the vehicle, which she is using, as we are told by Mr Ncube that he has seen her use the motor vehicle, there is therefore no legal basis for her not to return the money since she had taken back the motor vehicle and enjoys its use.”

That letter elicited a response from the applicant's legal practitioners in this vein:

“We refer to the above matter and to your 19 November 2014 letter. We are, we should confess, shocked by your stance which borders on lack of candour and dishonesty. There is a memorandum of agreement that you signed. Did you disclose it to the court? We are interested in this because we saw the papers in court and the agreement was not part thereof. Can we hear from you urgently as we are determined to take this back to court and to show the court that it was, in our view, at least, misled.”

This letter provoked no response from the respondent hence the current application.

At the hearing of the application, counsel for the respondent attempted, in vain, to introduce cases not cited in the respondent's heads of argument on the basis that he was only briefed by Ndove, Museta and Partners the day before.

I disallowed it in terms of Rule 238(2c) because Ndove, Museta and Partners had been served with the notice of set down on 12 February 2015 but briefed counsel on the eleventh hour. No explanation for that was forthcoming.

As if that was not enough, counsel for the respondent went on to smuggle into the hearing new issues that appear not anywhere in the papers in an endeavour to persuade the court to dismiss the application.

I will proceed to deal with those technical issues that he raised first before adverting to those raised in the opposing affidavit and the heads of argument....,.

In his heads of argument, the respondent raised three issues in opposing the grant of this application. I herewith deal with them hereunder:

(a) That the agreement was a compromise

The argument here is that the agreement was meant to put an end to the parties intended action, viz the applicant stay execution and respondent, implicitly not to pursue rescission. The respondent further argues, that, if any of the parties failed to honour the compromise the proceedings would resume.

Both parties breached the agreement – the respondent failed to keep up with payments while the applicant took the car from the dealer and started using it.

The situation was: who approached the court first to continue the suspended proceedings? and unfortunately, for the applicant, the respondent did so first and prosecuted his application for rescission.

In Georgias and Another v Standard Chartered Finance Zimbabwe Limited 1998 (2) ZLR 488 (SC)…, GUBBAY CJ…, defined compromise in these words:

“Compromise or transactio is the settlement, by agreement, of disputed obligations, or of a lawsuit the issue of which is uncertain. The parties agree to regulate their intention in a particular way, each receding from his previous position and conceding something – either diminishing his claim or increasing his liability.”

It is trite law, that, once a compromise agreement is concluded, it precludes an action on the original debt, except where the compromise specifically or by clear implication provides that the original claim shall revive in the event of the non-performance of the terms of the compromise: FARLAM and HATHAWAY: A Case Book on the South African Law of Contract…,.

In casu, assuming that the agreement the parties concluded meets the requirements of a compromise, the respondent argues, that, it contained a clear implication “implicitly and explicitly” that the original claim shall revive in the event of non-performance of the terms of the compromise.

A reading of the terms of the agreement does not distil an implication, let alone a clear one, that the respondent would revive his application for rescission in the event of non-performance by the applicant or by himself of the terms of the compromise.

In casu, it is the respondent who failed to perform his terms of the compromise by failing to pay.

I am yet to come across a compromise agreement with a clause, either express or implicit, giving a party who deliberately fails to perform his/her terms of the compromise, the leeway to revive the original claim. If anything, it is the applicant who was granted the explicit right to revive execution of the respondent's property vide the words in paragraph 1 which state:

“The execution of defendant's property be stayed only and strictly on the following conditions” which are mentioned in (a) and (b), viz the payment by him of the amounts stated therein which amounts the respondent failed to pay.

Further, in the absence of fraud, duress, or justus error, it is also trite, that, the purpose of a compromise is to end doubt and to avoid the inconvenience and risk inherent in resorting to the methods of resolving disputes. Its effect is the same as res judicata on a judgment by consent. It extinguishes ipso jure any cause of action that previously may have existed between the parties unless the right to rely thereon was reserved: Nagar v Nagar 1982 (2) SA 263 (ZH).

In the instant case, as already found supra, the agreement reserved no such right to the respondent.

Even if he had such right, he still would be precluded from rushing back to court without giving due notice of such action to the applicant, who..., was justified in wallowing in the belief that the agreement was still binding.

View Appeal
HH661-16 : M COMPANY (PVT) LTD vs ZIMBABWE REVENUE AUTHORITY
Ruled By: KUDYA J

The Commissioner is not accorded the legal right to waive taxes: see Foroma v Minister of Public Construction and National Housing and Anor 1997 (1) ZLR 447 (H)…,.; Ritch Bhyat v Union Government (Minister of Justice) 1912 AD 719…,.; and SAR H v Transvaal Consolidated Land ...

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

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

CC07-16 : AMOS MAKANI and OTHERS vs ARUNDEL SCHOOL and OTHERS
Ruled By: CHIDYAUSIKU CJ, MALABA DCJ, ZIYAMBI JCC, GWAUNZA JCC, GARWE JCC, GOWORA JCC, HLATSHWAYO JCC, PATEL JCC and GUVAVA JCC

The four applicants are the fathers and guardians of their respective minor daughters, all four of whom are pupils at Arundel School, a private girls school situated in Harare.

The first and second respondents are the Trustees and Headmistress of the School.

The third respondent is the Minister of Primary and Secondary Education, cited in his official capacity, and the fourth respondent is the Attorney-General, also cited in his official capacity.

The applicants seek various declarators and consequential relief in respect of the alleged violation of their daughters constitutional rights. They also seek an order for costs against the first and second respondents on a legal practitioner and client scale.

The first and second respondents are opposed to the application and aver that it be dismissed with costs.

The third and fourth respondents have indicated that they will abide by the Court's decision.

The Background

Before 2015, the long-established practice at the School was to commence the day with prayers in the School chapel. Pupils were free to attend if they so wished and a separate room was set aside for those of other faiths who did not attend chapel on religious grounds. This inter-denominational position was confirmed by the School's website on the internet.

The applicants and their daughters are all practising Jehovah's Witnesses. Their beliefs are not similar to those of other Christian denominations.

Upon application to the School for the admission of their daughters, each of the applicants completed a standard application form in which they indicated that they were Jehovah's Witnesses. Their daughters were duly accepted for admission.

At the beginning of 2015, a new Headmistress was appointed to run the School.

She sought to introduce compulsory chapel attendance for all pupils at the School in order to reinforce its collegiality. The applicants wrote several letters to the Headmistress as well as the School's lawyers to register their complaints. On 17 March 2015, after taking legal advice, the Headmistress wrote to the applicants insisting that their daughters were required to attend chapel and that, if they failed to comply, they would be deemed to have been voluntarily withdrawn and removed from the School.

On 19 March 2015, after the girls refused to attend chapel and surrendered their books, they were told to go home.

The applicants then filed an urgent application to the High Court, in Case No.2717/15. Following a consent order granted on 27 March 2015, the girls were allowed to continue to attend the School, without being compelled to attend chapel, pending the determination of the present application.

The applicants aver, that, freedom of conscience includes the right to practice and propagate one's religion as well as the right not to be compelled to subscribe to any religion.

In this respect, the actions of the Headmistress violate their daughters freedom of conscience and their right to protection against discrimination on the ground of religion.

Moreover, although any person is entitled to establish and maintain an independent educational institution, he or she cannot discriminate in the manner in which the institution is administered. Thus, the conduct of the Headmistress also violates their daughters right to education.

The applicants, accordingly, seek declarators that the respondents actions are in violation of their daughters freedom of conscience and religion, right to protection against discrimination, and right to education.

They also seek an order precluding the respondents from refusing the admission of their daughters to Arundel School on the basis of their religious beliefs and failure to attend chapel.

On behalf of the School, the Headmistress relies upon the standard enrolment form signed by the applicants upon the admission of their daughters into the School.

She avers, that, this agreement, which constitutes a binding contract, expressly provides, that, any latitude from chapel attendance is at her sole discretion and that her decision in that regard is final and binding.

The agreement also provides, that, any changes to the School rules must be observed and followed by the signatory parents and their daughters.

One of her functions is to articulate the values of the School, and, morning chapel is the only time when pupils come together in an environment most conducive for the values and ethos of the School to be properly impacted upon them.

It is not compulsory for any pupil to participate in any activity, such as singing or praying, or to abandon her beliefs during chapel. What is compulsory is that all pupils attend and evince respectful behaviour in chapel.

The applicants were not forced to enrol their daughters at the School.

