Final Orders re: Judgment in Personam iro Parties Bound by a Court Order

HH79-12 : MARIANE SABETA vs COMMISSIONER GENERAL ZIMBABWE REVENUE AUTHORITY
Ruled By: MATHONSI J

This is an application for an order compelling the respondent to assess capital gains tax payable in respect of the sale of Stand 965 Mabelreign Township, Harare and to receive such tax from the Deputy Sheriff for Harare on the pain of costs of the application.

The said property is currently registered in the name of a company known as Ellseck Investments (Private) Ltd.

The genesis of the matter is that the applicant concluded a sale agreement with Ellseck Investments (Pvt) Ltd for the purchase of Stand 965 Mabelreign Township for US$48,000 on 14 January 2010. She says she paid the full purchase price to the seller through mortgage finance from ZB Building Society.

Conveyancers, Danziger & Partners, were instructed to attend to the transfer of the property into the applicant's name.

The applicant states, that, before purchasing the property aforesaid, she had diligently conducted a Deeds Office search and satisfied herself that indeed the property was registered in the name of the seller and was not encumbered in any way.

It turns out that the seller did not co-operate in the process of transfer of the property to the applicant resulting in the applicant approaching this court, in case No. HC6737/10, for an order compelling the seller to perform its obligations in terms of the agreement of the parties and the law.

On 8 December 2010, this court, per MAVANGIRA J, issued an order against Ellseck Investments (Pvt) Ltd in favour of the applicant which reads as follows:

“IT IS HEREBY ORDERED THAT:

1. The Respondent shall, within ten (10) days of service of this court order upon it, provide Messrs Danziger & Partners Legal Practitioners with all the information and documents necessary for the registration of transfer of Stand 965 Mabelreign Township, Harare into the name of the applicant.

2. The Respondent shall, also within ten (10) days of service of this court order upon it, appoint a representative and execute all the necessary legal documents authorizing such representative to do everything necessary for the purpose of effecting transfer of Stand 965 Mabelreign Township, Harare into the name of the applicant including complying with all the administrative requirements of the registration of the transfer.

3. In the event of the Respondent failing to comply with paragraphs 1 and 2 above, the Deputy Sheriff for Harare shall be authorized to carry out all the acts required of the respondent to enable transfer of Stand 965 Mabelreign Township, Harare to be registered into the name of the applicant.

4. The Respondent shall bear the costs of this application on the legal practitioner and client scale.”

One of the acts required to enable transfer of the property to the applicant is payment of capital gains tax, assessed by the respondent in this case in terms of the Capital Gains Tax Act [Chapter 23:01].

It would appear that Ellseck Investments (Pvt) Ltd did not comply with the court order issued by MAVANGIRA J. forcing the applicant to fall back on the alternative term of the order, that of the Deputy Sheriff performing the acts necessary to give transfer to the applicant.

When the Deputy Sheriff approached the respondent's office for assessment and payment of Capital Gains Tax, he did not get any joy. The respondent refused to perform his statutory duties according to the Deputy Sheriff's return of 20 April 2011;

“Attempted to obtain assessment of capital gains tax in the presents (sic) of instructing attorney; Mrs Dzangare, advised that they could not comply with the requirements since there were outstanding payments.”

In a letter written to the conveyancer, on 21 March 2011, on behalf of the respondent, his position on the matter was set out thus:

“We wish to draw your attention to the fact that the initial transfer of the above mentioned Stand, from Clyde Chitsinde to Ellseck Investments Private Limited, was done fraudulently as no capital gains tax was paid as is required by the law.

The Zimbabwe Revenue Authority is therefore not in a position to accept payment of capital gains tax from Ellseck Investments Private Limited or to issue a capital gains clearance certificate in respect of the transfer from Chivhu Property Limited to your client as the initial transfer was tainted with illegability.

Thus, the original seller of the property, that is, Clyde Chitsinde, should first come and pay capital gains tax in respect of the sale of the property to Ellseck Investments Private Limited before capital gains tax in respect of the sale in question.”

It was not explained why the sins of the previous seller should be visited upon the doorsteps of the current seller, or, indeed, the applicant, who, for all intents and purposes, is the only interested party to the whole exercise.

Neither was it explained what prejudice would be suffered by the collector of taxes if capital gains tax was assessed and paid by or on behalf of Ellseck (Pvt) Ltd, which tax is now due, the property having been sold to the applicant.

In his opposing affidavit, the respondent also made reference to the fact, that, his investigations have revealed that the applicant purchased the same property from Clyde Chitsinde and he wondered why she had to buy the same property again from Ellseck (Pvt) Ltd.

In support of that claim, he attached handwritten office notes of interviews whose author is not disclosed.

He did not explain why an affidavit could not be obtained from the author to buttress his case, especially as those notes have no evidentiary value whatsoever.

I therefore reject those notes.

Counsel for both parties are agreed, that, the only issue to be determined is whether the respondent is empowered, by the legislation that he administers, to refuse to assess and receive capital gains tax on the basis that it has come to his attention that the previous owner of the property sold did not pay capital gains tax when he sold the property himself.

Counsel for the applicant argued, that, neither the Revenue Authority Act [Chapter 23:11] or the Capital Gains Tax Act [Chapter 23:04] empower the respondent to refuse to assess and collect capital gains tax.

He further submitted, that, the respondent has both criminal and civil remedies to deal with tax defaulters without resorting to the unorthodox actions he has employed in this matter.

He is aware of the particulars and whereabouts of the defaulter, Clyde Chitsinde, and should pursue those remedies against him.

On the other hand, counsel for the respondent strongly argued, that, the respondent is not obliged to issue a tax clearance certificate to the applicant because she is not a person entitled to it in terms of section 34(c) of the Revenue Authority Act and is not covered by section 6 of the Capital Gains Tax Act, which is the charging section.

He took the view, that, only the seller, Ellseck (Pvt) Ltd was entitled to be issued with the clearance certificate. In terms of the court order referred to above, it is the Deputy Sheriff who is entitled to the clearance certificate.

When his attention was drawn to the Deputy Sheriff's return of service, to the effect that the respondent still refused to issue the clearance certificate to him, counsel for the respondent could not explain that.

In my view, there is a court order clothing the Deputy Sheriff with authority to enter the shoes of Ellseck Investments and pay Capital Gains Tax on its behalf in order to facilitate transfer of the property to the applicant.

That court order is still binding and must be complied with.

HH34-09 : JOHN CAMERON ASHER vs MINISTER OF STATE RESPONSIBLE FOR NATIONALL SECURITY, LANDS, LAND REFORM AND RESETTLEMENT IN THE PRESIDENT'S OFFICE AND T. NYIKADZINO
Ruled By: CHATUKUTA J

I, however, believe that as the Zimbabwe Republic Police is not before me, it is not proper to order their involvement in the eviction of the second respondent.

HH86-09 : CHAWASARIRA TRANSPORT (PVT) LTD vs THE RESERVE BANK OF ZIMBABWE
Ruled By: BHUNU J

The respondent, that is to say the Reserve Bank of Zimbabwe is a body corporate established in terms of the Reserve Bank Act [Chapter 22:15]. Its function, among others, include acting as the Exchange Control Authority in terms of the Exchange Control Act [Chapter 22:05] as read with the Exchange ...

On the other hand, the applicant is a duly registered company which is in the business of exporting commodities.

In terms of section 7 of the Exchange Control Regulations (Currency Exchange) Order S.I.9 of 2004, the applicant is required to acquit its export documentation, that is to say, repay or settle its debts or obligations to the respondent arising from export receipts commonly known as CD3 forms. The section reads:

“7(1) With effect from the 1st January 2004, every business organisation engaging in the export of goods and services shall be required to acquit the export documentation in respect of those exports.”

Failure to acquit CD3 forms in terms of the Exchange Control Regulations (Currency Exchange) Order S.I.9 of 2004 amounts to a criminal offence punishable by the courts.

Sometime in 2000, the applicant fell into arrears with the acquittal of some of its CD3 forms.

As a result, it was prosecuted, convicted, and fined in the Magistrates Court. In sentencing the applicant, the trial magistrate found special circumstances for not ordering repatriation. As a result, he sentenced the applicant to a fine of $2,000,000 but declined to order repatriation as requested by the State.

Repatriation, in terms of the Exchange Control Regulations (Currency Exchange) Order S.I.9 of 2004 means to pay back.

Following the conviction and sentencing of the applicant, the respondent demanded the acquittal of the outstanding CD3 forms in terms of the Exchange Control Regulations (Currency Exchange) Order S.I.9 of 2004.

The applicant refused to repay or settle its debts to the respondent arising from the outstanding CD3 forms arguing that it had been absolved by the magistrate from paying its debts to the respondent whereupon the respondent allegedly invoked the sanction provided by section 7 of the Exchange Control Regulations S.I.9 of 2009.

The effect of which was to freeze the applicant's foreign currency account number 9440031502000.

The applicant then filed this application seeking a declarator to the effect that it has been absolved from regularizing or acquitting its CD3 forms by the Magistrates Court.

It also sought an order overriding the sanction imposed by the respondent.

The respondent has objected to the applicant's application on the basis that it has not exhausted its domestic remedies and that the magistrate's refusal to order acquittal of the CD3 forms did not amount to absolving the applicant from regularizing or acquitting its CD3 forms according to law.

The issues which arise from the undisputed facts is:

(i) Whether or not the magistrate, in sentencing the applicant, absolved it from regularizing or acquitting its CD3 forms according to law; and

(ii) Whether or not the applicant is properly before this Court.

While it is desirable that parties should be encouraged to exhaust their domestic remedies before approaching the courts, the mere existence of domestic remedies does not oust the unlimited jurisdiction of this Court.

The Court has therefore discretion whether or not to entertain the application.

Having regard to the fact that the regularization or acquittal of CD3 forms has a direct bearing on the fiscus, the country's economy, and the applicant's business operations, it is in the national interest that the matter be determined as soon as possible. That being the case, I have decided to determine the matter on the merits so as to avoid unnecessary delays which may have the effect of prejudicing both parties and the nation at large.

I now proceed to determine the application on the merits.

In sentencing the applicant, the trial magistrate declined to make a repatriation order on the basis that he had found special circumstances. In his reasons for sentence…, the magistrate remarked that:

“For all the forgoing reasons, it is this court's finding that special reasons or circumstances exist in relation to both the offence(s) and the offender. See S v Chisiwa 1981 ZLR 666 (H): S v Mbano 1990 (1) ZLR 270 (SC).

It will be considered favourable that the Accused Company is a first offender.

Of course, the message must be distinctly conveyed to the Accused Company, and would be offenders, that, CD3 forms must be acquitted within stipulated times as directed.

It will be noted also that quite substantial amounts of monies were not accounted for to the Reserve Bank and that this is to be discouraged by the meting out of a fairly stiff penalty for the conviction today, but not necessarily repatriation of the monies as urged by State Counsel.

The following is the Accused Company's sentence:-

Fined $2,000,000, (new currency) or, in default of payment, Warrant of execution against property.”

I have carefully gone through the trial magistrate's reasons for sentence and I have found nowhere he stated or suggested that the applicant was excused or absolved from acquitting its CD3 forms.

It is clear, from a proper reading of the trial magistrate's reasons for sentence, that, he was alive to the applicant's statutory obligation to acquit its CD3 forms hence his remarks to the effect that the message must be driven home to the applicant, and others, that, CD3 forms must be acquitted within the prescribed time limits.

Check the use of the compulsive word “must” and not “should”.

The acquittal of CD3 forms is a statutory obligation imposed by law. That being the case, it is not the function of the courts to excuse or absolve anyone from complying with the law.

The mere fact that in punishing the applicant during criminal proceedings the trial magistrate declined to order repatriation did not absolve or excuse the applicant from complying with the law.

By the same token, the refusal to order repatriation was no bar to the respondent from compelling the applicant to discharge its statutory obligations failure of which it was entitled to invoke any statutory penalties according to law.

Counsel for the applicant, placing reliance on the case of Flood v Taylor 1978 RLR 230 further argued, that, the matter is now res judicata in the sense that the rights of the parties have already been determined by the magistrate's judgment. It was his argument that:

“All rights and obligations of the Applicant and Respondent were concluded by the judgment delivered by the learned Magistrate and does not require the Applicant to exhaust domestic remedies.

Since the matter is now res judicata, it's apparent that the respondent failed to comply with the judgment granted by the magistrate. Contrary to the judgment, they are forcing the applicant to repatriate the monies or acquit CD3 forms, and, as they prohibit the applicant from carrying out transactions on his foreign account number 9440031502000. Strictly speaking, this is a clear violation of a court order hence it amounts to contempt of court.”

It is needless to say that counsel's reliance on the case of Flood v Taylor 1978 RLR 230 is grossly misplaced. That case held…, that:

“When res judicata is pleaded by way of estoppel, it amounts to an allegation that the whole of the legal rights and obligations of the parties are concluded by the earlier judgment and that the plaintiff is estopped by the findings of fact involved in that earlier judgment (see HALSBURY's Laws of England, 4th Edition, Volume 16, paragraph 1527). The central issue then is what the judgment prayed in aid should be treated as concluding and for what conclusion it is to stand.”

The applicant's plea of res judicata falters at the very first hurdle in that the respondent in this case was not a party to the criminal proceedings in the Magistrates' Court. It is common cause that the parties to that case were the State and the applicant.

In any case, the magistrate's judgment did not order or prohibit the respondent from compelling the applicant to discharge its statutory obligations of repatriating or acquitting its CD3 forms.

That being the case, the respondent cannot be bound by a judgment to which it was not a party and which made no specific order binding on it.

Appealed
HH55-12 : STREAMSLEIGH INVESTMENTS (PRIVATE) LIMITED vs AUTOBAND INVESTMENTS (PRIVATE) LIMITED
Ruled By: BERE J

The third argument which was also raised by the applicant's counsel was that the application brought by the respondent in the lower court did not cite the applicant as a party to the proceedings and therefore the intended eviction might be targeted at the wrong and innocent party.I have extreme difficulties in following this argument ...

HH32-12 : ZELLCO CELLULLAR PL vs NETONE CELLULLAR PL and DR CALLISTUS NDLOVU and REWARD KANGAI and LYNDON NKOMO
Ruled By: GOWORA J

On 13 April 2011, under Case No. HC3507/11, PATEL J granted a provisional order in the following terms;“INTERIM RELIEF GRANTEDPending the determination of this matter, the applicant is granted the following interim relief;1. The decision of the Respondent to cancel the Service Provider Agreement be and is hereby declared unlawful ...

On 13 April 2011, under Case No. HC3507/11, PATEL J granted a provisional order in the following terms;

“INTERIM RELIEF GRANTED

Pending the determination of this matter, the applicant is granted the following interim relief;

1. The decision of the Respondent to cancel the Service Provider Agreement be and is hereby declared unlawful and is set aside.

2. The Respondent be and is hereby interdicted from effecting any of the consequences of such cancellation in terms of Clauses 15 and 16 of the Service Provider Agreement.

3. The Respondent be and is hereby ordered to retract its text message sent to the Applicant's post-paid customers by way of a similar message to the effect that the Applicant's Service Provider Agreement is still valid and subsists and that customers should continue to pay their bills to Zellco Cellullar and that the Respondent regrets the previous notification of cancellation which was issued in error.

PROCEDURE FOR DETERMINATION OF FINAL ORDER SOUGHT

N/A

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:

4. The Respondent is interdicted from invoking and implementing the termination provisions of Clause 15 and 16 of the Service Provider Agreement pending the resolution of the dispute declared by the Applicant in accordance with Clause 19 of the Service Provider Agreement.

SERVICE OF PROVISIONAL ORDER

That leave be and is hereby granted to the Applicant's legal practitioners to effect service of this Provisional Order upon the Respondent.”

The parties to the dispute under Case No. HC3507/11 are the applicant and the first respondent respectively. The second, third, and fourth respondents were not cited as parties thereto.

On 10 May 2011, the applicant then launched these proceedings as an ordinary court application seeking the following relief:

“IT IS ORDERED THAT:

1. The second, third, and fourth respondents be and are hereby held to be properly enjoined to these proceedings.

2. The respondents be and are hereby held to be in wilful contempt of the court order by PATEL J on 13 April 2011 in HC3507/11.

3. The first respondent be and is hereby ordered purge its contempt and to mitigate the consequences of cancellation of the Service Provider Agreement that it effected against the applicant in defiance of the court order within 48 hours of this order as follows:

(a) Remit to the applicant all payments received directly from the applicant's customers from date of unlawful cancellation of the Service Provider Agreement to date.

(b) Cancel all contracts or arrangements for provision of direct services concluded with the applicant's customers from date of cancellation of the said Agreement to date.

(c) Provide the applicant with all call data relating to its customers as from 1 April to date in the form and detail as ordinarily provided in terms of the Service Provider Agreement.

(d) Action all requests for network services submitted by the applicant from 1 April to date.

4. The first respondent be and is hereby ordered to broadcast, within 24 hours of this order, the following text message to the applicant's customers:

“NetOne sincerely regrets the text messages sent to all Zellco's subscribers on 5 April 2011 and 19 April 2011 which text messages were grossly inaccurate, misleading, sent in error and should be completely disregarded. Customers are advised that the Service Provider Agreement is still valid and subsists and should continue to pay their bills to ZELLCO CELLULAR. There will be no loss of service.”

5. The second, third, and fourth respondents be and are hereby ordered to ensure full compliance by the first respondent with the terms of this order failure of which they shall be committed to prison until such time as full compliance takes place.

6. The respondents shall not be heard in any court, whether in this matter or in matters already before the courts in HC8318/10, HC1587/11, and HC3507/11 or any new related matter, unless and until they have purged their contempt.

7. The first respondent be and is hereby ordered to pay a fine for contempt of court in the sum of USD20,000 within 7 days of service of this final court order upon it.

8. The second, third, and fourth respondents be and are hereby ordered, in their persons, to pay a fine of USD1,500 each within 7 days of service of this final court order upon them.

9. The respondents be and are hereby ordered to pay the costs of this application on a higher scale, that of legal practitioner and client basis, jointly and severally, one paying the others to be absolved.”

The application is opposed by all four respondents.

The third respondent has filed an opposing affidavit on his own behalf and on behalf of the first respondent.

The respondents have also raised points in limine....,.

The next issue raised in limine is that the second, third, and fourth respondents have been wrongly cited herein and their citation in facts amounts to a mis-joinder.

They are in fact cited in their official capacities, i.e as representatives of the first respondent.

It is contended, by the respondents, that their citation herein in fact amounts to a duplication of the citation of the first respondent.

The applicant has prayed for the joinder of the second, third, and fourth respondents to these proceedings. Since they are already cited it is difficult to understand why an order for their joinder to these particular proceedings is being sought.

Paragraph 2 of the draft order seeks that the respondents be found in contempt for lack of or refusal to comply with the order granted by PATEL J against the first respondent under H3507/11.

It is trite that an applicant for an order for committal must establish the following:

1. That an order was granted against the respondent.

2. That the respondent was either served with the order or informed of the grant thereof against him and can have no reasonable ground for disbelieving that information; and

3. That the respondent has either disobeyed the order or neglected to comply therewith.

See Uncedo Taxi Service Association v Mtetwa & Ors 1999 (2) SA 495; Consolidated Fish Distributors (Pty) Ltd v Zive & Ors 1968 (2) SA 517.