They should respect the rights of the School's founding members who established an educational institution that conforms with and pursues their own values and beliefs. The School authority is constitutionally entitled to establish and maintain the School and impose reasonable rules to be followed at the School. It should not be precluded from pursuing its religious beliefs and insisting on anyone who joins the School to respect its views.

Such policy is reasonable and those who agree to join the School, despite their religious views, must be taken to have necessarily waived their own constitutional rights.

For the sake of completeness, it is necessary to set out the relevant provisions of the standard application form of admission to the School.

Upon signature, each of the applicants acknowledged and understood that his daughter had been accepted for entry as a day student at the School on the following express terms and conditions:

“4. That, the School's rules and regulations, as amended from time to time, shall bind and be observed by my daughter, and, insofar as they concern me, also by me. I further accept, that, by signing this enrolment contract I will be bound by the Arundel Parents Association constitution, which is available to me on request.

5. That, the School is founded on Christian principles, and all pupils are expected to comply with the rules and routines thus implied. No exemption from any part of the curriculum will be considered on religious grounds. Any latitude concerning Chapel attendance, holy days, special meal requirements, dress codes etc. will be at the sole discretion of the Head, whose decision will be accepted as final and binding on my daughter.”

Relevant Constitutional and Statutory Provisions

Section 2 of the Constitution re-affirms the supremacy of the Constitution in terms that are significantly wider and more inclusive than those embodied in its precursor in the former Constitution, as follows:

“(1) This Constitution is the supreme law of Zimbabwe and any law, practice, custom or conduct inconsistent with it is invalid to the extent of the inconsistency.

(2) The obligations imposed by this Constitution are binding on every person, natural or juristic, including the State and all executive, legislative, and judicial institutions and agencies of government at every level, and must be fulfilled by them.”

Also relevant for present purposes is section 47 of the Constitution which recognises the existence of rights other than those contained in the Declaration of Rights:

“This Chapter does not preclude the existence of other rights and freedoms that may be recognised or conferred by law, to the extent that they are consistent with this Constitution.”

As I have already indicated, the specific relief sought by the applicants relates to the alleged violation of their daughters freedom of conscience and religion, right to protection against discrimination, and right to education, as enshrined in sections 60, 56 and 75 of the Constitution. These sections, in their relevant portions, provide as follows:

“56 Equality and Non-discrimination

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

(2)….,.

(3) Every person has the right not to be treated in an unfairly discriminatory manner on such grounds as their nationality, race, colour, tribe, place of birth, ethnic or social origin, language, class, religious belief, political affiliation, opinion, custom, culture, sex, gender, marital status, age, pregnancy, disability or economic or social status, or whether they were born in or out of wedlock.

(4) A person is treated in a discriminatory manner, for the purpose of subsection (3), if —

(a) They are subjected, directly or indirectly, to a condition, restriction or disability to which other people are not subjected; or

(b) Other people are accorded, directly or indirectly, a privilege or advantage which they are not accorded.

(5) Discrimination on any of the grounds listed in subsection (3) is unfair unless it is established that the discrimination is fair, reasonable and justifiable in a democratic society based on openness, justice, human dignity, equality and freedom.

(6)…,.”

“60 Freedom of Conscience

(1) Every person has the right to freedom of conscience, which includes —

(a) Freedom of thought, opinion, religion or belief; and

(b) Freedom to practice and propagate and give expression to their thought, opinion, religion or belief, whether in public or in private and whether alone or together with others.

(2) No person may be compelled to take an oath that is contrary to their religion or belief or to take an oath in a manner that is contrary to their religion or belief.

(3) Parents and guardians of minor children have the right to determine, in accordance with their beliefs, the moral and religious upbringing of their children, provided they do not prejudice the rights to which their children are entitled under this Constitution, including their rights to education, health, safety, and welfare.

(4) Any religious community may establish institutions where religious instruction may be given, even if the institution receives a subsidy or other financial assistance from the State.”

“75 Right to Education

(1) Every citizen and permanent resident of Zimbabwe has a right to —

(a) A basic State-funded education, including adult basic education; and

(b) Further education, which the State, through reasonable legislative and other measures, must make progressively available and accessible.

(2) Every person has the right to establish and maintain, at their own expense, independent educational institutions of reasonable standards, provided they do not discriminate on any ground prohibited by this Constitution.

(3) A law may provide for the registration of educational institutions referred to in subsection (2) and for the closing of any such institutions that do not meet reasonable standards prescribed for registration.

(4) The State must take reasonable legislative and other measures, within the limits of the resources available to it, to achieve the progressive realisation of the right set out in subsection (1).”

In support of their contention, that, their daughters right to education has been violated by the School, the applicants also rely upon section 4 of the Education Act [Chapter 25:04] which provides as follows:

“(1) Notwithstanding anything to the contrary contained in any other enactment, but subject to this Act, every child in Zimbabwe shall have the right to school education.

(2) Subject to subsection (5), no child in Zimbabwe shall —

(a) Be refused admission to any school; or

(b) Be discriminated against by the imposition of onerous terms and conditions in regard to his admission to any school;
on the grounds of his race, tribe, place of origin, national or ethnic origin, political opinions, colour, creed or gender.

(3)…,.

(4) Any person who contravenes subsection (2) shall be guilty of an offence and liable to a fine not exceeding level six or to imprisonment for a period not exceeding one year or to both such fine and such imprisonment.

(5) It shall be a defence in any criminal proceedings for an offence under subsection (2) for the accused person to show, that, though he committed the act alleged against him —

(a) He committed the act on the grounds of the creed of the child against whom the act was committed, but he did so because the school concerned is controlled by a bona fide religious organization and members of that religious organization or adherents of a particular religious belief are accorded preference in admission to that school; or

(b) He committed the act on the grounds of the gender of the child against whom the act was committed, but...,.”

Lastly, but very importantly, there is section 86 of the Constitution which permits the limitation of fundamental rights in the following circumstances:

“(1) The fundamental rights and freedoms set out in this Chapter must be exercised reasonably and with due regard for the rights and freedoms of other persons.

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

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

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

(c) The nature and extent of the limitation;

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

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

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

(3) No law may limit the following rights enshrined in this Chapter, and no person may violate them —

(a) The right to life, except to the extent specified in section 48;

(b) The right to human dignity;

(c) The right not to be tortured or subjected to cruel, inhuman or degrading treatment or punishment;

(d) The right not to be placed in slavery or servitude;

(e) The right to a fair trial;

(f) The right to obtain an order of habeas corpus as provided in section 50(7)(a).”

As appears from sub-section (3) of section 86 of the Constitution, none of the rights allegedly violated in casu falls into the category of inviolable rights enumerated in that subsection.

Accordingly, in the event that the applicants are able to establish any violation of their rights, it will be necessary to measure such prima facie violation as against the rights and freedoms of others, in terms of subsection (1), and within the context of the permissible derogations contemplated in sub section (2)....,.

Freedom of Conscience and Religion

For the purpose of addressing the merits of this aspect of the matter, it is necessary to consider three separate but inter-related issues, to wit:

(i) The nature and scope of the applicants freedom of religion as guaranteed by section 60 of the Constitution.

(ii) Whether and the extent to which that freedom has been infringed by the School.

(iii) If so, whether any such infringement constitutes a permissible limitation by virtue of subsections (1), (2) or (3) of section 86 of the Constitution.

Subsection (1) of section 60 of the Constitution defines the right to freedom of conscience as including, inter alia, freedom of religion or belief and freedom to practise and propagate and give expression to one's religion or belief, whether in public or in private and whether alone or together with others.

Subsection (3) affirms the right of parents and guardians to determine, in accordance with their beliefs, the moral and religious upbringing of their minor children, provided they do not prejudice the constitutional rights of their children, including their rights to education, health, safety, and welfare.

The essence of the applicants religious credo, as appears from their founding papers, is that there is no hell of fire and torment; that places of worship should not contain any religious symbols; that religions and faiths should not be mixed; and that there can only be one truth from God - which truth they hold.

With specific reference to religious symbols at the School, they object to the three crucifixes atop, outside and inside the chapel, as well as the foundation stone at the entrance of the chapel. These symbols, so they believe, contravene the first Commandment against idolatry.

The fundamental doctrinal beliefs and practices of Jehovah's Witnesses may also be gleaned from the following article by JOHN GORDON MELTON in the online Encyclopaedia Britannica:

“Witnesses hold a number of traditional Christian views but also many that are unique to them. They affirm that God, Jehovah, is the most high. Jesus Christ is God's agent, through whom sinful humans can be reconciled to God. The Holy Spirit is the name of God's active force in the world. Witnesses believe that they are living in the last days, and they look forward to the imminent establishment of God's kingdom on earth, which will be headed by Christ and jointly administered by 144,000 human co-rulers (Revelation 7:4). Those who acknowledge Jehovah in this life will become members of the millennial kingdom; those who reject him will not go to hell but will face total extinction….,.

The Witnesses teachings stress strict separation from secular government.

Although they are generally law-abiding, believing that governments are established by God to maintain peace and order, they refuse, on biblical grounds, to observe certain laws. They do not salute the flag of any nation, believing it an act of false worship; they refuse to perform military service; and they do not participate in public elections….,.

The Witnesses distrust of contemporary institutions extends to other religious denominations, from which they remain separate. They disavow terms such as minister and church….,.

Witnesses also oppose certain medical practices that they believe violate Scripture. In particular, they oppose blood transfusions because of the scriptural admonition against the consumption of blood (Leviticus 3:17)….,.

In the early years of the movement, members met in rented halls, but, under Rutherford, the Witnesses began to purchase facilities that they designated Kingdom Halls….,. Each Kingdom Hall has an assigned territory and each Witness a particular neighbourhood to canvass….,.”

The following excerpt from Wikipedia, as at 19 December 2015, elaborates Jehovah's Witnesses aversion to the mixing of religions and their self-imposed injunction to remain separate from the world at large:

“Jehovah's Witnesses believe that the Bible condemns the mixing of religions, on the basis that there can only be one truth from God, and, therefore, reject interfaith and ecumenical movements. They believe, that. only their religion represents true Christianity, and that other religions fail to meet all the requirements set by God and will soon be destroyed. Jehovah's Witnesses are taught, that, it is vital to remain 'separate from the world'. The Witnesses literature defines the 'world' as 'the mass of mankind apart from Jehovah's approved servants and teach that it is morally contaminated and ruled by Satan. Witnesses are taught, that, association with 'worldly' people presents a 'danger' to their faith, and are instructed to minimize social contact with non-members to better maintain their own standards of morality.”

Counsel for the applicants places great reliance upon the case of Dzvova v Minister of Education, Sports & Culture and Others 2007 (2) ZLR 196 (S) for the broad submission, that, fundamental rights must invariably be respected.

In that case, the Supreme Court affirmed the general proposition, that, the rules of the school in question could not be applied to derogate from the constitutional rights of its pupils, including their freedom of religion.

However, the ratio decidendi of the Court was not predicated on any constitutional point, but, rather, on the principle that the power to make rules on school discipline and to regulate the admission, punishment, and expulsion of pupils was reposed in the Minister of Education and was therefore outside the remit of the school Head.

Consequently, Dzvova v Minister of Education, Sports & Culture and Others 2007 (2) ZLR 196 (S) does not, in my view, take the matter any further in resolving the issues at hand.

Moreover, it is also distinguishable from the factual situation in casu in that the applicant in that case had not subscribed to any contract of admission entitling the school to interfere with the enjoyment of his child's freedom of conscience and religion.

Another more recent case involving facts similar to those in Dzvova v Minister of Education, Sports & Culture and Others 2007 (2) ZLR 196 (S) is that of Kapasula & Others v The Headmistress Hermann Gmeiner High School N.O. & Others Case No. SC153-10.

The applicants daughters in that matter were allegedly excluded from enrolment to the first respondent's school because their heads had not been shaven or trimmed for religious reasons. This was in apparent contravention of the school's rules and regulations stipulating that all pupils must always be smart with short and neatly combed hair.

The first respondent's opposition, in the High Court, did not addresss the merits of the matter, but merely relied on the preliminary objections that the application was not urgent, and that, in any case, the laws prohibiting discrimination did not apply to the school since it was a private non-governmental institution.

On referral to the Supreme Court, under section 24(2) of the former Constitution, the Court was called upon to determine three issues:

(i) Whether the refusal to admit the children into the school on the basis of their failure to shave or trim their hair was discriminatory on the ground of creed in contravention of section 19(1) of the former Constitution;

(ii) Whether the decision of the school, to refuse admission into the school, was done under the authority of a law as envisaged in section 19(5) of the Constitution; and

(iii) If so, whether such law was reasonably justifiable in a democratic society.

The applicants argued, that, the first respondent's actions were clearly discriminatory and in contravention of section 19 of the Constitution. Furthermore, the school's rules and regulations did not constitute a law and were not made under the authority of any law, i.e. the Education Act or its subsidiary regulations.

The application before the Supreme Court was not opposed by any of the respondents.

In the event, the Court granted an order simply prohibiting the school from refusing the children's admission into the school on the basis of the length of their hair.

There appear to have been no written reasons for the judgment.

As with Dzvova v Minister of Education, Sports & Culture and Others 2007 (2) ZLR 196 (S), Kapasula & Others v The Headmistress Hermann Gmeiner High School N.O. & Others SC153-10 is clearly distinguishable from the situation in casu.

The school's rules and regulations were not authorised under any law within the contemplation of section 19 of the Constitution and were therefore patently ultra vires.

More significantly, the applicants in both cases had not subscribed to any binding contractual undertaking or commitment expressly and unequivocally relinquishing their rights and the rights of their children to abide by or enforce their religious beliefs and convictions without qualification.

Counsel for the respondents, submits, in reliance on a dictum drawn from Wittmann v Deutscher Schulverein Pretoria & Others 1998 (4) SA 423 (T)..., that “freedom of religion does not mean freedom from religion.”

In the instant case, so he argues, the applicants daughters are not being persuaded to change their religion or subscribe to other religious beliefs, but, are simply being required to attend an activity that forms part of the School's curriculum. Thus, the School cannot be said to have infringed any aspect of the right to freedom of religion as enunciated by the Canadian Supreme Court in R v Big M Drug Mart Ltd [1985] 1 SCR 295..., where it was stated that:

“The essence of the concept of freedom of religion is the right to entertain such religious beliefs as a person chooses; the right to declare religious beliefs openly and without fear of hindrance or reprisal; and the right to manifest religious belief by worship and practice or by teaching and dissemination.”

In Christian Education South Africa v Minister of Education 2000 (4) SA 757 (CC)..., freedom of conscience and religion was regarded as being integral to the dignity, growth, and self-worth of the individual:

“The right to believe or not to believe, and to act or not to act, according to his or her beliefs or non-beliefs, is one of the key ingredients of any person's dignity.

Yet, freedom of religion goes beyond protecting the inviolability of the individual conscience.

For many believers, their relationship with God or creation is central to all their activities. It concerns their capacity to relate in an intensely meaningful fashion to their sense of themselves, their community and their universe. For millions in all walks of life, religion provides support and nurture and a framework for individual and social stability and growth. Religious belief has the capacity to awaken concepts of self worth and human dignity which form the cornerstone of human rights. It affects the believer's view of society and founds the distinction between right and wrong. It expresses itself in the affirmation and continuity of powerful traditions that frequently have an ancient character transcending historical epochs and national boundaries.”

The importance of religious diversity in the educational sphere was highlighted by LANGA CJ in MEC for Education: Kwazulu-Natal & Others v Pillay 2008 (1) SA 474 (CC)..., as follows:

“As a general rule, the more learners feel free to express their religions and cultures in school, the closer we will come to the society envisaged in the Constitution. The display of religion and culture in public is not a 'parade of horribles' but a pageant of diversity which will enrich our schools, and, in turn, our country.”

Counsel for the applicants correctly notes, that, an essential component of the right to freedom of religion is the absence of coercion or restraint and that the freedom may be unjustly impaired by measures that compel anyone to act or refrain from acting in a manner contrary to one's religious beliefs.

This absence of compulsion is emphasised even in Wittmann v Deutscher Schulverein Pretoria & Others 1998 (4) SA 423 (T)...,.:

“Of course, the right of freedom of religion (in the case of religious minorities) and the right to freedom of thought, belief, and opinion (in the case of atheists and agnostics) entails that attendance may not be enforced. It must be voluntary. The right of non-attendance is expressly recognised in sections 14(2) of the interim Constitution and 15(2) of the Constitution. Attendance must be 'free and voluntary'. There may be no coercion, neither by rules nor by action, on the part of the authorities.”