Contempt of court, in the context of these proceedings, would entail a deliberate disobedience of a lawful order issued by a court of competent jurisdiction.

That an order was granted against the first respondent is not in dispute. The order was served upon the first respondent's legal practitioners who are also instructed by the second, third, and fourth respondents herein.

Service of the order upon the legal practitioners clearly constitutes proof of service upon the first respondent.

The applicant contends that the first respondent is in contempt of the provisional order granted against it by PATEL J on 13 April 2011. It contends, further, that, in view of the continued act of contempt by the first respondent, it, the applicant, addressed a letter to the first respondent, through the fourth respondent, which letter it copied to the second and third respondents requesting them to comply with the order. Despite the letter having demanded action from the respondents, the applicant contends that the order has not been complied with.

It is trite that a party cannot be found to be in contempt of an order which has not been addressed to it or which has not been served upon such party.

The provisional order granted against the first respondent is an order ad factum praestandum; an order to do or refrain from doing a thing.

It is trite that, by its nature, an order ad factum praestandum, as the provisional order in this case is, is an order in personam, and, consequently, is only binding upon those against whom it has been issued.

The principal object of contempt proceedings is to compel compliance by a party to an order given by a court of competent jurisdiction. Before an applicant can be afforded an order for committal on the basis of contempt of an order of court, an applicant must show that the court's order was either served upon the respondent personally or has been brought to his personal attention.

It is correct, as contended by the respondents, that the order was not granted against the other respondents herein but against the first respondent.

The first respondent is a corporate entity and the affairs of corporate entities are managed and run by their officers and directors, and, any disobedience of court orders must therefore be attributed to the directors of the company. The directors of a company are its mouth, brains, voices, and bodies through which the company acts. Any proceedings by the company are directed, managed, and implemented by them.

To this end, the applicant contends that the second respondent, as chairman of the Board, has ultimate authority to cause and direct the first respondent to act in a certain way. The third respondent is the Managing Director of the first respondent, and, it is contended by the applicant, that he ensures that the decisions of the first respondent and the Board are implemented. The fourth respondent is a legal practitioner who is the Company Secretary in the first respondent and it is contended, by the applicant, he acts as the legal adviser to the second and third respondents herein.

I am not aware of any principle that would seek to hold liable an officer of a company for acts done by the company unless the person is a member of the Board of Directors.

Clearly, no liability attaches to the fourth respondent herein.

As for the second and third respondents, it is clear that, as Directors, they constitute the physical arm of the first respondent.

A corporation can only comply with a court order through its officers.

Thus, it can be convicted of contempt if its officers have refused or neglected to comply with the court order. A person who also contributes to the commission of the offence, can, without being a principal, be punishable as an accomplice: Holtz v Douglas & Associates en endere 1991 (2) SA 797 (O).

Consequently, a director who has knowledge of the order and causes the company to refuse to obey the order is guilty of contempt.

In Twentieth Century Fox Film Corporation v Playboy Films 1978 (3) SA 202, KING AJ opined as follows:

“A director of a company, who, with knowledge of an order of Court against the company, causes the company to disobey the order is himself guilty of contempt of Court. By his act or omission such director aids and abets the company to be in breach of the order of Court against the company. If it were not so a court would have difficulty in ensuring that an order ad factum praestandum against a company is enforced by a punitive order: VIDE HALSBURY, 4th ed, Vol 9 at 75.

Consequently, Jagger, who had knowledge of the order of Court, is guilty of contempt of an order of this Court.

An order ad factum praestandum against a company should also be served on its directors if a punitive order is sought against the directors in order to establish knowledge of the order of Court.”…,.

The purpose of contempt proceedings is to ensure that court orders are obeyed.

Courts must jealously guard the orders they grant against the community, and, persons appearing before these courts cannot, and should not be allowed to disobey or ignore such orders with impunity.

Since the applicant seeks an order for the incarceration of the second and third respondents herein, it should have ensured that the court order be served upon each of them personally.

It did not do this. It addressed a letter to the fourth respondent.

The applicant has not, in these proceedings, proffered any authority to support its contention that the second, third, and fourth respondents, who had not been cited in the main proceedings, and who were not served with the order, should be found to have been in contempt of the provisional order.

Proceedings for committal for contempt are a form of enforcement of an order ad factum praestandum. An applicant for an order for committal must show that the respondent had personal knowledge of the order from which the proceedings for contempt emanate. A court will not entertain an application for committal for contempt unless wilful or reckless disregard for the order has been proved.

It has been held that before a person can be found guilty of contempt his disobedience of the order must be not only wilful but also mala fide: see Haddow v Haddow 1974 (2) SA 181 (R)…,.

It has also been held that, in proceedings for contempt of court, once a failure to comply with an order of court has been established, wilfulness will normally be inferred, and, the onus is on the person who failed to comply with the order to rebut the inference of wilfulness on a balance of probabilities: see Putco Ltd v TV & Radio Guarantee Co (Pty) Ltd & other related cases 1985 (4) SA 809...,.

At p836D-E SMALLBERGER AJA stated:

“…,. Once a failure to comply with an order of Court has been established, wilfulness will normally be inferred, and the onus will rest upon the person who refused to comply with such order to rebut the inference of wilfulness on a balance of probabilities: cf Du Plessis v Du Plessis 1972 (4) SA 216 (O) at 220A-D. This can be done by such person establishing that he did not intentionally disobey the Court's order.”

In this case, the applicant relies on a letter addressed to the company's Secretary and copied to the second and third respondents.

Even if it were to be inferred that the second and third respondents were informed, through the copy of the letter in question, there is no proof that these copies were actually delivered to the respondents.

The applicant has, in my view, failed to establish personal knowledge of the order on their part and a willful decision to disregard it or disobey it.

The position is different as far as the first respondent is concerned.

The court order in question was issued against it and served on its legal practitioners.

HH47-08 : TSITSI MUZENDA vs PATRICK KOMBAYI and ZIMBABWE ELECTORAL COMMISSION
Ruled By: KUDYA J

At the management meeting held on 21 May 2005, four preliminary issues were referred to trial. These were;

(i) Whether or not the petition was served on time;

(ii) Whether there was proper service on the second respondent;

(iii) Whether security for costs was provided; and

(iv) Whether or not the second respondent was properly joined to the petition.

At the hearing, on noticing that the petition had been lodged with the Registrar of this Court on 15 April 2008, I raised the further issue of whether it was presented within the time limits set out in section 168(2) of the Electoral Act [Chapter 2:13], hereinafter called the Act.

The brief facts were these:

Tsitsi Veronica Muzenda, the petitioner, of the Zimbabwe African National Union (Patriotic Front) ZANU (PF) party, stood as a Senatorial candidate for the Gweru-Chirumanzu senatorial constituency during the harmonized elections held in Zimbabwe on 29 March 2008. She competed for office with Patrick Kombayi, the first respondent, of the Movement for Democratic Change-Tsvangirai party MDC-T. The election was run and conducted by the Zimbabwe Electoral Commission, the second respondent.

The petitioner became aware that the first respondent had won the seat on 5 April 2008 and filed the petition on 15 April 2008.

It was served on 6 May 2008, by the Deputy Sheriff, at Harvest House, the headquarters of the first respondent's political party. The return of service indicates that a court application was served on one Muzuva, a security officer, who accepted service on behalf of the first respondent.

Another copy was served on the second respondent at its place of business on the same day.

The petition did not show that security for costs had been furnished. The first respondent was not served with any recognizance.

Counsel for the petitioner was to advise the Court, from the bar, in argument, that the security for costs was paid in the sum set by the Registrar, and, out of an abundance of caution, recognizance entered at the same time on 23 April 2008.

The first respondent received the petition on 19 May 2008.

The petitioner provided minimal facts of the events that triggered the application. She did not provide the date on which the first respondent was declared the winner by the Constituency Election Officer in terms of section 66(1) of the Electoral Act. She referred to a recount of votes but did not provide any details on the date it was held and its outcome. Some of the facts that appear in her heads of argument were not pleaded in her founding affidavit.

The duty to present an election petition is cast on the losing candidate by section 167 of Electoral Act [Chapter 2:13].

Its format and period of presentation are set out in section 168 of the Electoral Act.

It has to be presented within 14 days after the date on which the declaration of the result in the last constituency for Senatorial elections is made.

The duty is placed by the Electoral Act on the petitioner to establish this fact. It is this fact alone which triggers this legal right for her. Failure by her to establish it would be fatal to her case for the reason that she would have failed to bring her self into the protective ambit of the Electoral Act.

The facts alleged in the affidavit deal with corrupt practices which occurred before and during the election but not after the elections.

It is only illegal practice, as defined, that occurred after the announcement by the Constituency Elections Officer in the last constituency that triggers the 30-day notice period from the date of the alleged illegal practice that is provided in the proviso to section 168(2) of the Electoral Act. The petitioner could only bring her petition within the 14 day period.

I, however, requested that the information that is required to initiate the petition be provided by the second respondent.

At the hearing counsel for the second respondent produced a document from the second respondent which showed that the declaration of the last result in a House of Assembly constituency had been made on 4 April 2008 for the Kariba constituency.

Counsel for the first respondent, correctly in my view, abandoned argument on whether or not the petition had been filed on time.

I accept his reasoning, that, if the result for the House of Assembly seat was announced in Kariba on 4 April 2008, it was unlikely that the result for the Senatorial constituency, which incorporated the Kariba constituency, would have been declared earlier given its size.

The effect of 4 April was that in terms of section 33(4) of the Interpretation Act [Chapter 1:01] the petitioner had at least until 21 April 2008 to present her petition as the 14-day period would have ended on 18 April, a public holiday, which was followed by a Saturday and Sunday: see Nyamapfeni v The Constituency Registrar for Mberengwa East & Others HH27-08 and the cases cited therein.

In casu, the petition, having been filed on 15 April 2008, was presented on time. The issue that I raised, therefore, falls away....,.

3. Whether the second respondent was properly joined as a party

Counsel for the second respondent objected to the citation of the second respondent in the petition. He relied on the definition of respondent found in Part XXIII in section 166 of the Electoral Act [Chapter 2:13]. The section reads as follows:

“166 Interpretation in Part XXIII

In this Part —

“'respondent' means the President, a Member of Parliament or Councillor whose election or qualification for holding the office is complained of in an election petition.
[Definition substituted by section 78 of Act 17 of 2007].”

He invoked the maxim expressio unius est exclusio alterius in aid of his objection.

According to FRANCIS BENNION in his book Statutory Interpretation, Butterworths, 1988…, the expression means “to express one thing is to exclude another.”

Counsel for the second respondent submitted that the legislature deliberately defined respondent in the Electoral Act so as to exclude the second respondent in circumstances where it would automatically have been included by virtue of its overarching role in running and conducting elections. He advanced six reasons upon which he based his submission that the exclusion was deliberate.

Counsel for the petitioner, on the other hand submitted that the second respondent was properly cited because it is an interested party which is charged with the responsibility of giving effect to the order of court. He based his submission on the common law principle of joinder and relied on Tsvangirai v Mugabe and The Electoral Supervisory Commission HH109-05.

He contended that the second respondent would have no obligation to give effect to the determination of Court arising from proceedings in which it did not participate.

He further argued that grave injustice would visit the petitioner if the second respondent's officials, who are implicated in electoral malpractice, are not called to testify.

He seemed to believe that they could only testify if the second respondent was cited as a respondent.

I am persuaded by the six reasons that were advanced by counsel for the second respondent. They clearly demonstrate that the legislature deliberately excluded the citation of the Zimbabwe Electoral Commission as a respondent in electoral petitions brought under Part XXXIII of the Electoral Act.

With the full knowledge of the second respondent's mandate in election matters, the legislature;

(i) Firstly, in section 166 of the Electoral Act did not include it as a respondent, obviously in a bid to guarantee its neutrality in the conduct of elections.

(ii) Secondly, the second respondent is excluded from the protective ambit of section 168(3).

(iii) Thirdly, in section171(3)(b)(ii) it mandated the Electoral Court to certify its determination to, amongst others, the second respondent, which, in itself, would be an anomalous method of alerting a respondent who is before it of its decision. In fact, the other persons who are notified are not respondents but public officials.

(iii) Fourthly, in section 171(a) and (b) the second respondent may be made to pay costs, or a portion thereof, for the culpable conduct of its officials, an obvious fate that befalls any losing or maligned respondent.

(iv) Fifthly, in section 158 as read with section 171(4)(b) any person alleged to have committed an electoral malpractice may be called to vindicate his or her name before such a finding is made against him or her.

In any event, “means” is the operative word in section 166 of the Electoral Act. It carries a different import from such words as “includes”. It is peremptory in nature.

I find that the force of reasoning in Movement for Democratic Change & Anor v Mudede N.O. & Others 2000 (2) ZLR 152 (S) is such that in defining respondent, in section 166 of the Electoral Act, the legislature intended to demonstrate, beyond doubt, the centrality of the winning candidate in election petitions.

The challenge is to him or her. His conduct is impugned in terms of section 167 of the Electoral Act and measured against the principles set out in section 3 of the Electoral Act.

Sections 155 to 157 make the winner liable for the acts of commission or omission that he or his agents or any other person commits with his or their knowledge and consent or approval.

A finding that the election was tainted to such an extent, as would materially affect its outcome, triggers, by operation of law, the holding of a new election.

The second respondent does not have the authority, luxury, or inclination to decline to hold such an election in those circumstances.

I therefore discern of no conceivable reason, in either law or logic, why the second respondent should be cited as a respondent under Part XXXIII of the Electoral Act.

MFALILA J was of the same view, at page 166E-H, in Pio v Smith 1986 (2) ZLR 12 (SC). He held that the predecessor functionaries of the second respondent could not be cited as a respondent under the then prevailing Electoral Act.

HH45-08 : HILLARY SIMBARASHE vs ZIMBABWE ELECTORAL COMMISSION and MABEL CHINOMONA
Ruled By: KUDYA J

At the management meeting that was held on 21 May 2008, three preliminary issues were referred to trial. They were framed as follows:1. Whether the petition is out of time, and, if so, whether this is fatal to the petition.2. Whether the failure to file security for costs timeously renders ...

At the management meeting that was held on 21 May 2008, three preliminary issues were referred to trial. They were framed as follows:

1. Whether the petition is out of time, and, if so, whether this is fatal to the petition.

2. Whether the failure to file security for costs timeously renders the petition void.

3. Whether the first respondent was properly joined as a party.

THE FACTS

The brief facts in this matter are as follows:

On 29 March 2008, the harmonized Presidential, Parliamentary and Council elections were held in Zimbabwe. Hillary Simbarashe, the petitioner, stood as an independent candidate for the House of Assembly seat in the Mutoko North constituency. The elections were run and conducted by the Zimbabwe Electoral Commission, the first respondent. Mabel Chinomona, the second respondent, of the Zimbabwe African National Union (Patriotic Front) ZANU (PF) was one of the candidates who battled it out with the petitioner. On 31 March 2008, she was declared the winner.

The petitioner was unhappy with the pre-election and post-election environment as well as the manner in which the election was conducted. Accordingly, he lodged the present petition with the Registrar on 16 April 2008.

The date of service was not disclosed, but, the second respondent filed her opposing papers on 15 May 2008. She, amongst other things, raised the first two preliminary issues referred for trial.

The first respondent opposed the petition on the basis of misjoinder, hence the third issue.

When I set down the matter for hearing, I directed the parties to furnish me, at the hearing, with information from the Zimbabwe Electoral Commission indicating the date on which the result in the last constituency for election to the House of Assembly was announced by the Constituency Election Officer for that constituency.

This was not done.

I, however, proceeded to hear the matter on the understanding that I would deliver this judgment after that information had been availed. It was only provided by counsel for the first respondent in the morning of 6 June 2008.

He produced a document which has three columns. The first column indicates the province in which the House of Assembly seat is found, the second indicates the constituency, and the last the date on which the V23 Form was signed by the Constituency Elections Officer. The signature is appended on the date on which the Constituency Elections Officer declares the winning candidate. The last V23 Form was signed on 4 April 2008 for the Kariba constituency.

The parties were therefore agreed that the declaration of the result in the last constituency was made on 4 April 2008....,.

3. Whether the first respondent was properly joined as a party

Counsel for the first respondent objected to the citation of the first respondent in the petition. He relied on the definition of respondent found in Part XXIII in section 166 of the Electoral Act [Chapter 2:13]. The section reads as follows:

“166 Interpretation in Part XXIII

In this Part —

'respondent' means the President, a Member of Parliament or Councillor whose election or qualification for holding the office is complained of in an election petition.

[Definition substituted by section 78 of Act 17 of 2007].”

He invoked the maxim expressio unius est exclusio alterius in aid of his objection.

According to FRANCIS BENNION, in his book Statutory Interpretation, Butterworths, 1988…, the expression means “to express one thing is to exclude another.”

In full, FRANCIS BENNION, in his book Statutory Interpretation, Butterworths 1988 states thus:

“The maxim expressio unius est exclusio alterius (to express one thing is to exclude another) is an aspect of the principle expressum facit cessare tacitum known in short as the expressio unius principle; it is applied where a statutory proposition might have covered a number of matters but in fact mentions only some of them. Unless these are mentioned merely as examples or ex abundanti cautela, or for some other sufficient reason, the rest are taken to be excluded from the proposition.

The expressio unius principle is also applied where a formula which itself may or may not include a certain class is accompanied by words of extension naming only some members of that class. The remaining members of that class are then taken to be excluded.

Again, the principle may apply where an item is mentioned in relation to one matter but not in relation to another matter equally eligible.”

Counsel for the first respondent submitted that the legislature deliberately defined respondent in the Electoral Act so as to exclude the first respondent in circumstances where it should automatically have been included by virtue of its overarching role in running and conducting elections. It did not desire that the first respondent be made a party in electoral petitions. He advanced six reasons upon which he based his contention that the exclusion was deliberate.

Counsel for the petitioner, on the other hand, submitted that the first respondent was properly cited because it is an interested party which bears the responsibility to give effect to the order of the Court. He based his submission on the common law principle of joinder and relied on Tsvangirai v Mugabe and The Electoral Supervisory Commission HH109-05.

Counsel for the petitioner referred to Merchant Shipping Provisions Lowe v Dorling 1906 (2) KB 772…,; Blackburn v Flavelle 1881 6 APP CAS 628; Dettman v Goldfain & Another 1975 (3) SA 385; and Terblanche v SA Eagle Insurance Company Ltd 1983 (2) SA 501 (N) and cautioned the Court against the application of the principle in a manner that would result in grave injustice.

In his oral submissions, counsel for the petitioner indicated that the grave miscarriage of justice that would occur would be the failure by first respondent to obey any court order arising from the petition if it was not cited, and, secondly, that the petition would be hamstrung and compromised by a failure to call the evidence from any of the officials of the first respondent who are implicated in electoral malpractice.

I agree with counsel for the first respondent that the six reasons he advanced demonstrate the full force of the expressio unius principle at play in the present matter.

With the full knowledge of the first respondent's mandate in election matters, the legislature;

(i) Firstly, in section 166 of the Electoral Act, did not include it as a respondent, obviously in a bid to guarantee its neutrality in the conduct of elections.