Similarly, in MEC for Education: Kwazulu-Natal & Others v Pillay 2008 (1) SA 474 (CC)..., the underlying values of human dignity, equality, and freedom are underscored in the pursuit of religious practices:

“A necessary element of freedom and of dignity of any individual is an 'entitlement to respect for the unique set of ends that the individual pursues'. One of those ends is the voluntary religious and cultural practices in which we participate. That we choose, voluntarily, rather than through a feeling of obligation, only enhances the significance of a practice to our autonomy, our identity, and our dignity.”

These sentiments, against coercive conduct, are also sagaciously captured in R v Big M Drug Mart Ltd [1985] 1 SCR 295...,.:

“Freedom, in a broad sense, embraces both the absence of coercion and constraint, and the right to manifest beliefs and practices. Freedom means, that, subject to such limitations as are necessary to protect public safety, order, health, or morals or the fundamental rights and freedoms of others, no one is to be forced to act in a way contrary to his beliefs or his conscience.

What may appear good and true to a majoritarian religious group, or to the State, acting at their behest, may not, for religious reasons, be imposed upon citizens who take a contrary view. The Charter safeguards religious minorities from the threat of 'the tyranny of the majority.'”

To conclude on this aspect, there can be no doubt that the applicant's children are entitled to hold and practise their religious beliefs, whether within or without their homes, and within the precincts of the School.

It also cannot be doubted that the applicants are entitled, in accordance with their own beliefs, to shape the moral and religious upbringing of their children.

The applicants aver, that, to compel their daughters to attend chapel is contrary to their religious convictions because it entails the mixing of religious practices and attending church services in a building strewn with religious symbols. Therefore, their daughters do not wish to be present in the chapel.

Having regard to the authorities cited above, I take the view, that, the School's policy, of compelling the applicants daughters to attend chapel services, constitutes a prima facie infringement of their religious beliefs.

The practice and observance of their faith demands, that, they exclude themselves from any place of worship that contains any religious symbol, including the crucifix. It also demands that they abstain from any rite or ritual that involves the admixture of any religion other than their own.

By being compelled to enter the School chapel and attend the predominantly Anglican services conducted therein, they are being called upon to renounce, albeit temporarily, certain fundamental tenets of their faith that are designed to enhance their peculiar sense of religious and cultural identity as well as their dignity as self-professed Jehovah's Witnesses.

They can only be required to renounce those tenets if they choose to do so freely and voluntarily, or, in circumstances that are reasonable and justifiable having regard to the public interest or the rights and freedoms of others.

Permissible Limitation of Religious Freedom

The critical question for determination in casu is whether or not the compulsion to attend chapel imposed upon the applicants daughters is constitutionally permissible in the circumstances under consideration.

In terms of section 86(2) of the Constitution, fundamental rights and freedoms may be limited “only in terms of a law of general application and to the extent that the limitation is fair, reasonable, necessary, and justifiable in a democratic society.”

In this respect, counsel for the respondents argues, that, the contract of admission signed by the applicants is the law envisaged in section 86(2) of the Constitution and that the School is entitled to enforce that contract accordingly.

Counsel for the applicants appears to implicitly accept this proposition by his lengthy written submissions interrogating the contract and the School's conduct under the criteria set out in section 86(2) of the Constitution.

The proposition, and its implicit acceptance, are clearly misplaced.

The term “law” is defined in section 332 of the Constitution to mean any provision of the Constitution, an Act of Parliament, or a statutory instrument, or any unwritten law in force in Zimbabwe, including customary law.

A private contractual stipulation is patently not a law as defined, or as generally understood; let alone a law of general application within the meaning of section 86(2) of the Constitution.

Accordingly, I take the view, that, section 86(2) of the Constitution has no direct bearing on the constitutionality or enforceability of the contract of admission and does not take the matter any further in upholding or impeaching the School's policy of compulsory chapel attendance.

As regards the extent to which the freedom of religion may be limited, counsel for the applicants contends, that, although it may be permissible to limit the right to manifest religious or other non-religious beliefs, the right to hold such beliefs is to be considered as being inviolable.

I am unable to discern any justification for this perceived distinction either in section 60 or in section 86 of the Constitution.

In terms of section 60(1) of the Constitution, the freedom of thought, opinion, religion or belief is accorded the same prominence and protection as the freedom to practice, propagate and give expression to one's thought, opinion, religion or belief.

Both are guaranteed in the same breath and without any express or implied differentiation as to the extent of their entitlement to protection.

Equally significantly, section 86(3) of the Constitution specifically enumerates those fundamental rights which “no law may limit” and which “no person may violate”.

These include the rights to life, human dignity, not to be tortured, not to be placed in slavery or servitude, to a fair trial, and to obtain an order of habeas corpus.

The right to freedom of conscience and religion is conspicuously absent from this list of absolutely sacrosanct and inviolable rights. The necessary implication is that freedom of religion is not inviolate or non-derogable.

The provision that I deem most apposite to the resolution of this matter, and which I now turn to consider, is section 86(1) of the Constitution. It declares that “fundamental rights and freedoms..., must be exercised reasonably and with due regard for the rights and freedoms of other persons.”

The analysis of conflicting rights postulated by section 86(1) of the Constitution calls for an essentially unitary approach. The question whether a given right is being exercised reasonably is inextricably intertwined with the question whether it is being exercised with due regard for the rights and freedoms of others.

What is required is the balancing of actually or potentially antagonistic rights, having regard to the nature of those rights, the manner in and the extent to which they impinge upon one another, and the circumstances in which they have been or are to be exercised.

It is trite, that, a contract concluded in contravention of the written or unwritten law, or one that is contrary to public policy, is susceptible to being struck down and rendered of no force or effect.

The doctrine of sanctity of contracts is obviously subject to constitutional limits.

As was observed in Bredenkamp and Others v Standard Bank of South Africa Ltd 2010 (4) SA 468 (SCA)..., every contract or institutional rule must pass constitutional muster.

Again, in Barkhuizen v Napier 2007 (5) SA 323 (CC)..., it was emphasised that:

“All law, including the common law of contract, is now subject to constitutional control. The validity of all laws depends on their consistency with the provisions of the Constitution and the values that underlie our Constitution. The application of the principle pacta sunt servanda is, therefore, subject to constitutional control.”

Counsel for the applicants submits, that, the School's contract of admission contains unlawful and onerous terms and conditions targeted against members of different faiths. They are contrary to public policy, and, therefore, cannot qualify as rules capable of enforcement.

Counsel for the respondents retorts, that, although the School's assemblies in chapel carry religious overtones, no pupil is obliged to participate in any religious activity. All the pupils are simply required to attend and be respectful. No one is victimised for not singing or praying. To this extent, the School is entitled to expect conformity and the applicants are equally entitled to remove their daughters to a school that does not offend their religious principles. This accords with the rights of establishment and maintenance explicitly preserved and conferred upon independent educational institutions by section 75(2) of the Constitution.

It is common cause, that, the religious status of the applicants children was known from the outset and that the previous policy of the School was one of religious tolerance and accommodation.

In this respect, I am unable to accept the submission by counsel for the respondents, that, the applicants acted fraudulently in signing the contract of admission simply to gain the admission of their daughters into the School. This is because the previous policy was highlighted in the School's website which, although out-dated, appears to have been relied upon by the applicants.

In this context, therefore, it cannot be said that their daughters refusal to attend chapel is unreasonable.

In any event, there is nothing in the opposing papers to show, that, the objective of collegiality that the Headmistress wishes to inculcate in the pupils was not previously attained. There is no evidence that the exemption from chapel attendance, that was previously granted, has negatively impacted on the collegiality or discipline of the applicants daughters or the other pupils. Nor is there anything to indicate that compulsory collective chapel attendance is the most appropriate vehicle to entrench collegiality.

This objective might be better achieved through regular attendance at social or sporting events or when all the pupils are gathered together in the dining hall, as happens at the School during the daily lunch break.

As counsel for the applicants correctly submits, coercion, as opposed to persuasion, does not necessarily build collegiality.

On the contrary, to forcibly conjoin persons of different faiths might serve to undermine the dignity of all concerned, the minority as well as the majority. As I have already noted, freedom of conscience and human dignity are inseparably linked and the denial of the former entails the denial of the latter.

As against the foregoing, it is not in dispute, that, the applicants were fully aware, from the time that they signed the admission forms, that their daughters had been accepted as pupils on the following terms and conditions:

(i) That, the School's rules and regulations, as amended from time to time, would be binding and had to be observed;

(ii) That, the School's founding Christian principles would entail adherence to its rules on chapel attendance;

(iii) That, no exemption from the curriculum would be considered on religious grounds; and

(iv) That, any latitude concerning chapel attendance was at the sole discretion of the School Head, whose decision was final and binding.

Thus, the applicants were cognisant of the fact, that, any previous latitude or exemption granted in relation to chapel attendance was subject to being reversed and that they, and their daughters, would be obliged to comply with any such change in policy.

In short, there can be no doubt, that, they willingly consented to the implementation and enforcement of the School's rules and regulations - even if they were altered after the admission of their daughters into the School.

In Wittmann v Deutscher Schulverein Pretoria & Others 1998 (4) SA 423 (T), the facts of which involved the enforcement of an enrolment contract in circumstances which are are very similar to those herein, Van DIJKHORST J..., opined as follows in relation to parochial community schools:

“In respect of these educational institutions, the fundamental freedom of religion of 'outsiders' is limited to the freedom of non-joinder. Outsiders cannot join on their own terms, and, once they have joined, cannot impose their own terms.

This indicates, that, the waiver of the freedom of religion (for the limited duration of one's membership and within the limits of the institution's constitution) is not contrary to the provisions of the Constitution in the case of private educational institutions. Waiver per se of that freedom is therefore not unconstitutional.”

I note that this decision was premised on specific provisions of the South African Constitution which are not identical to the corresponding provisions in our Constitution, and that, as far as I am aware, it has not been followed or applied by the Constitutional Court of South Africa.

I also note, with the utmost respect, that, the sentiments expressed by the learned judge might be criticised as being somewhat exclusivist, having been pronounced in the peculiar post-apartheid milieu of that country.

Nevertheless, I take them to be fairly instructive in the broader context of delineating the outer contours of religious freedom.

Another case of persuasive value is the decision of the European Court of Human Rights, apropos the European Convention on Human Rights, in Valsamis v Greece [1996] 24 EHRR 294, arising from facts which are not dissimilar to those in casu.

The applicants, in that case, were Jehovah's Witnesses. Pacifism was a fundamental tenet of their religion which forbade any conduct or practice associated with war or violence - even indirectly.

Following a written request, their daughter was exempted from attendance at religious education lessons and Orthodox Mass. However, in common with other pupils at her school, she was asked to take part in the celebration of the National Day, a day when the outbreak of war between Greece and Fascist Italy was commemorated with school and military parades. She requested the headmaster that she be excused from the celebration on religious grounds, in particular, on the basis of her pacifist convictions.

Her request was refused, but, she nevertheless did not participate in the school parade.

She was punished for her failure to attend with one day's suspension from school; a decision taken by the headmaster in accordance with a circular issued by the Ministry of Education and Religious Affairs.

She, and her parents, argued, that, they were the victims of a breach of the right to education under Article 2 of Protocol No.1, which requires the State to respect the right of parents to ensure that the education and teaching received by their children is “in conformity with their own religious and philosophical convictions.” They also complained that their “right to freedom of thought, conscience and religion” guaranteed by Article 9 of the Convention had been breached.

Their complaints, in relation to these two provisions, were dismissed by a majority decision of seven votes to two.

The dissenting judges took a robust view of the rights allegedly infringed. In their opinion, Mr and Mrs Valsamis's perception of the symbolism of the school parade and its religious and philosophical connotations had to be accepted because it was not obviously unfounded and unreasonable. Similarly, Miss Valsamis's statement, that, the parade she did not participate in had a character and symbolism that were clearly contrary to her religious beliefs also had to be accepted, and, there was no basis for seeing her participation in this parade as necessary in a democratic society.

The minority accordingly found, that, both Article 2 of Protocol No.1 and Article 9 of the Convention had been violated.

As regards the right to education and its corollary of parental convictions, the majority judges were of the opinion…, that:

“Such commemorations of national events, serve, in their way, both pacifist objectives and the national interest. The presence of military representatives at some of the parades which take place in Greece, on the day in question, does not in itself alter the nature of the parades.

Furthermore, the obligation on the pupil does not deprive her parents of their right 'to enlighten and advise their children, to exercise with regard to their children natural parental functions as educators, or to guide their children on a path in line with the parents own religious or philosophical convictions'….,.

It is not for the Court to rule on the expediency of other educational methods which, in the applicants view, would be better suited to the aim of perpetuating historical memory among the younger generation.….

In conclusion, there has not been a breach of Article 2 of Protocol No.1 (P1-2).”

On the freedom of thought, conscience, and religion, the majority adopted the earlier decision of the Commission and opined…,:

“The Commission considered that Article 9 (art. 9) did not confer a right to exemption from disciplinary rules which applied generally and in a neutral manner, and that, in the instant case, there had been no interference with the applicant's right to freedom to manifest her religion or belief.

The Court notes, at the outset, that, Miss Valsamis was exempted from religious education and the Orthodox Mass, as she had requested, on the grounds of her own religious beliefs. It has already held, in paragraphs 31-33 above, that, the obligation to take part in the school parade was not such as to offend her parents religious convictions. The impugned measure therefore did not amount to an interference with her right to freedom of religion either….,.

There has consequently not been a breach of Article 9 of the Convention (art. 9).”...,.

Before balancing the respective rights and freedoms of the parties, it is necessary to consider the waiver of constitutionally entrenched rights.

Counsel for the applicants argues, that, it is possible to waive certain rights, depending upon the right in question; for example, the right to trade which can be subjected to restraint by agreement. However, the right to entertain and manifest religious beliefs cannot be waived because it is characterised by the absence of compulsion or coercion, including indirect control. Accordingly, clauses 4 and 5 of the School's admission form must be regarded as being contra bonos mores and therefore unlawful.

Counsel for the respondents accepts, that, public policy enables the scrutiny of private contracts in order to ensure their constitutionality. Nevertheless, it is possible to contractually waive one's religious precepts in order to achieve a specific social or material purpose - as the applicants have done by signing the contentious form of admission.

I am inclined to agree.

As I have indicated earlier, I do not perceive the right to freedom of religion as being absolute or non-derogable. On that basis, I can think of no objection to its being voluntarily waived in circumstances where such waiver does not entail the fundamental eradication of one's religious or conscientious beliefs.

The applicants cannot assert that their faith condemns the mixing of religious beliefs and practices, and, at the same time, enrol their daughters at a school with an Anglican ethos and practices.

The contract of admission that they signed categorically states, that, any latitude in chapel attendance granted to the pupils would not invariably exempt their attendance in future and that the decision of the Head in that regard would be final.

In effect, the applicants chose to bend the tenets of their faith to a limit determined by themselves so as to gain admission to the School for their daughters. Once that limit has been exceeded, they now invoke the right to religious freedom in order to demand that the School should conform to their religious dictates.

In other words, the applicants and their daughters, are prepared to remain “separate from a contaminated world” only to the extent that they deem it expedient to do so. To use a well-worn adage, they cannot approbate and simultaneously reprobate the School and its avowed ethos.

SC14-22 : CRISPEN VUNDLA and DAVID MUCHINGURI vs INNSCOR AFRICA BREAD COMPANY ZIMBABWE (PVT) LTD and MAXWELL SABILIKA N.O.
Ruled By: KUDYA AJA

On 13 April 2021, the applicants filed a chamber application for condonation and extension of time to appeal in terms of Rule 61 as read with Rule 43 of the Supreme Court Rules 2018.

It is opposed by the first respondent.

They seek the following relief:

1. The application for condonation and non-compliance with Rule 60(2) of the Supreme Court Rules 2018 be and is hereby granted.

2. The application for extension of time within which to file and serve a notice of appeal in terms of the Rules be and is hereby granted.

3. The applicants shall file their notice of appeal within five (5) days after the date this order is granted.

4. Each party shall bear its own costs.

THE FACTS

The deponent to the applicants founding affidavit was their legal practitioner of record by reason of his intimate involvement in the matter and the purely procedural nature of the relief sought.

The legal practitioner has acted in that capacity from the time the two challenged the termination of their employment before a labour officer on 20 November 2015, in the confirmation proceedings before the Labour Court on 18 November 2016, and in the three false starts that this matter has had in this Court in SC566/17 (an appeal), SC743/17 (application for striking of the appeal by the first respondent) and SC1089/17 (an application for joinder by the first respondent).

The two applicants were formerly employed by the first respondent as a Procurement Director and General Manager, respectively.

The first respondent (the employer) is a confectionery company incorporated in Zimbabwe, which is no longer trading. It has, however, been succeeded by Innscor Africa Ltd t/a Baker Inn Bakeries.

The second respondent is the labour officer who heard the dispute between the parties and sought confirmation of his ruling in the Labour Court in November 2016.