(ii) Secondly, the first respondent is excluded from the protective ambit of section 168(3).

(iii) Thirdly, in section 171(3)(b)(ii), it mandated the Electoral Court to certify its determination to, amongst others, the first respondent, which, in itself, would be an anomalous method of alerting a respondent who is before it of its decision. In fact, the other persons who are notified are not respondents but public officials.

(iv) Fourthly, in section 171(a) and (b), the first respondent may be made to pay costs or a portion thereof for the culpable conduct of its officials, an obvious fate that befalls any losing or maligned respondent.

(v) Fifthly, in section 158 as read with section 171(4)(b) any person alleged to have committed an electoral malpractice may be called to vindicate his or her name before such a finding is made against him or her.

These legislative provisions were put in place to emphasize the fact that the first respondent could not be a party to proceedings that relate to petitions in terms of Part XXIII of the Electoral Act.

In any event, “means” is the operative word in section 166 of the Electoral Act.

It carries a different import from such words as “includes”. It is peremptory in nature. Again, one resorts to the formulation in Movement for Democratic Change & Anor v Mudede NO & Others 2000 (2) ZLR 152 (SC).

The parties who can be cited as respondents are indicated.

The legislature was aware that the first respondent was in charge of elections. The aim and object of defining respondent in this limited fashion appears from the very nature of an election petition. It is a challenge against the actions of the winning candidate before, during and after an election. In other words, at the center of an election petition is the winning candidate. It is designed to impugn or vindicate the winner's acts of commission and omission against the benchmarks set out in section 3 of the Electoral Act.

Section 167 of the Electoral Act outlines the causes of action in an election petition. These are;

(i) The absence of qualification;
(ii) Disqualification;
(iii) Electoral malpractice;
(iv) Irregularity; or
(v) Any other cause whatsoever.

The first two grounds arise directly from the candidate. Electoral malpractice and irregularity may arise from the actions or omissions of the candidate, his chief election agent, his election agent or of any other person.

Part XXI, in sections 155, 156 and 157 of the Electoral Act deals with how an Electoral Court may determine petitions.

It makes the winner liable for his or her own actions; for the actions of his or her chief election agent; for the actions of his or her agent; or for the actions of any person done with his or her knowledge and consent or approval or the approval and consent of his agents.

Once an electoral malpractice is found to have been committed, with the knowledge and consent or approval of the winner or of his agents, and that malpractice materially affected the election, it renders that election void and triggers the holding of a new election.

The effect is that the first respondent is obliged to hold a new election. This is by operation of law. The first respondent does not necessarily require a citation in an election petition to carry out this statutory mandate....,.

What emerges from this Part of the Electoral Act is that an election is set aside for the electoral malpractice committed by the candidate whether personally or through his agents, or by any other person with his knowledge and consent or approval.

The first respondent is not a candidate in such an election.

All it has to do is to await the order of the court declaring an election valid or void. There is no reason for it to be joined in as a party. No prejudice will arise to either candidate or to the first respondent if it is not cited. There is therefore no logical reason for citing it.

HH131-09 : MAIROS LISIMBA vs LIZZY CHIPENDO
Ruled By: CHITAKUNYE J

On 16 March 2007, and at Harare, the applicant entered into a sale agreement with Gatsikanayi Enock Nyamupanda (herein after referred to as Nyamupanda) for the purchase of a certain piece of land being Stand Number 9642 A Salisbury Township also known as Number 2 Umuguza Close, Wilmington Park, Cranborne, Harare, held under Deed of Transfer ...

The applicant duly paid the purchase price and title was passed to him on 20 April 2007 under Deed of Transfer number 2076/07.

He however could not take occupation of the property as the respondent's son, Killian Chipendo, was in occupation. As a result, the applicant instituted legal proceedings for the eviction of Killian Chipendo and all those claiming occupation through him in case number HC2951/07.

On 26 February 2008, the eviction order was granted and a writ of eviction issued. On 26 August 2008, Killian Chipendo and all those claiming occupation through him were duly evicted by the Deputy Sheriff.

The respondent, who was amongst those evicted on that date, re-took occupation of the property without any court order.

The respondent contended that she was not claiming occupation through Killian Chipendo but in her own right as the surviving spouse of the late Ronnie T Chipendo.

It is common cause that the Estate late R T Chipendo was administered by an executor dative – Muchivete Hungwe of Messrs Hungwe and Partners legal practitioners.

The executor dative obtained authority to sell the property in terms of section 120 of the Administration of Deceased Estates Act [Chapter 6:01] from the Master of the High Court.

Upon obtaining the Master of the High Court's consent he duly sold the property to Gatsikanayi Enock Nyamupanda. Title was passed to Gatsikanayi Enock Nyamupanda by virtue of Deed of Transfer number 896/03.

After the sale, the executor dative did a final Administration Account and distribution plan. The proceeds of the sale were shared amongst the children of the late Ronnie T Chipendo.

The respondent did not partake in the proceeds as she was said to have divorced the late R T Chipendo in 1991 - well before his death.

Gatsikanayi Enock Nyamupanda, as the new owner, sold the property to the applicant on 16 March 2007. The applicant duly obtained title by virtue of Deed of Transfer number 2076/07 dated 20 April 2007.

It was in furtherance of his title to the property, that, on 26 February 2008, the applicant obtained an order for the eviction of Killian Chipendo and all those claiming occupation through him from this court.

The eviction was duly executed by the Deputy Sheriff on 26 August 2008.

As already alluded to, the respondent was one of those who were evicted from the property. She however re-took occupation without any court order. In Mairos Lisimba v Lizzy Chipendo HC868/09, the applicant therein instituted contempt of court proceedings against the respondent for re-occupying the property after eviction.

The respondent opposed the application claiming that she was never cited in the proceedings that led to Killian Chipendo being evicted. As a surviving spouse she occupied the house in her own right.

In this case, HC2220/09, the applicant sought an eviction order against the respondent, her guests and invitees, and all those claiming occupation through her from the property in question.

The respondent opposed the application.

Her opposition was based on her contention that she was the surviving spouse as she had never divorced the late R T Chipendo.

There was no denying that the respondent did not challenge the initial sale of the property by the executor dative to Gatsikanayi Enock Nyamupanda. She also had not objected to the subsequent sale by Gatsikanayi Enock Nyamupanda to the present applicant.

It was further not disputed the property was now registered in the applicant's name.

Section 14(a) of the Deeds Registries Act [Chapter 20:05] states that “the ownership of land maybe conveyed from one person to another only by means of a deed of transfer executed or attested by a Registrar.”

This is what transpired in this instance when ownership passed to Gatsikanayi Enock Nyamupanda, and, later, to the applicant in that order. As owner, the applicant is entitled to claim the property from anyone who is in occupation.

Indeed, as noted in Chetty v Naidoo 1974 (3) SA 13 A:

“There can be no doubt that one of the incidents is the right of the exclusive possession of the res with the necessary corollary that the owner may claim his property wherever and from whosoever is holding it. It is inherent in the nature of ownership that possession of the res would usually be with the owner; it follows that no other person may withhold it.”

The respondent's defence to the application was bound to be affected by the decision in Lizzy Chipendo v Tinashe Muchivete Zenda & Ors HC2655/09.

In that case, the applicant, who is the present respondent, was seeking condonation for the late filing of an application for review in HC2575/09.

After the ruling in HC2655/09 in which I dismissed the respondent's application for condonation for the late filing of HC2575/09, counsel for the applicant inquired on whether the respondent was still intent on opposing the applicant's application in HC2220/09 and HC868/09.

Counsel for the respondent indicated that in view of the ruling in HC2655/09 she was no longer opposing the relief sought by the applicant in HC2220/09. She however expressed reservations about the relief in HC868/09 which is an application for contempt of court.

I did not hear the applicant's counsel to insist with that particular relief.

It was conceded that essentially what the applicant was seeking in both HC868/09 and HC2220/09 was the eviction of the respondent from the premises in question. In HC2220/09 the respondent was cited by her preferred name, and there is no doubt as to who the order affects, thus it may not be necessary to proceed to HC868/09.

Should she defy the order in HC2220/09 then contempt proceedings may be brought against her. This time she would have no excuse that the court order was not in her name.

In the circumstances, the application in HC2220/09 is granted in terms of the draft order, that is:

It is hereby ordered that:-

1. The respondent, her guests, invitees, and all those claiming through her, shall, within 48 (forty eighty) hours of the granting of the order vacate the premises known as Number 2 Umguza Close, Wilmington Park, Harare failing which the Deputy Sheriff is hereby empowered to evict them.

2. In the event that the respondent notes an appeal against this order, such appeal shall not have the effect of suspending the execution of this order.

3. There is no order as to costs.

HH164-09 : ZIMRE PROPERTY INVESTMENT (PVT) LTD vs CITY CALVARY CHURCH
Ruled By: GOWORA J

I cannot, however, order the arrest of any party barring the applicant from effecting the renovations. In the amended order now being sought by the applicant, it is required that any person, or persons, inhibiting the applicant from effecting the renovations as ordered in this matter be arrested. An arrest for failure to comply with a court order ...

Appealed
SC08-14 : SIMBA MUKAMBIRWA and OTHERS vs THE GOSPEL OF GOD CHURCH INTERNATIONAL 1932
Ruled By: GARWE JA, GOWORA JA and OMERJEE AJA

The respondent in this case, the Gospel of God Church International 1932 (hereinafter referred to as “the Church”) was founded by one Johane Marange in 1932.

Since it was founded, the Church has spread to a large portion of the continent. Its headquarters are located in Zimbabwe. The founder is buried at Marange, wherein a shrine in his memory has been established.

The Church has also, over the years, acquired considerable assets, both movable and immovable. The very existence of the shrine, and the assets, has produced strife between the followers of the Church which has seen countless disputes between competing factions and interests being filed for adjudication by these courts.

The present appeal is concerned with a dispute surrounding regalia associated with the Church as well as other property belonging to the Church, and who should legally possess such items.

The background to this appeal is as follows:

On 8 September 2009, the Church, under Case No. HC4101/09, filed a court application for certain relief, the particulars of which do not appear from the record.

The appellants, to whom the application was addressed, then filed a notice of opposition to which an opposing affidavit was attached.

Incorporated in the notice of opposition was a counter-application, and, notwithstanding the absence of a formal application for a counter application, in the opposing affidavit, the appellants made reference to such counter application and attached a draft order to the opposing affidavit.

The Church, for reasons that are not germane to the resolution of this dispute, did not file an answering affidavit.

Sometime in October 2009, officers of the Church discovered that the “counter application” referred to in the opposing affidavit filed under Case No. HC4010/09 had been granted by the High Court on 28 October 2009 in Motion Court.

It is common cause that the Church had not been served with a notice of set down.

As a consequence, the Church, under Case No. HC5403/09 filed a court application for the rescission of the default judgment in question.

The High Court ordered that the default judgment granted on 28 October 2009, under Case No. HC4101/09, be set aside.

Following upon the default judgment under Case No. HC4101/09, which was concerned with relief under the counter-application, the appellants sought compliance with the order from the Church and those of its members whom they considered to be bound by the order.

The Church, however, did not comply with the default order and chose, instead, to have the judgment rescinded resulting in the appellants instituting an application for contempt under Case No. HC976/10.

Even though the order under the counter application had been obtained against the Church only, the appellants, under Case No. HC No.976/10 sought an order of contempt against the Church, Zebron Pedzisai Nengomasha, Era Tapera, Jacob Machiha, Sara Muungani, Sesi Catherine, and Masawi Mhizha.

The order also sought for the committal of the named respondents to prison for contempt.

SC55-13 : FREDRICK CHARLES MUTANDA vs THE STATE and KUDAKWASHE JARABINI
Ruled By: MALABA DCJ, GARWE JA and GOWORA JA

This is an appeal against the judgment of the High Court by which an application for review against the decision of the Magistrate's Court was dismissed and an order made that the judgment be referred to the Attorney General, Judicial Service Commission (JSC) and the Secretary of the Law Society of Zimbabwe. At the hearing ...

HH30-13 : BRIAN MUNEKA and DADIRAI RWANZA and JANIES TIMOTHY and EDMOND MULEYA and MUSEKIWA MUZANENHAMO and TSITSI DHLIWAYO vs MANICA BUS COMPANY
Ruled By: MTSHIYA J

Furthermore, before writing this judgment, the parties confirmed to me that the second, fourth, fifth and sixth applicants had since settled the matter with the respondent. That means the respondent still has to comply with the award in respect of the first and third applicants only. As already indicated, the third applicant is not properly ...

HH354-13 : STANBIC NOMINEES PRIVATE LIMITED and STANBIC BANK ZIMBABWE LIMITED vs REMO INVESTMENT BROKERS (PRIVATE) LIMITED
Ruled By: MTSHIYA J

In Dynamos Football Club (Pvt) Ltd and Anor v ZIFA Ors 2006 (1) ZLR 346 (S) it was stated:- “….,. It is trite that an order requiring the performance of acts which may be prejudicial to the interests of a person should not be made by a court of law when he is ...

HB39-13 : KARREN DUBE vs LUPANE STATE UNIVERSITY and MCLEAN BHALA
Ruled By: CHEDA AJ

The Acting Deans concerned were not cited in these papers, and it would therefore not be proper to make an order that adversely affects them when they have not been cited.

HH25-14 : STEVEN VHAVHA vs MSIZI DUBE and THE DIRECTOR OF HOUSING, CHITUNGWIZA and MUNICIPALITY OF CHITUNGWIZA and NANCY KUTYAURIPO
Ruled By: CHITAKUNYE J

As regards whether the order in HC6685/08 affected the plaintiff's rights and interests in Stand 8237 Unit K, Chitungwiza - that goes without saying. His rights and interests were ceded to the first defendant without his consent or even knowledge. I am of the view that the plaintiff is entitled to have his rights and ...

HH186-14 : AFRICAN BANKING CORPORATION OF ZIMBABWE LIMITED vs DYNAMIC SUCCESS (PVT) LTD and DORCAS MARY MUDENDA
Ruled By: MTSHIYA J

In this application, the applicant seeks the following relief:- “IT IS ORDERED THAT:- 1. It is ordered that Respondent pays the sum of US$154,922=07 plus interest on this sum at the rate of 50% per annum from 1st January 2012 to the date of payment in full; 2. Respondent pays the costs incurred in Case No.137/12 as ordered by the ...

In this application, the applicant seeks the following relief:-

“IT IS ORDERED THAT:-

1. It is ordered that Respondent pays the sum of US$154,922=07 plus interest on this sum at the rate of 50% per annum from 1^st January 2012 to the date of payment in full;

2. Respondent pays the costs incurred in Case No.137/12 as ordered by the High Court and collection commission thereupon calculated in terms of the Law Society of Zimbabwe by-laws;

3. Respondent shall pay costs of this application on a scale of legal practitioner and client.”

It is common cause that:

(a) On 1 August 2011, a company known as Sunjet Development Holdings (Pvt) Ltd (Sunjet) agreed that it owed the applicant a sum of US$145,138= being loan proceeds.

(b) On 11 August 2011, the 1^st respondent, as a surety and co-principal debtor guaranteed payment of the amount referred to in (a) above. The surety was executed by the second respondent; and

(c) On 25 October 2012, under case number HC137/12, the applicant obtained the following judgment against Sunjet Development Holdings (Pvt) Ltd:-

“IT IS ORDERED THAT:

1. Defendant pays the sum of US$154,922=07 plus interest thereupon at the rate of 50% per annum from 1^st January 2012 to date of payment in full.

2. Defendant pays the costs of this application and of the main suit on a scale of legal practitioner and client and collection commission calculated in terms of the Law Society of Zimbabwe By-Laws.”

It is on the basis of the above order that the applicant, in its supporting affidavit of 10 January 2013, states as follows:-

“8. Consequently, First and Second Respondents are now obliged to make the payment of the amount disclosed in Annexure D. In spite of promises by Sunjet Development Holdings (Pvt) Ltd to make payment, it has not in fact done so.

9. In the result, Applicant prays for judgement in the following terms:

That First and Second Respondents, jointly and severally, the one paying the other to be absolved, pay the said sum of US$154,922=07 plus interest on this sum at the rate of 50% per annum from 1^st January 2012 to the date of payment in full together with costs and collection commission in terms of the High Court judgement Annexure 'D' plus further costs arising from this application on a scale of legal practitioner and client scale and in terms of the draft attached hereto.”

The application is opposed mainly on the basis that there is no founding affidavit, there is a misjoinder of the second respondent and because, as the respondents, state:-

“4.5 AD PARAGRAPHS 8-9

The failure by the principal debtor to make payments in terms of the order obtained by the Applicant does not itself oblige the 1^st Respondent to be liable to pay the amount reflected on the Order, more particularly in that;

(a) When Annexure “D” was obtained, the Respondents in this matter were never a party to the said. Had they been a party, maybe the court would have reached a different outcome. By requiring the Respondents to fulfill and satisfy an order they were not a party to is a clear disregard of the natural principle of the audi alteram partem rule.

(b) The Applicant is simply trying to join parties to an order which they never participated in litigation and its outcome thereof.”

I agree with the above position taken by the respondents. My view is that on the basis of (a) and (b) above, this application cannot succeed.

HH56-15 : ESTATE LATE FIDELIS CHIWEDZA and OSBURGA NDHLOVU (Executrix Dative) vs LUISA GOMBARUME and POLKA EXECUTOR SERVICES and AFRICA REAL ESTATE and MAKUNIKE & PARTNERS and OTHERS
Ruled By: UCHENA J

A court cannot grant orders against a party who has not been cited and given an opportunity to defend himself.

Appealed
SC34-19 : NJZ RESOURCES (HK) LIMITED vs ANDREW ZINYEMBA AND 18 OTHERS
Ruled By: GWAUNZA DCJ, MAKARAU JA and BHUNU JA

In any case, the appellant's property cannot be declared executable in circumstances where it was not a party to the legal proceedings.

Appealed
SC43-19 : AFRASIA BANK ZIMBABWE LIMITED (IN LIQUDATION) vs THE RIGHT INVESTMENTS (PVT) LTD and OPIUM INVESTMENTS (PVT) LTD and PHILLIPA COUMBIS
Ruled By: GWAUNZA JA, GARWE JA and MAVANGIRA JA

Clearly, the appellant could not have properly moved for an amendment to its pleadings, nor to the relevant loan and security guarantees, without the joinder of Stir Crazy Investments (Pvt) Ltd to the proceedings a quo. There is no doubt that the company had substantial interest in the subject matter of the dispute and was therefore entitled ...

SC48-19 : JACOB BETHEL CORPORATION vs EMMANUEL CHIKUYA
Ruled By: MAKARAU JA, GOWORA JA and BERE JA

In making the order that it did in the circumstances of the matter, the court a quo had this to say: “The judgment by my sister CHIVIZHE J is not binding on me. My decision of 4 July 2014 is extant. It was not successfully appealed against. It is the basis for this quantification.”…,. An analysis of the ...

Appealed
SC28-18 : NYAKUTOMBWA MUGABE LEGAL COUNSEL vs GETRUDE MUTASA and DIDYMUS MUTASA and SHERIFF OF ZIMBABWE
Ruled By: GARWE JA, MAKARAU JA and GUVAVA JA

This is an appeal against the judgment of the High Court of Zimbabwe ordering the return of all the goods belonging to the first and second respondents attached pursuant to a default judgment granted earlier by the same court against the second respondent.