The first applicant and the employer purportedly concluded a consensual written agreement of termination of employment on 5 June 2014.

The agreement was alleged to have been brokered by Owen Murumbi, the former Finance and Human Resources Director of the employer.

The two parties signed the agreement and Owen Murumbi also appended his signature as a witness to the agreement.

The first applicant regards the termination to be a retrenchment process.

The second applicant was retrenched with the approval of the Retrenchment Board (the Board) on 5 December 2014.

He signed a retrenchment agreement in which, in paragraph 5, he absolved the first respondent from any further claims arising from the retrenchment process.

The two applicants were aggrieved by the entire retrenchment process.

They requested the labour officer to adjudicate a case of unfair dismissal and non-payment of employment benefits. The labour officer dismissed their claim in his draft ruling on 2 September 2016.

He provisionally held, that, the termination in respect of the first applicant was by mutual consent. He found that mutual consent was depicted by, firstly, the signatures of the first applicant and his witness; and, secondly, by the first applicant's unequivocal acceptance and consumption of the terminal package.

Regarding the second applicant, he found that he had been properly retrenched in accordance with the relevant statutory dictates of the Labour Act.

He also found the second applicant's specific disclaimer against the first respondent, in respect of any prospective claims arising from the retrenchment process, and his unequivocal acceptance and utilization of his substantial retrenchment benefits, to be inconsistent with the challenge before him.

He further found that both applicants had, by their acceptance without reservation, and further utilization of the terminal benefits, waived their legal right to challenge their respective termination processes.

Lastly, he declined to assume jurisdiction in respect of the Share Subscription Agreement on two bases:

(i) The first was that the first applicant had failed to establish that the agreement was concluded with his employer.

(ii) The second was that it had a reservation arbitration clause.

Thereafter, the labour officer sought confirmation of his draft ruling at the Labour Court on 16 November 2016.

The Labour Court confirmed the ruling on 19 May 2017.

It specifically found, that, by virtue of their seniority in the first respondent, the applicants must have knowingly waived their rights to challenge their respective terminations by the acceptance without reservation, and by the consumption of their terminal packages.

It also confirmed that the labour officer lacked the jurisdiction to deal with the Share Subscription Agreement as it was a contractual and not a labour issue.

Aggrieved by the confirmation, the applicants appealed to this Court in SC566/17 on 4 August 2017.

The subsequent chamber application instituted by the employer, to strike off the appeal under SC743/17, was dismissed. Resultantly, the employer sought to be joined in the appeal on 18 December 2017, in SC1087/17.

The application for joinder was set down together with the appeal hearing.

At the hearing, on 22 February 2018, this Court mero motu raised the propriety of the confirmation proceedings.

The views of this Court must have prevailed, as an order by consent, in which the employer withdrew the joinder application while the applicants withdrew the appeal ensued.

A further attempt to file another notice of appeal at the Labour Court was declined by the Registrar of the Labour Court on the ground that such a notice was, in terms of section 92F of the Labour Act [Chapter 28:01] (the Act), due at the Supreme Court.

Thereafter, the applicants concerted effort to the Registrars of the Labour Court and Supreme Court, in March 2018, for directions on the appropriate procedure to assail the draft ruling went unanswered.

On 25 September 2018, some seven months after the consensual withdrawals, this Court passed judgment in Drum City (Private) Limited v Brenda Garudzo SC57-18.

In that case, the labour officer entered a draft ruling in favour of the employee and against the employer. The labour officer then sought confirmation of the draft ruling before the Labour Court, in terms of section 93(1) as read with section 93(5a) and (5b) of the Labour Act.

She cited the losing employer as the only respondent, purportedly in terms of section 93(5a) of the Labour Act, which required “the employer or any other person against whom the ruling is made” to be the respondent in the confirmation proceedings.

This Court held, that, the legislature could not have intended to exclude a party with a direct and substantial interest in the confirmation proceedings, such as the employee in whose favour the draft ruling pertained, from participating in such proceedings as a co-respondent.

It accordingly allowed the appeal, set aside the confirmation proceedings, and remitted the matter to the Labour Court for the joinder of the employee and a re-hearing of the confirmation.

However, at paragraphs [12] and [13] this Court, en passant, remarked that:

“[12]…, only if the labour officer rules against the employer or any person will he or she be required to take the steps outlined in ss(5a) and (5b). In other words, the provisions do not confer on the Labour Court the jurisdiction to confirm a draft ruling made against an employee (such employee would, it seems, have to pursue other avenues to appeal against the draft ruling).

That this is the case is left in no doubt by the wording of section 93(5)(c)(ii) which specifically provides for a ruling like the one in casu in circumstances where the labour officer finds that the dispute of right in question 'must be resolved against any employer or other person in a specific manner…,.'

[13] Without a clear pronouncement to that effect, there can, in my view, be no doubt that reference to 'any person' in this provision, is not to be read as including the employee in the same dispute. I am satisfied that the import of the provision is to exclude the confirmation and registration of a draft ruling by the labour officer which is made in favour of an employer and against an aggrieved employee. It follows that the Labour Court has no jurisdiction to entertain such a matter, and should, on that basis, properly decline to hear it.”

These remarks were jettisoned by MALABA CJ in the Constitutional Court in Isoquant Investments (Pvt) Ltd t/a ZIMOCO v Memory Darikwa CC06-20…,. He pertinently observed that:

“One cannot interpret the Drum City (Pvt) Ltd case supra as authority for the proposition that it would only be cases where a draft ruling has been made against the employer that confirmation proceedings would ensue. The remarks were made as obiter dictum. The ratio decidendi of that case is that an employee must be joined in confirmation proceedings.”

The remarks in [12] and [13] were clearly obiter dictum because they did not relate to the issue that was before the court, which was whether or not the Labour Court could properly hear and determine an application for confirmation in which the employee was not cited.

The remarks answered the question, which was not before the Supreme Court, whether confirmation proceedings could be lodged in respect of a draft ruling that was made against an employee.

Before the Constitutional Court was a contention that the citation of the employer or other person against whom the draft ruling related, to the exclusion of the employee, infringed the employer's right to equal protection and benefit of the law enshrined in section 56(1) of the Constitution.

The Constitutional Court, inter alia, relied on the ratio decidendi of Drum City (Private) Limited v Brenda Garudzo SC57-18, and held that despite the “statutory ambiguity or vagueness” in the words “employer or other person” in section 93(5a) and (5)(c) of the Labour Act, the employee was a necessary party to the proceedings. Further, that, the architecture of the entire provisions of section 93 of the Labour Act required that a draft ruling be subjected to confirmation proceedings irrespective of whether it was in favour of the employer and against the employee, or in favour of the employee and against the employer.

It was on the basis of the reasoning of the Constitutional Court that the applicants lodged the present application on 13 April 2021.

It was opposed by the first respondent on 20 April 2021.

The applicants filed an answering affidavit on 22 April 2021. Thereafter, the applicants filed their heads on 28 April 2021 while the first respondent did so on 12 May 2021....,.

THE MERITS

The requirements for the application

A court considers the extent of the delay, reasonableness of the explanation for the delay, prospects of success and importance of the case, respondent's interest in the finality of his judgment, convenience of the court, and avoidance of unnecessary delay in the administration of justice.

However, it is trite that the main requirements for an application of this nature are the extent of the delay, the reasonableness of the explanation for the delay, and the prospects of success: see Ester Mzite v Damafalls Investments (Private) Limited SC21-18.

THE EXTENT OF THE DELAY

The Labour Court refused to confirm the proceedings on 19 March 2017. Leave to appeal was granted by that court on 9 July 2017. The appeal should have been filed by 15 August 2017.

The present application was filed on 20 April 2021.

It is common cause that this period, which is in excess of three (3) years and eight months, is inordinate.

THE REASONABLENESS OF THE EXPLANATION FOR THE DELAY

The real reason for the delay was that the applicants were prevailed upon by this Court to withdraw the appeal on 22 February 2018. The applicants withdrew the appeal because they accepted the misconception that confirmation proceedings that they sought to impugn were a nullity by reason of lack of jurisdiction by the Labour Court to confirm a draft ruling made against an employee by a labour officer.

That view was subsequently affirmed by this Court in Drum City (Pvt) Ltd v Brenda Garudzo SC57-18 at paragraphs [12] and [13].

It was, however, authoritatively jettisoned by the Constitutional Court in Isoquant Investments (Private) Limited t/a ZIMOCO v Memory Darikwa CC06-20 at p25.

The applicants have always been desirous to test the correctness of the judgment appealed against but for the mis-interpretation of the relevant provision of the Labour Act by this Court.

This is demonstrated by their desperate attempt, in March 2018, to appeal the confirmation in the Labour Court under the mistaken belief that it had reverted to being the decision of the labour officer.

I would have accepted the explanation on the misconstruction of the jurisdiction of the Labour Court by this Court to have been a reasonable explanation for the delay had the applicants filed the present application soon after the reasons for judgment were availed in Isoquant Investments (Private) Limited t/a ZIMOCO v Memory Darikwa CC06-20, in June 2020.

The applicants, however, justified their failure to file the application soon after the Isoquant Investments (Private) Limited t/a ZIMOCO v Memory Darikwa CC06-20 judgment on the COVID 19 induced lockdowns.

The endemic lockdowns resulted in the closure of court operations between 30 March 2020 and 11 May 2020 and 5 January 2021 to 1 March 2021. During this period, only urgent matters were set down, heard, and determined.

The courts were, however, in full session between 11 May 2020 and 4 January 2021 and between 1 March 2021 and the date on which the applicants filed the present application on 12 April 2021.

There was no legal impediment against the filing of the application immediately the reasons for judgment were delivered in Isoquant Investments (Private) Limited t/a ZIMOCO v Memory Darikwa CC06-20.

The applicants did not proffer any reasonable explanation as to why they failed to lodge the present application during these periods.

My overall finding is, therefore, that the explanation given for the delay was unreasonable.

I agree with counsel for the first respondent, that, the applicants failed to provide a reasonable explanation for the inordinate delay.

THE PROSPECTS OF SUCCESS

The three main factors are not individually decisive in granting the indulgence sought by the applicants.

The remarks of SANDURA JA in Kodzwa v Secretary for Health & Anor 1999 (1) ZLR 313 (S) are worth repeating. He stated that:

“Whilst the presence of reasonable prospects of success on appeal is an important consideration which is relevant to the granting of condonation, it is not necessarily decisive. Thus, in the case of a flagrant breach of the Rules, particularly where there is no acceptable explanation for it, the indulgence of condonation may be refused, whatever the merits of the appeal may be.”

In the present case, strong prospects of appeal may be the determinant factor....,.

I proceed to deal with the merits of the matter for the sake of completeness.

In our law, a serious misdirection on the facts amounts to a misdirection in law: see National Foods Limited v Magadza SC105-95.

In Hama v National Railways of Zimbabwe 1996 (1) ZLR 664 (S)…, KORSAH JA explained the basis for this principle in the following words:

“…, a misdirection is nothing more than an error in law made by a judge in his charge to a jury. I must, however, add this rider: there can be misdirection as to the law applicable to the case being tried; and there can be misdirection as to the evidence in the case.

For an appellant to avail himself of a misdirection as to the evidence, the nature and the circumstances of the case must be such that it is reasonably probable that the Tribunal would not have determined as it did had there been no misdirection; in other words, that the determination was irrational…,.

The general rule of the law, as regards irrationality, is that an Appellate Court will not interfere with a decision of a trial court based purely on a finding of fact unless it is satisfied, that, having regard to the evidence placed before the trial court, the finding complained of is so outrageous in its defiance of logic or of accepted moral standards that no sensible person who had applied his mind to the question to be decided could have arrived at such a conclusion.”

And, irrationality has subsequently been found to exist by this Court in Barros & Anor v Chimphonda 1999 (1) ZLR 58 (S)…,.:

“If the primary court acts upon a wrong principle; if it allows extraneous or irrelevant matters to guide or affect it; it if it mistakes the facts; (or) if it does not take into account some relevant consideration.”

The substance of the first ground of appeal meets the requirement for turning a factual attack into a question of law. It attacks a positive factual finding which is not based on any factual basis.

The contention made by counsel for the applicants being, that, a court properly applying its mind would not have found the consensual agreement to have been established where its very existence was put in issue, and in circumstances where the first respondent failed to produce the agreement.

The second ground of appeal impugns the failure of the court a quo to strictly apply the relevant provisions of the Labour Act that governed the retrenchment of the applicants.

The applicants relied on the strict construction rendered by this Court in Stanbic Bank of Zimbabwe Limited v Charamba 2006 (1) ZLR 96 (S) to the mandatory procedural steps and substantive requirements prescribed in the analogous provisions of the Labour Relations (Retrenchment) Regulations 1990 (Statutory Instrument 404 of 1990, SI404 of 1990), which were a precursor to section 12C(1) to (11) of the Labour Act prior to its amendment by Act No.5 of 2015.

I did not hear counsel for the first respondent dispute the propriety and efficacy of these two grounds of appeal.

She, however, pinned the respondent's case, in opposition, on the principle of waiver, assailed by the applicants in the third ground of appeal to the draft notice of appeal, arising from their acceptance without reservation, and failure to tender back the substantial terminal benefits paid to them.

Her submissions were firmly rooted in Chidziva & Ors v Zimbabwe Iron and Steel Company Ltd 1997 (2) ZLR 368 (S).

It was held by the majority decision, that, notwithstanding the failure to abide by the peremptory provisions of the retrenchment process, the voluntary acceptance of the retrenchment package by the retrenchees amounted to a waiver of the legal rights to challenge the propriety of the retrenchment process.

A voluntary acceptance of a terminal package is clearly knowingly made.

It is also inconsistent with the continuation of an employment relationship. It constitutes conduct which reasonably leads the employer to believe that the employment relationship is over.

Thus, whether the first applicant was terminated from employment by agreement, or whether, like the second applicant, he was retrenched, their deliberate acceptance of their respective terminal packages was inconsistent with the continuation of the employment contract.

They are unlikely to succeed in convincing this court, on appeal, that their conduct did not amount to waiver.

Stanbic Bank of Zimbabwe Limited v Charamba 2006 (1) ZLR 96 (S) that they seek to rely on did not address the question of waiver. Nor did it make any reference to Chidziva & Ors v Zimbabwe Iron and Steel Company Ltd 1997 (2) ZLR 368 (S), which took into account all the arguments that the appellants will seek to rehash on appeal.

The reliance upon Chidziva & Ors v Zimbabwe Iron and Steel Company Ltd 1997 (2) ZLR 368 (S), a quo, cannot, therefore, be impugned on the ground that it applied the wrong law.

In my view, the applicants are unlikely to successfully impugn the position of our law as expressed in Chidziva & Ors v Zimbabwe Iron and Steel Company Ltd 1997 (2) ZLR 368 (S).

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Variation of Contracts re: Deed of Settlement iro Waiver, the Presumption Against Waiver and the Doctrine of Estoppel

View Appeal
HH211-18 : MOSLEY MASHINGAIDZE vs PRECIOUS CHIPUNZA
Ruled By: MATANDA-MOYO J

SC19-12 : JAMESON RUSHWAYA and ANNIE RUSHWAYA and XELOD INVESTMENTS PL vs SWIMMING POOL & UNDERWATER REPAIRS PL and PATTERSON TIMBA and AEPROMM RESOURCES PL and TOLROSE INVESTMENTS PL
Ruled By: MALABA DCJ, ZIYAMBI JA and GOWORA AJA

SC32-09 : VIMBAI MBISVA vs RAINBOW TOURISM GROUP LIMITED t/a RAINBOW HOTEL & TOWERS
Ruled By: SANDURA JA, ZIYAMBI JA and MALABA JA

Appealed
HB59-09 : DINESH MANILAL NARAN vs RONNAH MAFURIRANO and THE REGISTRAR OF DEEDS
Ruled By: KAMOCHA J

HH90-10 : LOCAL AUTHORITIES PENSION FUND vs F & R TRAVEL TOURS AND CAR SALES (PVT) LTD and FREEJOY CHIGWIDA and RAPHAEL MAKWARA
Ruled By: MAKARAU JP

HH103-09 : U-TOW TRAILERS (PRIVATE) LTD vs CITY OF HARARE and SUPERLUX (PRIVATE) LIMITED
Ruled By: MAKARAU JP

HH27-07 : EDWARD MARUME and ELLEN CHAMUNORWA vs TODD MURANGANWA
Ruled By: MAKARAU JP

HH224-22 : MUTSA DENHERE and DEMMUSK ENTERPRISES (PVT) LTD vs FAENSA FRISCO LIMITED
Ruled By: CHIRAWU-MUGOMBA J

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HH601-14 : SHI JINWU vs BIG VALLEY MASTERS (PRIVATE) LIMITED and PHILLIMON MUBATA
Ruled By: CHIGUMBA J