The judgment appealed against also ordered that the returned goods remain under judicial attachment until the finalisation of the proceedings between the parties.

The facts of this matter are common cause. I summarise them hereunder.

The appellant rendered legal services to the second respondent and others which services were not paid for. The appellant sued for the unpaid fees in the High Court and was granted a default judgement against the second respondent. To satisfy the judgment, the third respondent attached certain goods and chattels at the residence of the first and second respondents, which is their matrimonial residence. The attached goods were removed.

The second respondent approached the High Court seeking an order staying the execution process that was underway. That court, being of the opinion that the application to stay execution had been brought after the event, the goods having been removed, declined to hear the application and accordingly dismissed it on the turn without going into the merits of the matter.

The first respondent approached the court a quo, on a certificate of urgency, seeking an order returning all the attached property that had been removed by the third respondent. The court a quo granted the application as prayed, prompting the appellant to note this appeal.

In attacking the decision of the court a quo, the appellant raised four grounds of appeal as follows:

1....,.

2. The court a quo erred at law in dismissing the preliminary point that the interim relief sought was res judicata and failing to find that the first respondent was the privy of the second respondent;...,.

In the second ground of appeal, the appellant alleges that the court a quo erred at law in dismissing the preliminary point that the interim relief sought was res judicata and in failing to find that the first respondent was the privy of the second respondent.

In dismissing the point in limine, the court a quo found that the applicant before it was different from the applicant in the earlier proceedings. The court a quo did not avert to the issue whether or not the first respondent is a privy of the second respondent, a contention which the appellant invites us to accept.

It is trite that a judgement, unless in rem, binds only the parties to the suit to which it relates. It cannot bind third parties even though the action concerns the same subject matter and is based on the same cause of action.

The appellant has sought to have the first respondent bound by the dismissal of the first application by alleging that, in the earlier application, she was the privy of the second respondent. This is so because a privy to a party in legal proceedings is bound by the outcome of such litigation even if they do not participate in the actual proceedings by virtue of their relationship at law to the participating party.

Becks Theory and Principles of Pleading in Civil Action, 5th ED…, state:

“Persons are privy to parties when they claim or derive title or interest through or by parties…,.”

I cannot agree with the contention by the appellant that the first respondent was the privy of the second respondent in the earlier application before the court a quo. The first respondent is not asserting a right to the property that is derived from the second respondent. She is asserting an independent right to the property in her individual capacity. Whilst accepting that the property attached is joint matrimonial property, she avers that she has directly and indirectly contributed to the acquisition of the assets, which averment, in my view, amounts to averring ownership of the assets either outrightly or jointly with the second respondent.

There is no privity between co-owners of an estate simply because they jointly own a common asset.

It is therefore my finding that the first respondent was not the privy of the second respondent and is therefore not bound by the decision against the second respondent.

On the basis of the above, the second ground of appeal is dismissed.

HB46-14 : TOPPERS UNIFORMS PL vs HYDE PARK INVESTMENTS PL and TOTALLY UNIFORMS PL and AHMED ESAT and NKANI KHOZA and ZULEKA ESAT
Ruled By: MUTEMA J

The first respondent owns a building formerly known as Toppers Building, situate at corner Fort Street and 13th Avenue, Bulawayo [the premises].

The applicant leased the premises for several years carrying on the business of manufacturing and retailing school uniforms and other items of school wear. During that period, the applicant was wholly owned by the directors of the first respondent.

In about 2007, the then directors of the applicant sold their entire shareholding in the applicant to the applicant's current directors, viz Mohamed Zakariya Patel and Daud Isa Patel. The business was sold as a going concern.

The parties also concluded a restraint of trade agreement wherein it was agreed that the former shareholders would, for a period of five years, not engage in any school uniform manufacture and retail in competition with the applicant.

The applicant continued trading from the premises under a five year lease agreement.

Subsequently, the parties got embroiled in several acrimonious legal battles whose culmination was the conclusion of an out of court settlement on 30 October 2012 which was imbued with a Magistrates' Court order – annexure “B”.

Pursuant to paragraph 1 of the consent order, the applicant vacated the premises on 31 January 2014 and handed over the premises to the first respondent.

Upon retaking possession of the premises, the first respondent immediately put on display in the shop windows various types of uniforms for different schools in alleged direct contravention of the terms of paragraph 5 of the consent order, annexure “B”.

That paragraph 5 reads as follows:

“5. The plaintiff [1st respondent herein] shall not, directly or indirectly, after 31st January 2014, and on the entire property described in paragraph 1 above, sew and/or sell school wear and/or raw materials thereof or school related products for a period of 5 years from 31 January 2014….,.”

Alarmed by this development, the applicant's legal practitioners wrote a letter to the first respondent protesting at the unlawfulness of its actions and demanding that it removes the displayed uniforms from the shop windows.

This letter was responded to by the fourth respondent, on behalf of the first respondent, on 6 February 2014 stating, inter alia, that, they were only displaying the uniforms and not selling them so therefore there was no contravention of paragraph 5 of the consent order.

The applicant, however, contends that the real reason for displaying the uniforms is that across the road from the premises there is a shop called Totally Uniforms owned by the second respondent which is conducting the business of retailing school uniforms.

The second respondent is wholly owned by the directors of the first respondent.

What happens is that if a customer enters the premises enquiring about the displayed uniforms, the first respondent's staff refers the customer to Totally Uniforms across the road to buy. This, according to the applicant, amounts to the first respondent directly and indirectly manufacturing and selling school uniforms in breach of paragraph 5 of annexure “B”.

Further, the applicant contends, the premises are well known and generally associated with the manufacture and sale of school uniforms of virtually all schools in Bulawayo and the Matabeleland region if not throughout the country. The mention of the name Toppers is naturally linked to the premises. The name Totally Uniforms is displayed boldly and prominently in red on the second respondent's premises. The name somewhat resembles the applicant's trading name, Toppers Uniforms.

What the respondents are doing is all intended to hoodwink the school uniform buying public into thinking that the applicant is still operating from the premises and that the second respondent is somehow associated with the applicant – some form of passing off.

The foregoing is the reason why the applicant filed the urgent chamber application whose interim relief sought is:

“Pending the finalization of this matter, applicant is granted the following interim relief:

1. 1st, 3rd, 4th and 5th respondents be and are hereby ordered and directed to remove all school uniforms and any other type of school wear on display in the shop windows of or anywhere inside the premises formerly known as Toppers Building situated at 129A Fort Street/13th Avenue, Bulawayo.

2. 1st, 2nd, 3rd, 4th and 5th respondents be and are hereby interdicted and prohibited from manufacturing, selling, and advertising for sale in any manner whatsoever including referring customers to 2nd respondent any school wear, raw materials, or any school related products from the aforesaid premises.”

Counsel for the respondents, who said was standing in for Mr Lubimbi who is seized with the matter but is still at the Lupane Magistrates' Court, said his instructions were to raise the point in limine that the matter was not urgent for the following reasons:

The applicant once filed an ex parte application in the Magistrates' Court on 20 May 2012, in case number 2721/12, wherein it was alleged that some of the respondents herein had violated the court order granted by consent (annexure “B”). That application was dismissed on 12 November 2013. Thereafter, the applicant issued summons in the Magistrates' Court, under cover of case number 8616/13, against the first respondent herein raising the same issues. That litigation is still pending and is at plea stage of the pleadings.

In the event, the applicant is precluded from approaching this court three months after the plea was filed alleging that the matter is urgent.

The applicant deliberately omitted to disclose this information in its founding affidavit thereby hiding lack of urgency in the matter by omission.

Also, in paragraph 34 of its founding affidavit, the applicant avers that it has no alternative remedy, yet, the summons alluded to above constitute an alternative remedy.

I must say that the timing of the raising of the point in limine was a poor technique in litigation on the part of counsel for the respondents.

A point in limine must be timeously raised even where no opposing papers have been filed such as in casu. One cannot raise it after the other party had finished making submissions on the merits.

Be that as it may, the point in limine is ill-conceived.

If the ex parte application alleged to have been dismissed was under cover of case number 2721/12, as stated by counsel for the respondents, then, that averment cannot be true because that case number relates to the consent order granted on 30 October 2012 (annexure “B”). That order does not exhibit dismissal of any exparte application.

Over and above that, the parties in that suit were only the first respondent as plaintiff and the applicant as defendant.

Further, the parties in the summons in case number 8616/13 are only the applicant as plaintiff and the first respondent as defendant and the cause of action therein is hinged on alleged contempt of court of the consent order of 30 October 2012 (annexure “B”).

The allegations therein are that the defendant breached the consent order by leasing part of the premises to As Busy As A Bee and Tamara Fashions which entities were into manufacturing of school wear.

That relief, sought against the first respondent only, cannot ground lack of urgency and/or alternative relief against the second – fifth respondents cited in the present application. The respective reliefs being sought in the two instances are totally disparate in nature and the harm alleged in the present application being of a continuing nature; the point in limine has no leg to stand on.

SC40-15 : INDIUM INVESTMENTS (PVT) LTD vs KINGSHAVEN (PVT) LTD and DANIEL SHUMBA and LINDA SHUMBA
Ruled By: CHIDYAUSIKU CJ, GWAUNZA JA, GOWORA JA, HLATSHWAYO JA and MAVANGIRA AJA

In Hundah v Murauro 1993 (2) ZLR 401, the point was made, that, for a party who has a real interest in the matter in dispute before a court to be bound by a judgment of the court, such party should be cited. At p404E-G the court stated:“We have drawn ...

SC46-17 : ANDREW MAGARASADZA and 34 OTHERS vs FREDA REBECCA GOLD MINE HOLDINGS LTD t/a FREDA REBECCA GOLD MINE and ASSOCIATED MINE WORKERS UNION OF ZIMBABWE
Ruled By: MAVANGIRA JA

In chambers in terms of Rule 5 of the Rules of the Supreme Court, 1964.

For the sake of completeness, the following observation is noted:

Despite being served with all the relevant papers, the second respondent did not file any papers in response to this application. It was therefore barred. It also did not attend the hearing in chambers.

Two men, who claimed to be former employees of the first respondent and also to be represented by the second respondent, appeared in chambers and indicated that their attendance was solely for the purpose of listening to the proceedings.

Counsel for the applicants and the first respondent indicated that they had no objection to the presence of the two.

This is a chamber application in which the applicants seek an order in the following terms:

“1. The application for substitution of Respondent in case number SC570/14 be and is hereby granted.

2. That the Applicants substitute the 2nd respondent and be listed in their individual capacity and names as 2nd-35th Respondents and the 2nd Respondent be listed as the 1st Respondent in the appeal under case number SC570/14 in place of 2nd Respondent.

3. That all pleadings, documents and papers under SC570/14 filed with the honourable court, from the date of this order, shall reflect this substitution.

4. That there be no order as to costs.”

BACKGROUND

Part of the background to this matter may conveniently be extracted from the judgement of the Labour Court LC/H/272/2012 which prompted the appeal in SC570/14.

The parties before the Labour Court were Freda Rebecca Mine Holdings Limited as the appellant and Amalgamated Mine Workers Union as the respondent.

What was before the Labour Court, in LC/H/272/2012, was an appeal against an arbitral award, the operative part of which read:-

“The Award

Having carefully considered the evidence, and both oral and written submissions from parties, I hereby declare, that, Respondent indeed made unilateral variation in the new contract of employment.

1. I therefore declare the new contract of employment null and void.

2. As a remedy, I hereby order parties to seriously engage themselves in fresh negotiations before a new contract of employment is introduced at Freda Rebecca Mine.”

The following is stated at pp1-2 of the cyclostyled judgment of the Labour Court:

“The material background facts to the matter are as follows:

The appellant operates a mine known as Freda Rebecca Gold Mine situated in Bindura. The respondent is a Trade Union representing mine workers in Zimbabwe. Sometime in 2009, the appellant introduced a revised contract of employment which was, according to the Appellant, signed by a majority of its employees. There were some employees who refused to sign the revised contracts of employment who were consequently dismissed from employment. These workers challenged the lawfulness of their dismissal through the Labour Official. When the conciliation failed, the matter was referred to an arbitrator and is still pending.

The present matter, however, concerns an unspecified number of employees on whose behalf the Respondent lodged a complaint to the Labour Officer. The matter was referred to the Arbitrator with the term of reference being “whether the Respondent could unilaterally vary the terms of contracts of employment with its employees.” The Arbitrator handed down an award in the terms as referred to supra. Dissatisfied with the award, the Appellant then lodged the present appeal.”…,.

The Labour Court struck the appeal off the roll on a technicality.

It opined, that, Freda Rebecca had “thrown itself out of court” by failing to comply with the arbitral award, or, alternatively, failing to apply for the suspension of the operation of the award before instituting the appeal.

Freda Rebecca appealed to the Supreme Court against this decision - Appeal No. SC570/14.

On the date set for its hearing, the said appeal was postponed sine die by the Supreme Court. The postponement was apparently due to issues that arose regarding the citation and/or representation of the parties, which issues were to be sorted out during the period of the postponement. The issues apparently arose due to misunderstandings that developed between the applicants and the second respondent.

The applicants thus instituted the instant application with the anticipation that their success in this application will enable their participation, in their individual capacities, in the appeal in SC570/14, which appeal is expected to be re-set down for hearing after the determination of this application.

SUBMISSIONS IN CHAMBERS BY THE APPLICANTS

Counsel for the applicants moved for the granting of the order sought on a number of bases:

He submitted, that, the applicants are the individuals whose contracts were summarily varied and that it is these same contracts that have been the subject matter of the dispute since 2012. He submitted, that, contrary to what the first respondent contended in its opposing papers, this is not an application for joinder but one for substitution of the second respondent by the applicants. He further submitted, that, whilst the workers' committee has no legal persona and therefore cannot represent workers, a trade union can do so as it has statutory ability to represent workers. He also submitted, that, in any event, as the appeal by the first respondent in SC570/14 deals with a procedural and not a substantive issue, there could be no prejudice to the respondents.

Counsel for the applicants went on to submit, that, in any event, if the applicants are successful in SC570/14, the matter will be remitted to the Labour Court where the first respondent can make another complaint about or raise the issue of the representation of the parties, if they so wish.

Furthermore, that the cause of action or justification for this application was the fact, that, the relationship between the applicants and the second respondent had become discordant.

He submitted, that, the applicants' position is that if there are other employees (former employees) who want to continue to be represented by the second respondent they may continue to be so represented, but they (the 34) now want to ventilate their cause without the second respondent.

It was also counsel for the applicant's submission, that, the second respondent has always acted in a representative capacity and did not at any time supplicate for its own rights. There has thus never been any confusion as to who the parties were.

He submitted that section 29(4)(d) of the Labour Act put to rest the question whether or not the applicants (and others) in their collective complaint, could be represented by the second respondent.

Counsel for the applicants also submitted, that, the application is not one for joinder as it does not seek the joining of a party who was not a party before. It is rather the “unpacking” of the real respondents in that matter that is sought.

There has not been any dispute, he submitted, that these 34 applicants had their contracts unilaterally varied or that they are former employees of the first respondent. They cannot, therefore, be said not to have sufficient interest in the matter.

The applicants want the opportunity to respond to the first respondent's appeal in which it is appealing against the striking off of their appeal in the Labour Court.

In the applicants' view, the first respondent has adopted the wrong procedure by appealing against the striking off of their appeal by the Labour Court.

It was also his further submission, that, the applicants want to be substituted because they were already part of the proceedings but they now want to extricate themselves from the one who was representing them.

The substitution, he submitted, is in terms of the common law, and, section 85 of the High Court Rules, referred to by the respondent, does not and cannot apply. He cited Zimbank Ltd & Anor v Consolidated Piping & Fitting 2000 (1) ZLR 672…, as the guideline in the determination of this application.

RESPONDENT'S SUBMISSIONS

In response, counsel for the first respondent made submissions to the following effect:

From an examination of the draft order sought, it is clear, that, what is being sought is not substitution but joinder. The High Court Rules relating to substitution must therefore come into play as the Supreme Court Rules do not provide for such an application.

Rules 85 and 85A of the High Court Rules ought to apply to the instant application.

An examination of the stated Rules will show, that, the application is defective as the order sought does not provide for the removal of a party and the replacement thereof with another, but, instead, seeks joinder of the applicants to the parties already cited in SC570/14.

The application is vague and embarrassing and bad at law and ought to be dismissed. The case of Trop v SA Bank 1992 (3) SA 208…, was cited in support of the submission.

It was also submitted, that, in terms of sections 29 and 30 of the Labour Act, a trade union has the ability and capacity to represent its members in legal proceedings.

However, that must be distinguished from being a party to the proceedings. The sections do not provide that a trade union becomes party in proceedings in which they represent their members.

In addition, the parties who appeared before the Labour Officer for conciliation are the same parties cited in SC570/14 and the applicants were not cited as parties thereto.

It was also submitted, that, as the applicants were not parties in pertinent proceedings before the Labour Officer, the arbitrator, the Labour Court, and, finally, the Supreme Court where an appeal is pending, it does not make sense for them to now, at this stage, seek to be made parties to the litigation.

Counsel for the first respondent further highlighted, that, when the first respondent raised the issue of the second respondent's locus standi before the arbitrator no action was taken to have the applicants joined at that stage, yet, the applicants now want to be parties to an appeal whose origin was birthed in those proceedings.

Neither the arbitrator's award nor the Labour Court judgement cite or speak of the applicants.

He submitted, that, the law does not countenance this as this would be tantamount to allowing them to enter the proceedings through the back door.

Counsel for the first respondent quoted remarks, though obiter, made in TelOne (Pvt) Ltd Communications & Allied Services Workers Union 2006 (2) ZLR 136…, where CHIDYAUSIKU CJ stated:

“…,. Mr Hwacha's contention is that a party that was not privy to the original proceedings cannot apply for the review of such proceedings. I recognise the cogency of this submission. The proposition that only parties to the proceedings can challenge, on review or appeal, the outcome of such proceedings admits of little doubt.”

He submitted, that, applied in reverse, quoted remarks buttress his argument.

He described the applicants' quest as an “ambush” of the point of law that had been raised by the first respondent in the earlier proceedings. He prayed for the dismissal of the application.

WHAT IS THE NATURE OF THIS APPLICATION?

The applicants have labelled it an application for substitution. The respondents, on the other hand, argue, that, it is in effect an application for joinder.

The Concise Oxford English Dictionary of Current English 7ed, 1982 provides the following, amongst others, definition for the word 'substitute':

“(person or thing) acting in place of another; make (person or thing) fill a place or discharge a function for or for another; put in exchange (for).”

For 'joinder' it provides:

“joining, union.”

The import of paragraph 2 of the order sought is, that, while the second respondent remains, as is the case already, a respondent in SC570/14, the applicants are also made additional respondents.

The effect of the order, if granted, would be to alter the numbering order, with the previously lone respondent becoming the first respondent while the applicants become the second to the 35th respondents.

Thus, the applicants do not seek to substitute the second respondent. Rather, they wish to be added as co-respondents. There is no removal of one party and replacement with another, as should happen in a substitution.

On the face of it, this is a clear case in which joinder, and not substitution, is being sought.