View Appeal
HH329-17 : MARINDA FENESEY vs GATEWAY PRIMARY SCHOOL and K M RICQUEBOURG N.O. and GATEWAY PRIMARY SCHOOL PARENTS ASSOCIATION and THE SHERIFF OF ZIMBABWE
Ruled By: MUSAKWA J

SC108-21 : VALENTINE MUSHAYAKURARA vs ZIMBABWE LEAF TOBACCO COMPANY (PRIVATE) LIMITED
Ruled By: MALABA CJ, UCHENA JA and CHIWESHE AJA

HB57-15 : SIPIWO NKOMO vs MLWELIWENKULULEKO NCUBE
Ruled By: MUTEMA J

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HH661-16 : M COMPANY (PVT) LTD vs ZIMBABWE REVENUE AUTHORITY
Ruled By: KUDYA J

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

CC07-16 : AMOS MAKANI and OTHERS vs ARUNDEL SCHOOL and OTHERS
Ruled By: CHIDYAUSIKU CJ, MALABA DCJ, ZIYAMBI JCC, GWAUNZA JCC, GARWE JCC, GOWORA JCC, HLATSHWAYO JCC, PATEL JCC and GUVAVA JCC

SC14-22 : CRISPEN VUNDLA and DAVID MUCHINGURI vs INNSCOR AFRICA BREAD COMPANY ZIMBABWE (PVT) LTD and MAXWELL SABILIKA N.O.
Ruled By: KUDYA AJA

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Law Portal Zimbabwe

Variation of Contracts re: Deed of Settlement iro Waiver, the Presumption Against Waiver and the Doctrine of Estoppel

View Appeal HH211-18 : MOSLEY MASHINGAIDZE vs PRECIOUS CHIPUNZA Ruled By: MATANDA-MOYO J

SC19-12 : JAMESON RUSHWAYA and ANNIE RUSHWAYA and XELOD INVESTMENTS PL vs SWIMMING POOL & UNDERWATER REPAIRS PL and PATTERSON TIMBA and AEPROMM RESOURCES PL and TOLROSE INVESTMENTS PL Ruled By: MALABA DCJ, ZIYAMBI JA and GOWORA AJA

SC32-09 : VIMBAI MBISVA vs RAINBOW TOURISM GROUP LIMITED t/a RAINBOW HOTEL & TOWERS Ruled By: SANDURA JA, ZIYAMBI JA and MALABA JA

Appealed HB59-09 : DINESH MANILAL NARAN vs RONNAH MAFURIRANO and THE REGISTRAR OF DEEDS Ruled By: KAMOCHA J

HH90-10 : LOCAL AUTHORITIES PENSION FUND vs F & R TRAVEL TOURS AND CAR SALES (PVT) LTD and FREEJOY CHIGWIDA and RAPHAEL MAKWARA Ruled By: MAKARAU JP

HH103-09 : U-TOW TRAILERS (PRIVATE) LTD vs CITY OF HARARE and SUPERLUX (PRIVATE) LIMITED Ruled By: MAKARAU JP

HH27-07 : EDWARD MARUME and ELLEN CHAMUNORWA vs TODD MURANGANWA Ruled By: MAKARAU JP

HH224-22 : MUTSA DENHERE and DEMMUSK ENTERPRISES (PVT) LTD vs FAENSA FRISCO LIMITED Ruled By: CHIRAWU-MUGOMBA J

View Appeal HH601-14 : SHI JINWU vs BIG VALLEY MASTERS (PRIVATE) LIMITED and PHILLIMON MUBATA Ruled By: CHIGUMBA J

View Appeal HH329-17 : MARINDA FENESEY vs GATEWAY PRIMARY SCHOOL and K M RICQUEBOURG N.O. and GATEWAY PRIMARY SCHOOL PARENTS ASSOCIATION and THE SHERIFF OF ZIMBABWE Ruled By: MUSAKWA J

SC108-21 : VALENTINE MUSHAYAKURARA vs ZIMBABWE LEAF TOBACCO COMPANY (PRIVATE) LIMITED Ruled By: MALABA CJ, UCHENA JA and CHIWESHE AJA

HB57-15 : SIPIWO NKOMO vs MLWELIWENKULULEKO NCUBE Ruled By: MUTEMA J

View Appeal HH661-16 : M COMPANY (PVT) LTD vs ZIMBABWE REVENUE AUTHORITY Ruled By: KUDYA J

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

CC07-16 : AMOS MAKANI and OTHERS vs ARUNDEL SCHOOL and OTHERS Ruled By: CHIDYAUSIKU CJ, MALABA DCJ, ZIYAMBI JCC, GWAUNZA JCC, GARWE JCC, GOWORA JCC, HLATSHWAYO JCC, PATEL JCC and GUVAVA JCC

SC14-22 : CRISPEN VUNDLA and DAVID MUCHINGURI vs INNSCOR AFRICA BREAD COMPANY ZIMBABWE (PVT) LTD and MAXWELL SABILIKA N.O. Ruled By: KUDYA AJA

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Law Portal
Zimbabwe

View Appeal
HH211-18 : MOSLEY MASHINGAIDZE vs PRECIOUS CHIPUNZA
Ruled By: MATANDA-MOYO J

SC19-12 : JAMESON RUSHWAYA and ANNIE RUSHWAYA and XELOD INVESTMENTS PL vs SWIMMING POOL & UNDERWATER REPAIRS PL and PATTERSON TIMBA and AEPROMM RESOURCES PL and TOLROSE INVESTMENTS PL
Ruled By: MALABA DCJ, ZIYAMBI JA and GOWORA AJA

SC32-09 : VIMBAI MBISVA vs RAINBOW TOURISM GROUP LIMITED t/a RAINBOW HOTEL & TOWERS
Ruled By: SANDURA JA, ZIYAMBI JA and MALABA JA

Appealed
HB59-09 : DINESH MANILAL NARAN vs RONNAH MAFURIRANO and THE REGISTRAR OF DEEDS
Ruled By: KAMOCHA J

HH90-10 : LOCAL AUTHORITIES PENSION FUND vs F & R TRAVEL TOURS AND CAR SALES (PVT) LTD and FREEJOY CHIGWIDA and RAPHAEL MAKWARA
Ruled By: MAKARAU JP

HH103-09 : U-TOW TRAILERS (PRIVATE) LTD vs CITY OF HARARE and SUPERLUX (PRIVATE) LIMITED
Ruled By: MAKARAU JP

HH27-07 : EDWARD MARUME and ELLEN CHAMUNORWA vs TODD MURANGANWA
Ruled By: MAKARAU JP

HH224-22 : MUTSA DENHERE and DEMMUSK ENTERPRISES (PVT) LTD vs FAENSA FRISCO LIMITED
Ruled By: CHIRAWU-MUGOMBA J

View Appeal
HH601-14 : SHI JINWU vs BIG VALLEY MASTERS (PRIVATE) LIMITED and PHILLIMON MUBATA
Ruled By: CHIGUMBA J

View Appeal
HH329-17 : MARINDA FENESEY vs GATEWAY PRIMARY SCHOOL and K M RICQUEBOURG N.O. and GATEWAY PRIMARY SCHOOL PARENTS ASSOCIATION and THE SHERIFF OF ZIMBABWE
Ruled By: MUSAKWA J

SC108-21 : VALENTINE MUSHAYAKURARA vs ZIMBABWE LEAF TOBACCO COMPANY (PRIVATE) LIMITED
Ruled By: MALABA CJ, UCHENA JA and CHIWESHE AJA

HB57-15 : SIPIWO NKOMO vs MLWELIWENKULULEKO NCUBE
Ruled By: MUTEMA J

View Appeal
HH661-16 : M COMPANY (PVT) LTD vs ZIMBABWE REVENUE AUTHORITY
Ruled By: KUDYA J

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

CC07-16 : AMOS MAKANI and OTHERS vs ARUNDEL SCHOOL and OTHERS
Ruled By: CHIDYAUSIKU CJ, MALABA DCJ, ZIYAMBI JCC, GWAUNZA JCC, GARWE JCC, GOWORA JCC, HLATSHWAYO JCC, PATEL JCC and GUVAVA JCC

SC14-22 : CRISPEN VUNDLA and DAVID MUCHINGURI vs INNSCOR AFRICA BREAD COMPANY ZIMBABWE (PVT) LTD and MAXWELL SABILIKA N.O.
Ruled By: KUDYA AJA