On the other hand, counsel for the applicants repeated and categorical submission, in which he maintained that the relief sought by the applicants in not joinder but substitution, is contradictory of the terms of the order that is being sought before me.

For that reason, the applicants' papers do not seek to meet the requirements of an application for joinder and they do not do so. In the same breath, the effect of the terms of the order sought is in effect a joinder and not substitution.

In these circumstances, the aptness of counsel for the first respondent's citation of the case of Trope & Ors v The South African Reserve Bank 1992 (3) SA 208…, becomes self-evident. Importantly, the Appeal Court quoted with approval the lower court's statement that:

“And, if the pleadings lack sufficient clarity to enable the defendant to determine those facts and hence the case he has to meet, the pleadings are vague and embarrassing.”

Counsel for the first respondent's submission, that, at the arbitration proceedings, the first respondent raised the issue of the second respondent's locus standi but no action was taken then to have the applicants joined at that stage, was not disputed by counsel for the applicants.

Counsel for the applicants submission, in response, was merely, that, the applicants were only praying for an order to be granted in their favour only in relation to the appeal in SC540/14 and not to any other case.

This stance, in my view, tends to lend credence to counsel for the first respondent's argument, that, the applicants seem to want to want to circumvent a legal point earlier raised by seeking to now individually enter the fray at this stage.

This court, not being a court of first instance, is not the proper forum for such an application.

In any event, for reasons discussed above, the applicants seek to participate in the appeal in SC570/14 by way of an application that defies a specific description recognised at law.

The nature of the application before me is unascertainable by reason of the pleadings filed being vague and embarrassing.

THE LAW

The aptness of the case of Tel One (Pvt) Ltd v Communications & Allied Services Workers' Union 2006 (2) ZLR 136 (S)…, also cited by counsel for the first respondent, comes to the fore.

As a party who was not privy to the original proceedings cannot appeal against or challenge, on review, those earlier proceedings, it is only logical that a party who was not privy to the original proceedings cannot become a party to the appeal emanating from those proceedings in the manner sought by the applicants.

In casu, the second respondent substituted itself for the applicants and other employees entirely. It did not cite itself in a representative capacity. There was no reference at all to the applicants and the other employees. This is so despite the fact, that, the rights that may accrue when the fairness or otherwise of their dismissals is finally determined would affect them individually.

The effect of the non-citation or the lack of reference to the applicants is that the award by the arbitrator ordered that there be negotiations between the employer and the Trade Union in circumstances where the contracts to be entered into would be between the employer and the individual employees.

This is an untenable result. I daresay it is an incompetent order.

It is trite, that, for a party who has a real interest in the matter in dispute before a court to be bound by a judgement of the court, such party should be cited: see Indium Investments (Pvt) Ltd v Kingshaven (Pvt) Ltd & Ors SC40-15…,.

It is also trite, that, a judgment may not be made affecting a person or entity that was not a party to the proceedings: see Mashingaidze v Chipunza & Ors HH688-15; Women & Law in Southern Africa Research & Education Trust v Shongwe & Others HH202-03.

The application in casu is bad at law. It is vague and embarrassing.

In addition, on the facts of this matter, whether it be an application for substitution or for joinder, this court is not the proper forum before which to make it. It cannot therefore succeed.

It is accordingly ordered as follows:-

“The application is dismissed with costs.”

HH234-10 : RODGERS MADANGURE vs SHATO LUFEYI and DAYNDALE ENTERPRISES (PRIVATE) LIMITED and MUGEJO MAKONI
Ruled By: GOWORA J

The first and third respondents are business partners. Some time ago, the date has not been specified, the two agreed to enter into a joint venture involving gold mining in the country. The first respondent, a foreign national, then joined forces with the third respondent, and others, culminating in the formation of the second respondent and its subsequent incorporation as a limited liability company. There is some dispute as to whether or not the third respondent is a Director in the second respondent, but, in my view, that dispute is not pertinent for the resolution of this application. At any rate, the first respondent is a Director in second respondent.

In his founding affidavit, the applicant avers that he was, in September 2009, approached by the third respondent who advised him that, he, the third respondent, and his “partners” in the second respondent had purchased gold claims in Masvingo. The third respondent had revealed that his “partners” had abandoned the venture and that the claims were about to be forfeited due to non-payment for statutory licences to the Ministry of Mines. The applicant avers that he had been advised by the third respondent that the second respondent, the first respondent, and two others, had purchased mining claims from one Elborn Tinago in October 2007 but that the foreign Directors and the first respondent had lost interest in the venture and had consequently pulled out of it. The third respondent advised the applicant that in total only US$15,000= had been invested in the venture by the first respondent and the partners to the venture. The third respondent confirmed his interest within the second respondent by exhibiting share certificates to the applicant which information he verified with the Registrar of Companies. The applicant, thereafter, visited the site and ascertained that there was no activity. He then entered into an agreement with the third respondent which resulted in him purchasing the latter's shareholding in the second respondent on 7 September 2009. The 500,000 shares which the third respondent held in second respondent were then transferred to the applicant. Because there was an imminent threat of forfeiture the applicant paid the fees for the licences with the Ministry of Mines. Thereafter, the applicant proceeded to pay out monies for the development of the site, purchasing equipment and ensuring that environmental impact reports were done. He also engaged forty locals to work at the site.

On 5 May 2010, the second respondent was, under case number HC2813/10 granted a provisional order by PATEL J. The interim relief granted by his Lordship was in the following terms-

“Pending determination of this matter, the applicant is granted the following relief:

1. That upon service of this order the respondent and anyone claiming occupation through him be and is hereby interdicted from mining, milling of gold ore, or from being within 5,500 metres of the Gold Reef claims known as 20, 21 and 6 being claim numbers 7651, 8804 and 8817 situate at Avonmore Farm near Masvingo town.

2. That the respondent and anyone claiming occupation through him be and are hereby interdicted upon service of this order from removing the electric transformer, building materials, the bore mill and any material currently being utilized at the aforesaid claims until the determination of the court application lodged with this Honourable court in case number HC2814/10.

3. That in the event that the respondent disobeys this order the officer in charge ZRP Masvingo Central Station be and is hereby directed with the powers bestowed upon the police to stop disobedience of this order and to arrest any culprit for contempt of court.”

The third respondent herein was the only respondent cited under that case number, the applicant was not a party.

The applicant, then, in turn under case number HC3604/10 approached the court, again on a certificate of urgency, citing the second and third respondents herein as parties thereto.

This application was for directions in respect of an application for joinder filed by the applicant under case number HC3603/10. The terms of the interim relief granted to the applicant are as follows:

“2) Pending the finalization of this matter, application is granted to the following interim relief:

(a) The court application for joinder filed under HC3603/10 be and is hereby allowed to be heard urgently with the parties being directed as follows:

(i) The respondents are to file their opposing papers three (3) working days after being served with the application.

(ii) The applicant be and is directed to file his answering affidavits, if any, within two (2) working days after service upon his legal practitioners of the respondent's Notice of Opposition.

(iii) The applicant be and is hereby directed to file his Heads of Argument within three (3) working days after filing the answering affidavit, if any, is to be filed or alternatively within five (5) days after receiving the notice of opposition.

(iv) The respondents be and are hereby directed to file their heads of arguments within two (2) working days after receipt of the applicants heads of arguments.

(v) The Registrar of the High Court is to set the matter down before the duty Judge within five (5) working days from the date of filing of heads of arguments for the respondents absence of which within five (5) days of filing of the applicant's heads of arguments.

(b) The provisional order granted under HC2813/10 be and is hereby deemed to be in operational against the applicant and or his agents, employees or assignees pending the finalization of the urgent chamber application.”

The applicant avers, in his founding affidavit, that the provisional order of 5 May 2010 did not bestow any rights of occupation on the first and second respondents but that it simply interdicted mining operations by the third respondent and all those claiming occupation through him. The applicant averred, further, that in terms of the provisional order that he sought and obtained on 1 June 2010 the status quo ante was restored between them meaning that whilst the third respondent could not carry out any mining operations at the site, he, the applicant, could, in terms of the provisional order of 1 June 2010, in particular the paragraph reading as follows: “that the provisional order granted under Case No HC2813/10 be and is hereby deemed to be in operational against the applicant or his agents, employees or assignees pending the finalization of the urgent chamber application.”

The applicant has now approached this court seeking an order for restoration of peaceful and undisturbed possession of the Gold Reef claims, a temporary interdict against interference in mining operations by the first and second respondents, an order that they keep the peace, and an order for their eviction from the premises.

Counsel for the first and second respondents raised two points in limine; firstly that the matter was not urgent and secondly that the application was inappropriate….,.

I turn to the second point raised in limine, that of the propriety of the application.

The applicant accepts, in his founding affidavit, that the initial order by PATEL J under case number HC2813/10 is still extant. That order interdicted the third respondent and anyone claiming through him, from mining, milling of gold ore and further prevented the third respondent and anyone claiming through him from approaching within 500 metres of the claims. The applicant herein was not cited as a party to that dispute but as he claimed occupation through the third respondent the provisional order perforce applied to him.

There is no legal basis upon which he could claim immunity from the operation of the order.

HH237-10 : ISDORE HUSAIHWEVHU and WALTER MUTOWO and FUNGAI ZINYAMA vs UZ – USF COLLABORATIVE RESEARCH PROGRAMME
Ruled By: GOWORA J

It is trite that a judgment or order of a court is binding on the parties thereto unless and until it has been set aside.

HB15-10 : TIMOTHY SIJIYE vs MFANUKHONA PHIRI and DAVID MPOFU and TAKATSO MPOFU
Ruled By: KAMOCHA J

The applicant was not a party to the proceedings relating to the two judgments. He, however, seeks to rely on the provisions of Order 49 Rule 449(1)(a) of the Rules of this court. The second point was that the applicant was not entitled to have recourse to the provisions of Order 49 Rule 449(1)(a) of the ...

The applicant was not a party to the proceedings relating to the two judgments. He, however, seeks to rely on the provisions of Order 49 Rule 449(1)(a) of the Rules of this court.

The second point was that the applicant was not entitled to have recourse to the provisions of Order 49 Rule 449(1)(a) of the Rules of this court which he sought to rely on. The provisions are couched thus-

“449 Correction, Variation and rescission of judgments and orders

(1) The court or judge may, in addition to any other power it or he may have, mero motu or upon the application of any party affected, correct, rescind or vary any judgment or order –

(a) That was erroneously sought or erroneously granted in the absence of any party affected thereby;”

It was contended that the above provisions did not apply to the present case but only to civil trials and judgments obtained following such civil trials, not applications.

I disagree.

The Rule applies to any judgment or order which was erroneously sought or erroneously granted in the absence of any affected party – even in court applications. What is important is that the judgment or order must have been erroneously sought or erroneously granted. Like, for instance, what happened in the case of Matambanadzo v Goven 2004 (1) ZLR 399 (S) where the court granted an eviction order without the pre-requisite certificate in terms of section 30(4) of the Rent Regulations 1982, to the effect that the requirement that the lessee vacate the dwelling was fair and reasonable. The court did not have the power to grant an eviction order unless the Rent Board had issued the requisite certificate and yet it went ahead and erroneously did so in the absence of the affected party. The order was accordingly set aside…,.

But, the final issue to be determined is whether or not the two judgments Timothy Sijiye seeks to have rescinded were erroneously sought or erroneously granted.

I have found that David Mpofu and his wife were properly served in terms of the Rules as the applications were served on responsible people found at the premises. No notice of opposition was filed in respect of each case. The court made no error in granting each of the judgments Timothy Sijiye sought to have rescinded.

His application must, accordingly fail. In the result I would dismiss the application with costs.

HH130-11 : THIRDLINE TRADING (PVT) LTD and ONCLASS INVESTMENTS (PVT) LTD vs BOKA INVESTMENTS (PVT) LTD and TOBACCO INDUSTRY & MARKETING BOARD
Ruled By: UCHENA J

The dispute between the parties first appeared before me as a chamber application for a default judgment. The application was instituted by the first respondent who was then the applicant. The application was against the second respondent and the applicants who were the defendants in the main case. The default judgment was premised on the second respondent ...

The default judgment was premised on the second respondent not having entered appearance to defend.

The application cites the second defendant and the applicants as respondents though the body of the application specifically states that “application for default judgment is hereby made against the first defendant only”. The second respondent is the first defendant in the main action. The applicants, who are the second and third defendants in the main action, had entered appearance to defend.

The default judgment was granted on the following terms:

“The first defendant is hereby barred, restrained and interdicted from issuing to either the second defendant or the third defendant or both the second and third defendants a tobacco auction floor licence issued in terms of section 44 of the Tobacco Marketing and Levy Act [Cap 18:12], in respect of premises known as the Boka Tobacco Auction Floors situate on the 13 kilometer peg along Simon Mazorodze Road Harare.”

The applicants have, after initially asking the court to rescind the default judgment through correspondence, which was vigorously opposed by the first respondent, now filed a chamber application, for the rescission of the default judgment in terms of Rule 449(1)a) of the High Court Rules. It was submitted on their behalf that the default judgment was erroneously granted in the absence of interested parties. Rule 449 provides as follows:

“(1) The court or a judge may, in addition to any other power it or he may have, mero motu or upon the application of any party affected, correct, rescind, or vary any judgment or order —

(a) That was erroneously sought or erroneously granted in the absence of any party affected thereby; or

(b) In which there is an ambiguity or a patent error or omission, but only to the extent of such ambiguity, error or omission; or

(2) The court or a judge shall not make any order correcting, rescinding or varying a judgment or order unless satisfied that all parties whose interests may be affected have had notice of the order proposed.”

Counsel for the applicants filed heads of arguments in which he submitted that the applicants were not given notice of the application for default judgment, and that the default judgment was therefore granted in the absence of interested parties. He submitted that the applicants are interested parties because the order sought and granted directly affect them.

Counsel for the respondents filed heads of arguments in which he argued that there is no rule which obliges an applicant for a default judgment against a co-defendant who will not have entered appearance to defend, to serve co-defendants who will have entered appearance to defend.

The first issue is, therefore, whether or not, I should have directed that they be served as the order sought and granted, was intended to and affects them directly. It effectively takes from them that which they had entered appearance to defend.

The second issue is whether or not the default judgment was erroneously sought and erroneously granted and can be rescinded in terms of Rule 449(1)(a).

View Appeal
HH145-17 : GERTRUDE MUTASA and DIDYMUS MUTASA vs NYAKUTOMBWA & MUGABE LEGAL COUNSEL and SHERIFF OF THE HIGH COURT
Ruled By: TSANGA J

The first and second applicants, the Mutasas, are husband and wife. Before me, they seek a stay of execution and return of removed goods pursuant to a default judgement in a matter relating to unpaid legal fees for services purportedly rendered by the first respondent, Nyakutombwa & Mugabe legal counsel, a firm of lawyers. The lawyers purport to have provided legal services to Mr Mutasa and two of his political colleagues which services have not been paid for jointly and severally.

Although a notice to defend was actioned in the matter on behalf of Mr Mutasa and filed with the court, it was never received by the firm of lawyers as it contained an incorrect reference number. Two last digits from a number which had been hand written on the summons had been inadvertently included to the correct reference number. Suffice it to state that as a result of this error, a default judgment was granted for failure to defend and household goods and two motor vehicles were taken away after a writ of execution and notice of removal had been duly served.

The Sheriff herein is cited as the second respondent in his official capacity and will abide by any decision of this court in the matter.

Mr Mutasa filed an urgent chamber application to try and stay removal, but, by date of its hearing, on the 16th of February 2017, it was common cause that the goods had already been removed the previous day. Since as the 'horse had bolted,' the application to stay removal was deemed to be too late for hearing by the judge upon whom the urgent matter had been placed given that at the core of its urgency had been to stay removal, which eventuality had already ensued. The parties were agreed that indeed the 'horse had already bolted' at the time the court was being asked to intervene. However, it is not in dispute that the matter was not heard on its merits and that Mr Mutasa, at the time, was urged to seek another suitable recourse to his plight.

His wife then brought this application, as first applicant, together with Mr Mutasa, as second applicant, on account that the goods had been removed pursuant to a judgment which affected their interest, and yet, as interested parties, they had not been aware of the judgement until the time of execution. They also argue that the goods removed far exceed the amount allegedly owed. Mr Mutasa disputes that services were rendered by the firm of lawyers.

The firm of lawyers, as the first respondent, resist the present application...,.

With households good having been attached, after a marriage of some 47 years, it cannot be disputed that Mrs Mutasa would have a grave interest in a matter that removes the household goods without her having been a party to that matter.

Counsel for the applicants said that an interpleader has been filed but that this application was also being brought on account of her being an interested party...,.

As regards Mrs Mutasa, whilst not a very interested party so to speak, has a standing to challenge a default judgment; prospects, nonetheless, seem likely given that part of the property taken is in the form of household goods which belong to the spouses. As a spouse, the first applicant is in privity to the second applicant against whom the default judgment was made that resulted in the removal of the matrimonial property.

Needless to say the burden of proof that she is indeed an interested party with respect to the judgment will be on Mrs Mutasa.

CC02-20 : JOSEPH CHANI vs JUSTICE HLEKANI MWAYERA and MICHAEL MUGABE and MUSUTAMI CHIFAMUNA and NATIONAL PROSECUTING AUTHORITY
Ruled By: MALABA CJ

In Lytton Investments (Pvt) Ltd v Standard Chartered Bank Zimbabwe Ltd and Anor CC11-18…, the Court said:“A decision of the Supreme Court on any non-constitutional matter in an appeal is final and binding on the parties and all courts except the Supreme Court itself. No court has power to alter ...

View Appeal
HH220-11 : THE GOSPEL OF GOD CHURCH INTERNATIONAL 1932 vs SIMBA MUKAMBIRWA and OTHERS
Ruled By: MAVANGIRA J

These two matters were heard at the same time for the purposes of convenience.

In the first matter, HC5403/09, the applicant seeks rescission of an order issued by this court on 28 October 2009 in HC4101/09.

In the second matter, HC976/10, the applicants seek an order be found to be in contempt of court and for their committal to prison for such contempt.

The first application, being HC5403/09, will be dealt with first.

The parties are the same as in HC4010/09. In HC4010/09 the applicant, the Gospel of God Church International 1932 sought an order in the following terms:

“It is hereby ordered:

1. That the respondent and its followers are interdicted from using the name THE GOSPEL OF GOD CHURCH INTERNATIONAL in any manner and form. (sic)

2. That the respondent and his followers are interdicted from entering Gandanzara Shrine, Rusape in the Manicaland Province.

3. That the respondent and its followers should vacate immediately and forthwith from Number 140 St. Patrick's Road, Hatfield, Harare failure which the Deputy Sheriff is authorized to evict them. (sic)

4. That the operation of this order shall not be suspended from the noting of an appeal by the respondent. (sic)

5. That the respondent pays costs on an attorney and client scale.”

The first respondent therein, Simba Mukambirwa, deposed to an opposing affidavit in which immediately after para 43 thereof, he prays for the dismissal of the application with costs.

Immediately after this prayer, the following heading appears:

“Counter-Application for Peace Order and Interdict”

Paragraph 44 then follows in which the deponent states that he wishes to make a counter application for a peace order and an interdict.

After paragraph 53 appears his prayer for dismissal of the applicant's application and for an order in terms of the draft. The order that he seeks is in the following terms:

“IT IS ORDERED THAT:

1. Respondents be and are hereby declared to have a right to peacefully visit and worship at the shrine.

2. Sister Dazi Dhliwayo be and is hereby declared the lawful President.

3. All church members who recognize Era Tapera as the President, including Zeburon Pedzisai Nengomasha, be and are hereby ordered not to unlawfully prohibit the respondents and other church members from visiting at the shrine.

4. All the applicant's purported office bearers listed in the application be and are hereby ordered to maintain peace towards the respondents.

5. Each party to meet its own costs.”

The respondents thereafter proceeded to cause the counter application to be set down on the unopposed roll on the basis that the applicant had not filed any opposing papers to the counter-application and was therefore barred.

The matter was set down for 28 October 2009, and, on that date, an order was issued by this court as prayed for in the counter application in the terms already quoted immediately above.

It is this order whose rescission the applicant now seeks.

The main contention, on the part of the applicant, is that the default judgment in favour of the respondents was granted in error as the purported counter-application was fatally defective and that this is therefore a proper matter for the court to rescind its order in terms of Rule 449.

It is permissible for a respondent to a court application to file a counter application. This is so because Rule 229(a) provides:

“(1) Where a respondent fills a notice of opposition and opposing affidavit, he may file, together with those documents, a counter-application against the applicant in the form, mutatis mutandis, of a court application or a chamber application, whichever is appropriate.”…,.

Sub rule (2) of the same Rule, further provides:

“(2) This order shall apply, mutatis mutandis, to a counter application under sub rule (1) as though it were a court or a chamber application, as the case may be, and, subject to sub rule (3) and (4), it shall be dealt with at the same time as the principal application unless the court or a judge orders otherwise.”…,.

In terms of sub-rule (1), as quoted above, the counter-application ought to have been made in the form of a court application.

Rule 230 requires a court application to be in Form No.29 which shall be supported by one or more affidavits setting out the facts upon which the applicant relies.

The purported counter application did not meet or satisfy the requirements stipulated by the Rules.

There was no compliance with the Rules.

There was thus no valid counter-application before the court and the order sought in the purported counter application ought not to have been granted.

Had the purported counter application been dealt with at the same time as the principal application, as stipulated in sub-rule (2), this non-compliance with the Rules would, in all probability, have been exposed or bought to the court's attention by the applicant's legal practitioner.

But, as it turned out, the applicants were unaware of the date set for the hearing of the purported counter-application.

For the above reasons, the application for rescission of the order granted on 28 October 2009, in HC4101/09, must succeed.

It is now intended to deal with the application in HC976/10 by the respondents for contempt of court alleged to have arisen from alleged non-compliance with the order of 28 October 2009 in HC4101/09 by the parties cited therein.

In HC4101/09, the main application, the Gospel of God Church International 1932 was the only applicant. It must therefore also follow that it was the only respondent in the purported counter application.

Thus, the parties cited as respondents in HC976/10 were not parties to the proceedings in HC4101/09. As they were not parties to the matter in HC4101/09 there would be no justification for them being cited as respondents in the application for contempt of court.

If there is any justification for so citing them it would still be necessary for them to each be personally served with the order and the application.

SC05-21 : GIFT KONJANA vs DEXTER NDUNA
Ruled By: PATEL JA, BHUNU JA and BERE JA

This appeal emanates from an election petition lodged with the Electoral Court to nullify the election of the respondent and to declare the petitioner (the appellant herein) duly elected as the Member of Parliament for Chegutu West. The disputed election was held on 30 July 2018.BackgroundAfter the relevant election forms ...

Background

After the relevant election forms were collated and compiled, the respondent was declared duly elected by 10,932 votes as opposed to 10,828 votes attributed to the appellant. The appellant asserted that the Zimbabwe Electoral Commission (ZEC) officials made mistakes in capturing data from the ward centres. He lodged a complaint with the ZEC District Elections Officer after the discovery of the mistake which was then admitted by ZEC. Before the Electoral Court, the appellant sought the correction of the erroneous declaration. The respondent took various points in limine.

Judgment of the Electoral Court

The court a quo considered the provisions of the Electoral (Applications, Appeals and Petitions) Rules 1995, S.I.74 of 1995. It found that Rule 21 of the Rules sets out certain peremptory requirements pertaining to the form and content of an election petition. Amongst other things, Rule 21 requires the petitioner to state the grounds of the petition and the exact nature of the relief sought on the face of the petition. The court took the view that Rule 21 is peremptory and must be strictly complied with and that substantial compliance is not acceptable. Consequently, a petition that fails to comply with the form and content as set out in Rule 21 is fatally defective.

In the instant case, the court found that the exact relief sought by the appellant was clear ex facie the petition and that the appellant was entitled to bring the petition in terms of section 167 of the Electoral Act [Chapter 2:13] to rectify the alleged irregularity.

The court further found that the relief seeking the nullification of the declaration by the Zimbabwe Electoral Commission (ZEC) of the appellant as having been duly elected was competent by virtue of section 171 of the Electoral Act. The court accordingly dismissed the points in limine taken by the respondent on these three aspects.

As regards the fourth point in limine, the court reiterated that it was imperative for a petitioner to follow the format prescribed in Rule 21 of the Electoral (Applications, Appeals and Petitions) Rules 1995, S.I.74 of 1995.

In casu, the appellant brought the petition on notice and therefore fell foul of Rule 21 of the Electoral (Applications, Appeals and Petitions) Rules 1995, S.I.74 of 1995.

The form and content of the petition did not comply with Rule 21, rendering it fatally defective. The appellant had failed to present his case in the proper format required by law. There was therefore no valid petition before the court.

In the event, the court could do nothing to salvage the situation, even where the petition might appear to have merit. The court's residual power to condone infractions in electoral matters was curtailed. The petition was accordingly dismissed with costs.

Additionally, the Registrar was directed to serve copies of the order on the Zimbabwe Electoral Commission (ZEC) and the Clerk of Parliament.

Appealed
SC06-21 : OLIVER MASOMERA (as Executor Dative of Estate late Bryan James Rhodes) vs GIDEON HWEMENDE and OTHERS
Ruled By: PATEL JA, BHUNU JA and BERE JA

This is an appeal against the judgment of the High Court dismissing an application for the rescission of an earlier judgment granted in favour of the fourth respondent in Case No. HC1589/13. The application was dismissed with costs to be borne by the estate of the late Brian James Rhodes, ...

Background

Prior to his demise, on 29 July 2006, the deceased, B.J. Rhodes, had established two companies, namely, Beverly East Properties (Pvt) Ltd and Karoi Properties (Pvt) Ltd. The appellant, as I have said, is the executor dative of the deceased estate. He was not a party to the proceedings in Case No. HC1589/13 wherein the court granted a declaratory order in favour of the fourth respondent.

In his application before the court a quo, the appellant sought the rescission of that order on the ground that it had been obtained through fraud, and, alternatively, that it had been granted in error.

In Case No. HC1589/13, the court dismissed the claims over the two companies by the first respondent (Gideon Hwemende), who had purported to appoint the fifth to the tenth respondents (Valentine Mushore, Alfred Chademana, Joel Tenderere, Oliver Chibage, Farai Mutizwa and Calisto Vengesai) as directors in the companies in order to protect his own interests.

The court ruled that the lawful shareholder of the two companies was the Phoenix Trust, the assets of which included corporate stock in the two companies.

It found that the fourth respondent (Terrence Cobden Rhodes) was a trustee of the Trust and a Director in both companies owned by the Trust. The court also found that the fourth respondent (Terrence Cobden Rhodes), as trustee, had legal title to the trust property and that any benefits accruing to the companies, including accumulated rentals in the sum of US$70,000, in turn, accrued to the Trust as the shareholder of the companies.

In granting its order, the court imposed the condition that the fourth respondent (Terrence Rhodes) should furnish evidence that the Trust legally owned the companies before the Registrar could release to the Trust the sum of US$70,000 that was deposited with him.

In the application a quo, the appellant adduced the supporting affidavit of the deceased's widow (Elizabeth Anne Rhodes). The admission of this affidavit was challenged by the fourth respondent (Terrence Rhodes) on the ground that it did not comply with the provisions of the High Court (Authentication of Documents) Rules, 1971. The court a quo agreed and held that the affidavit was not admissible as it had not been properly authenticated.

More importantly, the fourth respondent (Terrence Rhodes) also took the point in limine that the applicant did not have locus standi to bring the application because he was only the curator bonis of the deceased estate.

The appellant had initially deposed, in his founding affidavit, that he was acting in his capacity as the executor dative of the estate. However, he had attached the letters of his confirmation as curator bonis rather than his Letters of Administration in respect of the estate. Subsequently, through his answering affidavit, he then attached the Letters of Administration appointing him as the executor dative of the estate. The letters of confirmation were issued on 1 November 2013, while the Letters of Administration were issued on 26 February 2014.

High Court Judgment

As regards the appellant's locus standi, the court a quo found that, as at 20 November 2013, the appellant could not have engaged in Case No. HC1589/13 in terms of section 22(2) of the Administration of Estates Act [Chapter 6:01]. He would therefore not have had locus standi to seek the rescission of the order granted in that matter. That rendered his actions in casu nugatory as the absence of a cause of action could not be cured through the substitution of his capacity in his answering affidavit. He could not properly cure the defect in the founding affidavit pertaining to locus standi through the production of an authorising document in his answering affidavit.

The court accordingly held that his case must fail due to lack of legal standing.

Having found that the application should be dismissed for want of locus standi, the court nevertheless proceeded to address the merits of the matter.

As regards the alleged fraud, the court observed that this was not a ground for setting aside the earlier judgment under Rule 449(1)(a) of the High Court Rules, 1971. The court found that there was clearly no error committed, as envisaged in the Rules, as the earlier judgment had directed that the fourth respondent (Terence Rhodes) was to furnish proof that the deceased had transferred the shares in the two companies to the Trust.

With reference to the allegation that the fourth respondent (Terrence Rhodes) had fraudulently claimed that the deceased had transferred the shares, the court found that the appellant did not produce any authentic documents to counter the alleged fraudulent documents. No documentary evidence was adduced to prove what the appellant alleged to be the correct shareholding in the two companies. The appellant simply attacked the authenticity of the official documents produced by the fourth respondent (Terrence Rhodes), which showed that the Trust owned the entire shareholding in the companies, without any proof to controvert the fourth respondent's evidence.

Consequently, the earlier judgment must stand because it had not been shown that the court had relied on fraudulent evidence in assessing the facts before it.

In the event, the court a quo held that the relief of rescission sought by the appellant must be refused and accordingly dismissed the application on the merits.

Grounds of appeal and relief sought

There are three grounds of appeal in this matter:

(i)...,.

(ii) The second impugns the court a quo for holding that the appellant had no authority to institute proceedings, despite the presence of letters of appointment evincing such authority, and for refusing to accord the appellant an opportunity to furnish further evidence and proof of authority....,.

As regards the second ground of appeal, counsel for the fourth respondent initially took the position that the court was correct in finding that the appellant had no locus standi. However, at the close of his submissions, he was prepared to concede this ground of appeal....,.

1. The appeal is allowed in respect of the second ground of appeal, relating to the appellant's locus standi in the proceedings a quo...,.

View Appeal
HH665-16 : OLIVER MASOMERA (as Executor Dative of Estate late Brian James Rhodes) vs GIDEON HWEMENDE and OTHERS
Ruled By: CHITAPI J

I heard this matter on 20 November 2015 and reserved judgment. The preparation of my judgment has taken longer than expected on account of my deployment to the Criminal Division of this court in January 2016.

The delay in compiling this judgement is therefore attributable to the sheer volume of work which I have had to contend with in the Criminal Division. I have also had to peruse reference records, Case No's HC1589/13, HC617/15, 9849/13 and HC10625/13 which are quite voluminous as these cases bear on the determination of this application.

Turning to the matter itself, this is an application in which the applicant seeks the following relief as set out in his draft order;

“1. Application for rescission in terms of common law of the judgement by her Ladyship Tsanga J HC1589/13 (HH424-13) given in favour of the 4th respondent is hereby granted.

2. Alternatively, application for rescission in terms of Rule 449(1) of the High Court Rules, of the judgment by Ladyship Tsanga J in HC1589/13 (HH424-13) is hereby granted.

3. The respondent's (sic) be and hereby ordered to pay costs of suit on attorney client scale.”

The gravamen of the application is to be gleaned from paragraph 14 of the applicant's founding affidavit in which he stated as follows:

“14. That, this is an application for rescission of judgment in terms of the Common Law in case no. HC1589/13 (HH424/13) on the basis that the original order was obtained by fraud perpetrated by the 4th respondent. Alternatively, this an application for rescission in terms of Rule 449(1) of High Court Rules.”

The applicant's allegations of the fraud allegedly committed by the fourth respondent (Terence Corben Rhodes) are set out in paragraph 15 of the founding affidavit in the following wording;

“15. That, the application for rescission of the judgement in HC1589/19 (HC424-13), in terms of common law, is being sought because the applicant believes that the 4th respondent fraudulently misled the court into believing that the late Brian Jones Rhodes transferred shares of the two companies Beverly East Properties Pvt Ltd and Karoi Properties Pvt Ltd into Phoenix Trust, a fact which is not true.”

It is therefore necessary, in determining this matter, to set out the background to the dispute.

In Case No. HC1589/13, which was disposed of by TSANGA J, the applicant in the application before me was not a party.

The fourth respondent in casu (Terence Rhodes) was the second respondent in HC1589/13.

It is convenient to briefly set out the issues which fell for determination by TSANGA J.

In the said application, the applicant was a firm of legal practitioners, Honey & Blackenberg. The legal firm held a sum of US$70,000 in its trust account. The money had accrued on account of monies collected by that firm as rentals due to two companies, namely, Beverley East Properties (Pvt) Ltd and Karoi Properties (Pvt) Ltd. The companies own certain immovable property which was being managed by Robert Root & Company Estate Agents. Robert Root & Company Estate Agents, in turn, engaged Honey & Blackenberg to be its legal practitioners for purposes of collecting rentals accruing on the properties from various tenants leasing them.

Robert Root & Company terminated its agency for the companies. Honey & Blackenberg, however, remained accepting into their trust account payments made by some of the tenants.

It is the accumulated payment, which totalled US$70,000, which led Honey & Blackenberg to petition this court for a declaratory order as to whom the money should be paid.

The legal firm was faced with claims from nine (9) persons who lay claim to the money. The nine (9) claimants who were cited by Honey & Blackenberg in its application for the declaratory order granted by TSANGA J were the first (Gideon Hwemende) and third-tenth (Lourence Erasmus Vermaak, Terence Corben Rhodes, Valentine Mushore, Alfred Chademana, Joel Tenderere, Oliver Chibage and Farai Mutizwa) respondents in casu.

TSANGA J, in the application for the declaratory order or interpleader, granted an order in the following terms on 20 November 2013:

1. That the second respondent, Terence Cobden Rhodes as claimant in his capacity as Trustee of Phoenix Trust in whom the companies are held, is the lawful shareholder of the two companies.

2. That the second respondent, upon lodging with this court a valid Trust document effected by the deceased during his lifetime transferring the properties to the Trust, shall be entitled to require the Registrar of this Honourable Court to release to the Trust, the sum of $70,000 deposited with him in terms of Rule 206(1) of the High Court Rules, 1971.

3. That the third to the ninth respondents shall pay the costs of the applicant and the first and second respondents.

The above stated order is the one which the applicant prays that it be rescinded on the grounds of it having been obtained through fraud committed by the second respondents as referred to in TSANGA J's order.

If not falling for rescission on the basis of fraud, then it should be rescinded on the basis of Rule 449(1) of the High Court Rules, so the applicant prays in the alternative.

It is common cause that the two companies at the centre of the dispute were established by one Brian James Rhodes who passed on at Harare on 29 July 2006. The applicant in the application before me is the executor dative of the estate of the said late Brian James Rhodes (hereinafter called “deceased”).

As I have already indicated, the applicant was not a party in case No. HC1589/13 determined by TSANGA J.

The learned judge dismissed claims to ownership of the companies in issue by the third respondent Gideon Hwemende. This respondent is the first respondent in casu. The first respondent had purported to appoint the fifth-tenth respondents (Valentine Mushore, Alfred Chademana, Joel Tenderere, Oliver Chibage and Farai Mutizwa) as directors in one or other of the two companies to protect his interests.

With the dismissal of his claim, any claims which the fifth-tenth respondents may have sought to assert similarly fell through or suffered the same fate.

TSANGA J ruled that the lawful shareholder of the two companies was deemed to be Phoenix Trust whose assets included the corporate stock of those companies.

Her ladyship also found that the fourth respondent herein (Terence Corben Rhodes) was a Trustee in Phoenix Trust and a director in both companies owned by the Trust.

She further adjudged that the fourth respondent (Terence Rhodes), in his capacity as Trustee of Phoenix Trust, had legal title to the Trust property and that since the Trust was the holder of corporate stock in the two companies, any benefits accruing to the companies, in turn, accrued to the Trust as shareholder.

In concluding her analysis of the facts, TSANGA J stated as follows;

“Since the Trustee purports that the companies were transferred to the Trust some years ago by the late Brian James Rhodes, there must be in existence evidence which can be produced in support of this claim. Such Trust document was not part of the annexures in this application. As such; before the monies being held can be released, evidence of the Trust legally owning the companies must be furnished to this court through the Registrar of the High Court.”

The learned judge then made the order which I have quoted (supra).

This application is hotly contested and pits the applicant against the fourth respondent (Terence Rhodes).

The applicant's contentions, from a reading of his affidavit, can be summarized as follows in substance;

(a) That the fourth respondent (Terence Rhodes), as trustee of Phoenix Trust (hereinafter called the Trust), had, in the application before TSANGA J “fraudulently alleged that the late Brian James Rhodes during his lifetime had transferred the entire shareholding of the two companies (Beverley East Properties and Karoi Properties) into the Trust.”

(b) That he knew such fact to be untrue.

(c) That the court had relied upon the fourth respondents' fraudulent allegation to hold that the fourth respondent, as Trustee of the Trust, was the lawful shareholder in the two companies and further ordering that “upon lodging with Registrar of the High Court, a valid Trust Deed effected by the deceased, the late Brian James Rhodes, during his life time transferring ownership of the two companies to the Trust, he shall be entitled to the sum of $70,000.”

(d) That the fourth respondent knew that the Trust was not given any shareholding in the companies but only loan accounts as shown on the schedule of assets to the Trust Deed.

(e) That there is no documentary proof of any transfer of shares in terms of the Deed of Trust.

(f) That the fourth respondent deliberately misled the court and perpetuated a fraud because he knew that the two companies belonged to the deceased, and, consequently, to his estate. He thus led false testimony which made TSANGA J rule that the said fourth respondent was entitled to the rentals from the two properties.

(g) That the estate had a vested interest in the case determined by TSANGA J as it was the one entitled to the rentals.

(h) That TSANGA J's judgement has the effect of dissipating a portion of the deceased's estate and affected its winding up and final distribution.

(i) That, further, TSANGA J would not have granted the judgment she gave had she not been misled by the fourth respondent.

As such, the applicant therefore claimed rescission of that judgment at common law or in terms of Rule 449(1) of the High Court Rules....,.

Outside of the attack on the affidavit of Elizabeth Anne Rhodes, the fourth respondent (Terence Rhodes) has vehemently opposed this application on other grounds, both procedural and on the merits.

The fourth respondent took a point in limine, that, the applicant did not have locus standi to bring this application. The objection to the applicants' locus standi is twofold:

(i) The fourth respondent averred that the applicant was only a curator bonis of the estate of the deceased.

Section 22 of the Administration of Estates Act [Chapter 6:01] provides for the appointment and powers of a curator bonis. The section provides as follows:

“22(1) In all cases where it may be necessary or expedient to do so, the Master may appoint a curator bonis to take custody and charge of any estate until letters of administration are granted to executor testamentary or dative for the due administration and distribution thereof.

(2) Every such curator bonis may collect such debts and may sell or dispose of such perishable property belonging to the estate as the Master shall specially authorize.

(3) Every appointment made by the Master of any curator bonis shall, upon the application of any person having an interest in such estate be subject to be reviewed and confirmed or set aside by the High Court or any judge thereof; and the High Court or judge by whom such appointment is set aside may appoint some other fit and proper person to be curator bonis.”

The fourth respondent's counsel submitted that the powers of a curator bonis are limited.

The powers which he may exercise are clearly set out in section 22(2) of the Administration of Estates Act as quoted above.

A curator bonis is a caretaker of a deceased estate. He protects the estate and I would say that he ensures that the estate is preserved as it is until the executor testamentary or dative takes over. During this period of taking care of the estate, the curator bonis may collect debts or dispose of perishable assets of the estate. The curator bonis powers in this regard are exercised under the specific authority of the Master.

In this application, the applicant, in paragraph 1 of his affidavit, deposed to the fact that he was acting in his capacity of executor dative. He attached to the affidavit what he called “Annexure 'A' being letter of administration.”

Annexure 'A' aforesaid is however “Letters of Confirmation” of the applicants' appointment as curator bonis in the estate of the deceased.

TSANGA J's judgment was delivered on 20 November 2013. The Letters of Confirmation of the applicant, as curator bonis, were issued on 1 November 2013. Quite clearly, the applicant could not, as at 20 November 2013, have had power to engage in the court case HC1589/13 before TSANGA J.

The applicant's powers would only have derived from section 22(2) of the Administration of Estates Act.

Even if a wide interpretation was to be accorded section 22(1) of the Administration of Estates Act, that the applicant, as curator bonis, had custody and charge of the estate, the money in question which formed the basis of the application before TSANGA J was not estate property but would have accrued to the companies as separate legal entities with a separate existence at law.

I therefore find merit in the objection that the applicant would not have had locus standi to seek the rescission of TSANGA J's order.

In response to the fourth respondent's point in limine on locus standi, the applicant, in paragraph 3.1 of the answering affidavit, simply denied the allegation that he lacked locus standi. He then attached Letters of Administration appointing him executor dative of the estate of the late Brian James Rhodes.

The appointment was made on 26 February 2014. Judgment HC1589/13 had already been handed down on 20 November 2013.

The applicant has argued, in his heads of argument, that, he erroneously attached the letters of his appointment as curator bonis to his founding affidavit instead of the letters of appointment as executor dative attached to his answering affidavit.

He did not explain how the mistake arose. He is required to do so.

He argues that there is no prejudice to the fourth respondent caused by the error because when the applicant instituted the present application, on 23 January 2015, he was already the duly appointed executor dative.

The parties are agreed on the legal position regarding the fact that only an executor of a deceased estate is reposed with authority and power to represent that estate.

The remarks of KUDYA J, in Nyandoro & Anor v Nyandoro & Ors HH89-08, in which he referred to the case of Clarke v Bernade N.O. & Two Ors 1958 R&N 358 (SR) to the effect that the executor of a deceased estate is the only person with locus standi to bring a vindicatory action relative to the property alleged to form part of the estate are correct.

The fourth respondents' counsel referred to these authorities.

The applicants' counsel referred to WILLE's Principles of South African Law, 8th ed, though the precise page from which he quoted as follows was not provided. Counsel quoted as follows:

“It follows that the executor alone can sue and be sued in respect of estate matters. Legal proceedings are brought or defended by him in his capacity as executor for he is the legal representative of the deceased.”

The applicants' counsel further referred to the cases of Snyman v Basson N.O. 1995 TPD 368…, and Greenberg v Estate Greenberg 1955 (3) SA 361 to buttress his submissions on the same point.

The legal position is therefore properly ventilated.

The applicant has submitted, that, his annexing of correct letters of appointment, as executor dative, in the answering affidavit, should be taken as having cured the defect or mistake in the founding affidavit.

Counsel for the applicant cited the case of Baeck & Co. SA (Pty) Ltd v Van Zummeren & Anor 1982 (2) SA 112…, as authority that a deficiency in authority can be cured in retrospect through the filling of an answering affidavit. GOLDSTONE J…, stated:

“The right to move for the dismissal of the application on the ground of lack of locus standi is, with respect, hardly what one would envisage as constituting a vested right…,.

If, in law, the deficiency in his authority can be cured by ratification having retrospective operation, I am of the opinion that he should be allowed to establish such ratification in his replying affidavit in the absence of prejudice to the first respondent.

It is clear that, in this case, subject to the question of ratification and retrospectivity, the first respondent would not be prejudiced by such an approach.”

The applicant further relied on various other South African decisions, namely, Evangelical Lutheran Church in Southern Africa (Western Diocese) v Sepeng & Anor 1980 (3) SA 958 (B) and Merlin Gerin (Pty) Ltd v All Current and Drive Centre (Pty) Ltd 1994 (1) SA 659C.

The two decisions make the same point made in Baeck & Co. SA (Pty) Ltd v Van Zummeren & Anor 1982 (2) SA 112, that, where an applicant lacks authority to institute proceedings which he will have commenced, he can cure the defect by providing proof through ratification and further providing proof of pre-existing authority.

The applicant has submitted that this court should adopt the same reasoning and approach and hold that the defective or invalid authority erroneously filed by the applicant with his founding affidavit was ratified by the filing of proper Letters of Administration annexed to the answering affidavit.

The fourth respondent's counsel has argued, that, to allow the correction of a defective founding affidavit, through the introduction of new matter in an answering affidavit, would go against the accepted practice of this court.

He submitted, that, this court has always followed the practice, that, in considering applications in application proceedings, the applicants' case is built upon the founding affidavit. If, on the founding affidavit, no cause of action is disclosed, then the application must fail.

Counsel has cited a plethora of cases, including Mobil Oil Zimbabwe (Pvt) Ltd v Travel Forum (Pvt) Ltd 1990 (1) ZLR 67 (HC) and quoted the court's pronouncement therein as follows…,:

“It is a well-established general rule of practice that new matter should not be permitted to be raised in an answering affidavit.

This has been the settled practice of our courts, at least since the matter was adverted to in Coffee, Tea and Chocolate Co. Ltd v Cape Trading 1930 CPD 81 at 82 and Air Zimbabwe & Ors v Zimbabwe Revenue Authority HH96-03 wherein a number of decisions are quoted, being authority, that, in application proceeding, an applicant stands or falls on his or her founding papers and may not raise a different cause of action in his or her answering affidavit.”

It is necessary, in my view, to just refresh on what a cause of action is.

In simple terms, a cause of action would be constituted by a totality of facts necessary to be proved by the applicant or the plaintiff to justify a right to sue or enforce a right against the opposing party, being the respondent or defendant as the case may be.

MALABA JA…, in the case Traude Alison Rogers v Elliot Grenville Kern Rodgers and Master of High Court SC64-07 quoted the case of Peebles v Dairiboard Zimbabwe (Pvt) Ltd 1999 (1) ZLR 41 H 54 E-F, thus:

“A cause of action was defined by LORD ESTER MR, in Read v Brown (1888) 22 & B 131, as every fact which it would be necessary for the plaintiff to prove if traversed in order to support his right to the judgment of the court.

In the same case, LORD FRY, at 132-133, said the phrase meant everything, which if proved, gives an immediate right to judgment.

In Letang v Cooper (1965) QB 232 at 242-3 DIPLOCK LJ (as he then was) said a cause of action is simply a factual situation, the existence of which entitled one person to obtain from the court a remedy against another person.”

The learned judge also referred to the cases of Patel v Controller of Customs & Excise HH216-89; Hodgson v Granger & Anor HH133-91; Dube v Banana 1998 (2) ZLR 92 (H).

I would also add the instructive judgment of MAKONI J in Meikles Limited v Zimbabwe Stock Exchange & Alban Chirume HH66-16.

Having defined a cause of action, the next question to be addressed is whether the applicant established a cause of action on the founding affidavit.

A person or juristic entity which lacks locus standi cannot, in my view, be said to have established a cause of action.

This is so because an applicant lacking in legal capacity is not recognizable by the court.

The applicant, in this case, averred in the founding affidavit that he was the executor dative of the Estate Late Brain James Rhodes. He averred that he derived his powers from annexure 'A' being his Letter of Administration.

Annexure 'A', as is common cause, is a letter, not of administration but of confirmation as curator bonis.

The applicant did not give any other details of his appointment.

Had the applicant alleged facts pertaining to the details of his appointment as executor dative, then, the court could have appreciated that there was a mix up between the details of his appointment and the alleged wrong annexure. The correction sought to be made by a different annexure, in the answering affidavit, could then have made sense. Annexure 'A' to the answering affidavit could, in such circumstances, have been properly condoned.

In my view, a distinction should be made between ratification of questioned authority and a substitution of different legal persona.

In this case, the applicant cannot be said to have ratified the defective or invalid authority.

If Annexure 'A' to the founding affidavit suffered from some defect, one could then seek to authenticate it by ratification. Ratification cannot be achieved through substitution.

This is what the applicant seeks to do.

Annexure 'A' to the founding affidavit, which the applicant presented as granting him powers to bring this application, does not suffer from any legal defect. No ratification of the same is required. It is a valid document which however precludes the applicant from making a claim as the one in casu.

The document allows the applicant to make certain defined claims.

The South African authorities cited by the applicant, in support of his assertion that he can properly remedy the defect through ratification, do not cover a scenario as the one before the court.

The applicant wore two hats, as curator bonis and as executor dative. Both hats provide for defined powers under the Administration of Estates Act.

The applicant chooses which hat to wear in order to exercise his powers. He chose a hat to wear in exercising powers outside the parameters of that hat. This rendered his actions nugatory.

I am persuaded that the remarks of LORD DENNING, in McFoy v United Africa Co Ltd (1961) 3 ER 1169, being a case quoted by the fourth respondent's counsel, to the effect that a void act is in law a nullity and that a nullity, as the word connotes, means that there is nothing, are apt in this case.

One cannot cure a nullity.

See Hativagone & Anor v CAG Farms (Pvt) Ltd SC42-15.

Another way of looking at the issue of locus standi raised by the fourth respondent is to consider it as an exception that the applicant lacks locus standi, and, consequently, no cause of action arises from his papers.

An exception that there is no cause of action, if upheld, cannot be cured through substitution in order to found a cause of action. This would be tantamount to allowing the applicant to bring a new cause of action through a replying affidavit.

In this case, the applicant was not without recourse.

Having realised that he had relied on a valid legal document, which, however, did not permit him to exercise the powers he sought to invoke, he should have simply withdrawn his application and commenced it afresh dorning the correct hat of executor dative and attached the correct legal authority.

If the matter had commenced, not by application, but by action, the applicant could have applied to amend his pleadings or papers; see Arafas Mtausi Gwarazimba v AKA Jutie Panagiota Mercuri N.O. and Master of the High Court HH168-15.

In application proceedings, an answering affidavit seeks to answer factual averments made in the opposing affidavit. The answering affidavit should not be used to cure a legal defect and build a case which, on the founding affidavit, is not established.

I am not persuaded to accept that the applicant could properly cure the defect in his founding affidavit, on locus standi, through the production of what he purports to have been the authorising document for his case in the replying affidavit.

The applicants' case must therefore fail.

HH688-14 : GERALD CHIWESHE and SAMEER KHAN and BRUCE THOMAS vs AIR ZIMBABWE HOLDINGS (PVT) LTD
Ruled By: MTSHIYA J

In this consolidated action, each plaintiff claims payment of salary arrears and allowances from the defendant.On 22 January 2013, KUDYA J, who dealt with the pre-trial conference relating to the parties herein issued the following order:“IT ORDERED THAT:1. The parties have failed to reach a settlement.2. The present matter, HC315/12, ...

In this consolidated action, each plaintiff claims payment of salary arrears and allowances from the defendant.

On 22 January 2013, KUDYA J, who dealt with the pre-trial conference relating to the parties herein issued the following order:

“IT ORDERED THAT:

1. The parties have failed to reach a settlement.

2. The present matter, HC315/12, be and is hereby consolidated with the case of Sameer Khan v Air Zimbabwe Holdings (Pvt) Ltd HC316/12 and the Matter of Gerald Chiweshe v Air Zimbabwe Holdings (Pvt) Ltd HC1786/12 for trial.

3. The present matter is referred to trial on the basis of the Joint Pre-Trial Conference Memorandum dated 4 June 2012.”

The Joint PreTrial Conference Minute signed by the parties in HC316/12 on 4 June 2012 was endorsed by HUNGWE J on 24 October 2012. It was, however, formally filed on 5 June 2012. There is therefore no doubt that the memorandum referred to in KUDYA J's order is the one filed on 5 June 2012. The said memorandum lists the issued for determination in this trial as follows:

“1.1 Whether or not this Honourable Court has jurisdiction to deal with the plaintiff's claims.

1.2 Whether or not the plaintiff is collectively bound by the arbitration award which was issued in November 2011.

1.3 Whether or not any rights accrue in favour of the plaintiff in terms of his contract of employment.

1.4 Whether or not the schedule of the alleged sums due is an authentic document reflecting defendant's indebtedness to the plaintiff.

1.5 Whether or not the failure to settle the plaintiff's salaries by the defendant is attributed to supervening impossibility.

1.6 Whether the sum claimed or any sum is due to plaintiff by defendant.”

The record shows that the award referred to in 1.2 above was actually issued on 5 October 2011. The effect of consolidation is that the above issues are the ones to be determined with respect to each of the three plaintiffs in this matter.

The determination herein shall follow the manner in which the parties' legal practitioners have put forward their arguments with respect to each plaintiff. Upon dealing with the preliminary issues, counsel for the parties then proceeded to argue the case of each plaintiff in the following order:

(a) Gerald Chiweshe - 1st Plaintiff.

(b) Sameer Khan - 2nd Plaintiff.

(c) Bruce Thomas - 3rd Plaintiff.

I shall therefore be guided by the same arrangement when dealing with each plaintiff.

The common factor in this case is that each one of the plaintiffs was at one time employed by the defendant as a pilot, with the highest rank, where applicable, being that of captain. The plaintiffs, prior, to leaving the employ of the defendant, were each owed outstanding salaries and allowances. They then, on the different dates indicated against their names here-below, issued summons for the amounts also indicated against their names:

I shall now proceed to deal with the preliminary issues raised by the defendant.

(i)...,.

(ii) The next preliminary issue raised by the defendant is that the issues before the court were determined through arbitration when it was ruled that an agreement entered between the plaintiffs and the defendant, in 2003, was null and void.

However, the plaintiffs take the point that their contracts of employment were not subject to the said agreement of 2003 and that they were not party to the arbitral award of 5 October 2011.

They argue, further, that the arbitral award had nothing to do with the payment of their arrear salaries and allowances.

Apart from the arbitral award, the defendant did not place before the court the 2003 agreement which it said was arbitrated upon. There was no evidence to prove that the plaintiffs were parties to that agreement and that their salaries were indeed governed by that agreement.

Each of the plaintiffs' testified that they had individually negotiated their own salaries upon which the salary arrears and allowances are now claimed. It is accepted, by the defendant, that, there were salary arrears and allowances in respect of each plaintiff and that there was never any specific arbitration relating to each plaintiff's salary arrears and allowances.

In short, the evidence before the court clearly distances the plaintiffs from both the agreement of 2003 and the arbitral award of 5 October 2011.

It is also important to note that the arbitral award quoted above is based on the following terms of reference:

“(a) To determine the appropriate salaries and allowances that must be paid to the employees (respondent).

(b) To determine whether or not it is proper for the employer (applicant) to propose new contracts before fulfilling obligations of the existing contract.

(c) To determine appropriate remedy under the circumstances.”

The above terms of reference, in my view, explain why the award makes no reference to the validity of the unknown 2003 agreement.

Furthermore, the operative part of the arbitral award that the defendant wants to rely on, apart from having been granted after all the plaintiffs' salaries were already in arrears, reads as follows:

“1. That the application be and is hereby allowed.

2. That the respondent continues getting the National Employment Council bench-marked basic salaries.

3. That the applicant pays the respondent 45 per cent of the internationally applied regime over and above respondent's salaries.

4. That the respondent receives allowances premised on productivity based formulation whereby they are paid per hours flown.

5. That the applicant shall meet all the arbitration costs.”

Clearly, the above award makes no reference to the so-called 2003 agreement that the respondent says was declared null and void.

Without having seen the said 2003 agreement, it is near impossible to establish a link between it and the plaintiffs' contracts of employment.

The fact that the Zimbabwe Flight Crew Association (the Association) might have influenced the salaries of its members does not necessarily make them a party to the individual employment contracts between the defendant and the association's members or the plaintiffs.

I hold the view that a finding that the award has nothing to do with the plaintiffs' contracts of employment entails that evidence given by the defendant, mainly through Mrs Mutsinze, relating to the arbitral award, should be totally ignored because it bears no relevance to the plaintiffs' contracts of employment and their claims.

In view of the foregoing, I am also unable to uphold the second preliminary issue (i.e res judicata) raised by the defendant.

Appealed
SC14-21 : MAXWELL SIBANDA vs ZAMBE NYIKA GWASIRA and NZ INDUSTRIAL and MINING SUPPLIES and REGISTRAR OF DEEDS and SHERIFF OF ZIMBABWE
Ruled By: GOWORA JA, GUVAVA JA and BHUNU JA

THE FACTSOn 13 July 2011, under Case No HC6750/11, the appellant caused summons to be issued out of the High Court against NZ Industrial and Mining Supplies as defendant to the suit. In the summons he claimed the following relief:(a) A declaration that the parties did enter into a valid ...

THE FACTS

On 13 July 2011, under Case No HC6750/11, the appellant caused summons to be issued out of the High Court against NZ Industrial and Mining Supplies as defendant to the suit. In the summons he claimed the following relief:

(a) A declaration that the parties did enter into a valid agreement for the harvesting of timber in respect of a portion of an area known as Glen Forest, Gairezi, Nyanga.

(b) Delivery of 1,120m3 of sawn timber to the plaintiff.

(c) Alternatively, payment of USD$392,000 being the equivalent of 1,120m3 of timber at USD$350 per cubic metre.

(d) Payment of USD$4,000 being the balance payable in respect of the agreement.

(e) Interest on the above amounts at the prescribed rate of interest with effect from 1 May 2010 to the date of final payment.

(f) Costs of suit on the scale as between client and legal practitioner.

The second respondent duly entered appearance to defend the suit. It was not legally represented and the first respondent, who was its Managing Director, signed the papers indicating an intention to defend the action. He also filed a plea on the merits of the claim.

Thereafter, the parties were summoned to attend a pre-trial conference before a judge in chambers.

The first respondent was advised by the presiding judge that he could not represent the second respondent in the suit as he was not a registered legal practitioner. It was suggested that he should obtain the services of a legal practitioner to represent the company. He undertook to do so.

The pre-trial conference was postponed sine die.

The first respondent engaged one Kaseke to represent the second respondent in the suit.

Subsequent to this, on a date not stated in the papers, the first respondent's immovable property was attached in execution. An investigation revealed that the legal practitioner engaged to represent the second respondent had defaulted when summoned to appear at a resumed pretrial conference.

The appellant had, as a consequence, obtained a default judgment against the second respondent, and, somehow, the first respondent's name had been added as a defendant together with that of the second respondent.

It transpired that the appellant had filed an amended draft order which reflected the defendant to the suit as Zambe Nyika/Gwasira NZ Industrial & Mining Supplies. The record however shows that the declaration described the defendant, the second respondent herein, as a company duly registered as such in accordance with the laws of Zimbabwe.

The appellant was unable to execute against the writ of execution. He, therefore, filed an application under Case No. HC7244/14 in which he sought the following relief:

“IT IS ORDERED AS FOLLOWS:

1. That the application for a mandament restraining the first respondent from disposing of or otherwise alienating the immovable property be and is hereby granted.

2. That the immovable property known as Stand 13552 Salisbury Township of Salisbury Township lands held by the first respondent under Deed of Transfer Number 5750/94, dated 21 September 1994, be and is hereby declared especially executable.

3. That the first respondent shall pay costs of suit.”

The first respondent opposed the application.

In his opposing papers, he also sought, as a counter-application to the relief sought by the appellant, to have the default judgment rescinded.

The court was of the view that the counter application for rescission had not been brought in accordance with the rules of court.

The first respondent's wife also opposed the application.

She contended that she had a personal interest in the immovable property by virtue of her marriage to the first respondent.

The court a quo was disinclined to uphold the opposition, and, on 28 November 2014, it granted the order described above in favour of the appellant.

Consequent to the issuance of this order, on 27 January 2015, a writ of execution was issued in which the property described above was placed under attachment at the instance of the appellant. The record is silent as to the fate of the writ.

On 29 July 2015, Everjoy Meda, the estranged wife to the first respondent, filed an application with the Constitutional Court alleging a violation of her rights in the immovable property arising from the suit and the writ of attachment in execution.

The application was dismissed with costs on a higher scale.

The view of the court was that she should have appealed the judgment of the High Court instead of bringing a constitutional application when no constitutional issue fell for determination before the High Court and the Constitutional Court itself.

On 22 February 2016, under Case number HC1655/16, Everjoy Meda and her son filed an application for the rescission of the judgments granted under Case Numbers HC6750/11 and HC7244/12 respectively, on the grounds that they were issued in error.

They approached the court in terms of Rule 449 of the High Court Rules 1971.

On 2 November 2016, the High Court dismissed the application with an order of costs on the high scale. The court concluded, that, they had not shown that they had any legal interest in the validity of the judgments in question.

On 10 November 2016, the first respondent filed a chamber application in terms of Rule 449 for the rescission of the judgments granted under Case Numbers HC12599/11 and 7244/12 on the premise that they were judgments granted in error.

PROCEEDINGS BEFORE THE COURT A QUO

Before the court a quo, the first respondent contended, that, the appellant had erroneously added his name as a party to the suit when, in reality, he had not been cited when the summons was issued.

He argued, further, that, the court a quo, labouring under the mistaken apprehension that the first respondent was a party to the proceedings, had granted a default judgment whose enforcement was being implemented by the appellant.

He argued, that, the appellant had not proferred a meaningful explanation as to why he had joined the first respondent without due process.

He concluded, that, his joinder to the proceedings was in error, which error should be corrected by the rescission of the two judgments.

The thrust of the argument by the appellant, in opposing the relief sought in the court a quo, was that the first respondent had not been diligent in pursuit of his rights.

In making this argument, the appellant sought reliance on Grantully (Pvt) Ltd & Anor v UDC Ltd 2000 (1) ZLR 361 (S).

The argument made was that various applications had been brought to court by the first respondent and his wife and son. All these applications had been ill-conceived.

It was argued, that, in relation to the application in which the immovable property was declared especially executable, the first respondent was present during the proceedings and he could not, therefore, avail himself of relief under Rule 449.

It was further contended, that, the court had dismissed his bid for rescission and the judgment in question had not been appealed against.

Thus, it was contended, the matter was res iudicata and could not be re-opened through an application under Rule 449.

To that end, the judgment refusing leave for rescission was extant and he was disabled from relief under Rule 449.

On 26 July 2017, the High Court rendered its decision in the matter.

As regards the rescission of the judgment under Case Number HC6750/11, the default judgment, the court observed that:

“In casu, it is not disputed that when the default judgment was granted in HC12599/11 or HC6750/11 the second respondent was not in attendance. It had defaulted at the pre-trial conference.

Again, it is not disputed that when the summons was issued in the matter, the applicant was not a party to the proceedings.

From nowhere, his name was only included, for the first time, at replication stage in the replication by the first respondent who was the plaintiff in the matter.

At the pre-trial conference, when N.Z. Industrial and Mining Supplies did not attend, a court order with the applicant's names was obtained by the first respondent.

The first respondent failed to explain, in his opposing papers in the present matter, how the name of NZ Industrial and Mining Supplies metamorphosed to include the name of the applicant.

The applicant has therefore made a good case for this court to rescind the default judgment that was granted in HC6750/11 initially erroneously granted under case number HC12599/11 as it is clear that it was erroneously sought and granted in the absence of the applicant and it affects his rights and interests.”

The court a quo also adverted to the question of the delay in bringing the application under Rule 449.

The court considered, on the principle set out in Grantully (Pvt) Ltd & Anor v UDC Ltd 2000 (1) ZLR 361 (S) that the delay was inordinate but that, notwithstanding the delay, the circumstances were such that the first respondent had made out a good case for the grant of the relief he sought. The court said:

“It was only after 4 years 8 months of the default judgment having been granted that the applicant woke up from his slumber and brought this application. The delay is inordinate. However, in view of the nature of the error that prompted the making of the application, this is an exceptional case where I am inclined to grant the rescission despite the inordinate delay. The error goes to the root of the matter because judgment ended up being granted against a person who is different from the one who had been sued.

In the summons and declaration, the defendant was cited as N.Z. Industrial and Mining Supplies which is a company. At replication stage, the first respondent, who was the plaintiff, simply changed the name of the defendant to Zambe Nyika/ Gwasira N.Z Industrial & Mining Supplies.

The name of the defendant was now a combination of the applicant's name and his company's name.

I believe the first respondent was taking advantage of the fact that N Z Industrial and Mining Supplies was being represented by the applicant, who is a layperson, and not by a legal practitioner.

Upon N.Z. Industrial and Mining Supplies defaulting court, at pretrial conference, the first respondent prepared a draft order with the name of the defendant as Zambe Nyika/ Gwasira N.Z Industrial & Mining Supplies and obtained an order bearing these names.

Such a defendant, who is a combination of an individual and a company, is non-existent.

The judgment cannot, therefore, be allowed to stand. I will thus grant the application for rescission in HC6750/11.”

The court a quo was, however, disinclined to grant rescission in respect of the judgment granted in HC7244/12, which judgment declared the first respondent's immovable property to be especially executable.

The court a quo was of the view that the applicant had failed to satisfy the requirements provided for in Rule 449.

The court a quo found, that, the first respondent was present at the hearing and had filed papers in opposition to the application.

On that premise, the court a quo considered that the first respondent was disabled from arguing that it was a judgment granted in error in his absence. The court a quo found that the application fell foul of Rule 449.

I do not think, that, to that extent, the reasoning of the court a quo can be faulted.

ARGUMENTS ON APPEAL

The appellant appeared in person.

Prior to the matter being set down for hearing the appellant had the benefit of legal representation. Those representing him at the time had filed extensive heads of argument on his behalf.

He submitted that he would abide by these heads of argument.

He maintained, that, the court a quo should not have granted rescission due to the inordinate delay that preceded the filing of the application for rescission.

In the heads of argument, the contention made is that the first respondent had acquiesced to the default judgment in which the court dismissed the application brought by his wife and son under Rule 449.

It was contended, further, that, the court a quo should have upheld the defence of res iudicata raised by the appellant in that the dispute had been determined and the first respondent had participated fully.

Based on the agreement executed by the parties, it was contended, that, there was no error in the description of the defendant to the default judgment.

The appellant made reference to Tiriboyi v Jani & Anor 2004 (1) ZLR 470 (H).

Counsel for the first respondent argued as follows:

The default judgment was granted in error. The appellant's legal practitioners had themselves acknowledged this error in a letter addressed to the Registrar of the High Court. The letter had attached to it an amended draft order in which the defendant was a merger of the company and the first respondent as the defendant to the suit.

With regard to the immovable property, she contended that the appellant had fraudulently launched an application to have the property declared especially executable based on the erroneous order.

As it pertained to the application brought by the first respondent's wife and son, it was clear that the application was dismissed on the premise that the two did not have legal interest in the matter. It was not decided on the merits. As a consequence, the argument that the principle of res iudicata was applicable to the facts of this appeal was misplaced and should be discounted by the court.

As regards the judgment issued under Case Number HC7244/12, it was her further argument that the judgment was based on a nullity. The judgment granted in default was granted against a party that did not exist and a party who was not a litigant to the lis.

The setting aside of that judgment affected the status of the later judgment.

The latter had its genesis firmly on the first, and, once the earlier judgment was no more, there could be no life breathed into the second judgment.

She urged the court to exercise its review powers under the Supreme Court Act [Chapter 7:13] and set it aside as being irregular.

ISSUES FOR DETERMINATION

The disposition of this appeal hinges on the construction of Rule 449. The critical questions in that determination are the following:

(i) Whether indeed there was an error in the judgment; and

(ii) Secondly, what is the meaning to be ascribed to “absence” in the said Rule.

ANALYSIS OF THE FACTS

The appellant has never denied, that, when summons was issued, the first respondent was not cited as a party. He has also not denied, that, the first respondent's name was improperly added to the proceedings.

He cannot say how this happened.

The first respondent was not joined as a party. The appellant does not argue that the first respondent was not properly joined as a party.

HERBSTEIN & Van WINSEN…, 5ed, Civil Practice of the High Courts of South Africa, state:

“In an application for a default judgment, the impression was created that a division of ABSA Bank purported, in its own right, to have instituted various actions. The court was satisfied that the party which instituted the actions was ABSA Bank which had locus standi, but was wrongly described in the summons.

As there was no possibility of any prejudice to the defendants, the court granted the amendments applied for.

In another case in which there was an incorrect citation of parties, the court granted an amendment, as it did not involve the substitution of one legal entity for another, but merely corrected an incorrect description of the original plaintiff.

An amendment will not, however, be granted when a defendant's name has been omitted from the summons, or when a summons has been issued in the name of a plaintiff who was no longer alive at the time of issue.

Where the named plaintiff is not a legal persona, the summons is invalid.”

In this case, there was no joinder of the first respondent as a party to the proceedings nor was there even an application to amend the citation of the parties to the suit.

There was an addition of the name of the first respondent - which addition created a non-existent party.

In L & G Cantamessa v Reef Plumbers: L & G Cantamessa (Pty) Ltd v Reef Plumbers: 1935 TPD 56, the court had to consider whether or not a summons can be amended to include a defendant who was not cited in the original summons. At pp59-60, TINDALL J stated as follows:

“The magistrate, in his reasons, stated, that, he allowed the amendment to the summons under sec.105 of the Magistrates Court Act; that he regarded the name of the defendants in which they were sued, viz; L & G Cantamessa as a mere misnomer, and that the mistake was covered by sub-sec. 3 of sec 105 of the Magistrates Court Act.

In my opinion, it is quite plain, that, in taking that view, the magistrate erred.

This is not a case of a mere misnomer. The effect of the amendment was to introduce a new defendant into the case. The original defendant, L & G Cantamessa was either a partnership or two individuals. It would seem that it was intended to cite L & G Cantamessa as a partnership because the summons was served only on one of the parties under Order VI.

In any event, whether the summons was against a partnership or two individuals, it is clear that the limited company is an entirely different persona in law and that it was not merely a matter of a misnomer. A different persona was introduced into the proceedings, and, in my opinion, that was not permissible under sec.105.”

And later at pp60-61:

“…,. That being so, in my opinion, there was no satisfactory answer to the review that there was a gross irregularity that a defendant who had not been cited and was not before the court, had been introduced into the action as the defendant at the conclusion of the case.”

It seems to me, that, those remarks apply with equal force to the facts of the case in the appeal before the court.

The principle set out above was confirmed in the later case of Greef v Janet en'Ander 1986 (1) SA 647. The judgment is in Afrikaanse but the headnote reads:

“There would appear to be no authority for the proposition, that, a court, upon application by a plaintiff, can oblige a non-party to a dispute, without the latter's consent (and by way of an amendment of the summons), to replace the defendant. If the plaintiff suspects that he has sued the wrong party, he can either, in appropriate circumstances, attempt to have the right party joined, or issue summons anew against him.”

I respectfully associate myself with that statement.

The first respondent was never a party, was not joined, and should not have been added to the process in the manner done in this case.

If he had been joined, he would have been a separate party to the company.

What is clear is that the defendant appearing on the order granting default judgment does not exist. There is no such person.

This a clear irregularity as found by the court a quo.

Whether or not the first respondent participated in subsequent proceedings does not change the substance of the irregular order issued in default against him.

In Tiriboyi v Jani & Anor 2004 (1) ZLR 470 (H), MAKARAU J…, said:

“The purpose of Rule 449 appears to me to enable the court to revisit its orders and judgments to correct or set aside its orders and judgments given in error, and, where to allow such to stand, on the excuse that the court is functus officio, would result in an injustice and will destroy the very basis upon which the justice system rests. It is an exception to the general rule and must be resorted to only for the purposes of correcting an injustice that cannot be corrected in any other way.

The Rule goes beyond the ambit of mere formal, technical, and clerical errors and may include the substance of the order or judgment: see Grantully P/L 2000 (1) ZLR 361 (SC).

Rule 449 is a procedural step to correct an obviously wrong judgment or order.”

There can be no doubt, in this case, that, the first respondent's interests were affected by the judgment granted in default against him.

There is no doubt that he was not cited as a party to the suit, was not served with the summons, and, even when his name was added, he was not notified.

The judgment given fits all the requisites of a judgment granted in the absence of a party.

When considering whether or not the first respondent should succeed, the court a quo set out the requirements under Rule 449 as being:

“Rule 449(1)(a) reads as follows:

'449 Correction, variation, and rescission of judgments and orders

(1) The court or a judge may, in addition to any other power it or he may have, mero motu or upon the application of any party affected, correct, rescind, or vary any judgment or order —

(a) That was erroneously sought or erroneously granted in the absence of any party affected thereby.”

For relief under Rule 449(1)(a) to be granted, the following requirements have to be met:

(a) The judgment must have been erroneously sought or granted;

(b) The judgment must have been granted in the absence of the applicant; and

(c) The applicant's rights or interests must be affected by the judgment.'

See Mashingaidze v Chipunza & Others HH688-15.

It is therefore clear from these requirements that a party can only seek to rescind a judgment in terms of Rule 449(1)(a) if he was absent when the judgment he seeks to rescind was granted.

If the party was present, he cannot seek rescission.”

In casu, no attempt was made to bring the first respondent before the court. He was absent from the proceedings.

The contention made in the heads of argument, that, he had acquiesced to the judgment by participating in the processes launched by his wife and son cannot sway the court.

The initial proceedings were marred by serious irregularities in the manner in which the appellant sought to bring the first respondent before the court and the first respondent cannot be considered as having acquiesced to a process that amounts to an irregularity.

In the circumstances of this case, the appellant cannot be heard to argue that the court misdirected itself.

The first respondent was never heard. He was not present.

The default judgment was not only granted in error - it was also granted in his absence in every respect.

In my view, the appeal is devoid of merit and must be dismissed.

HH298-17 : ZAMBE NYIKA GWASIRA vs MAXWELL SIBANDA and N.Z. INDUSTRIAL & MINING SUPPLIES and REGISTRAR OF DEEDS and SHERIFF OF ZIMBABWE
Ruled By: MATANDA-MOYO J

This is a chamber application for dismissal of an application for stay of execution for want of prosecution in terms of section 236(3)(b) of the High Court Rules, 1971.

The first respondent filed an application for stay of execution pending the determination of an application for rescission on 18 November 2016 - case no. HC11759/16 refers. The applicant filed a notice of opposition on 1 December 2016: such notice of opposition was served upon the first respondent the same day.

On 25 January 2017 the applicant filed this application.

After receiving the application for dismissal, the first respondent immediately filed answering affidavits and heads of argument in case HC11759/16. That main matter was set down for hearing.

It was at such hearing that the court was advised of the existence of this present application.

The parties agreed that this current application be referred to me for determination before dealing with the application for stay of execution.

Rule 236(3) of the High Court Rules provides;

“Where the respondent has filed a notice of opposition and an opposing affidavit, and, within one month thereafter, the applicant has neither filed an answering affidavit nor set the matter down for hearing, the respondent, on notice to the applicant, may either -

(a) Set the matter down for hearing in terms of Rule 223; or

(b) Make a chamber application to dismiss the matter for want of prosecution, and the judge may order the matter to be dismissed with costs or make such other order on such terms as he thinks fit.

(c)…,.”

From a reading of the above it is clear that a judge has a wide discretion in a matter for want of prosecution in deciding whether to dismiss or not. The remedy is not available on asking.

Obviously, this Rule is designed to ensure that there is finality to litigation.

This Rule serves to ensure, that, once a litigant has instituted proceedings by way of application, matters are swiftly disposed. The Rule is meant to ensure that litigants are serious in the disposal of their application brought before the court. Matters must not be left stagnant before the court.

A respondent to the application has a choice to either set the matter down for hearing or to apply for its dismissal.

The respondent herein opted for dismissal.

As reiterated above, whether to grant the application or not is in the discretion of the court after scrutinising factors such as;

(i) The length of delay in fling an answering affidavit and setting the matter down;

(ii) The explanation thereof; and

(iii) Prospects of the respondent's success in the main matter.

It is common cause that the first respondent was served with the applicant's papers on 1 December 2016. In terms of Rule 236(3) of the High Court Rules, the first respondent was supposed to file his answering affidavit a month later, that is, by the third of January 2017. He did not.

This application was filed some three weeks after the deadline.

The first respondent's response to the application was that he had already filed his answering affidavit as well as heads of argument at the time of this application.

I have perused the file dealing with the application for stay of execution, HC11759/16, and found, that, the answering affidavit was filed on 31 January 2017 after the application for dismissal had been filed on 25 January 2017. According to the stamp on the application, the respondent's legal practitioners received same on 25 January 2017.

It is therefore not correct that the answering affidavits were filed before the respondents were aware of this present application.

However, once they received this application, the first respondent immediately filed his answering affidavit and heads of argument. Same matter had been set down for hearing before this application was set down.

In the main matter, the first respondent's complaint is that he was not a party to the proceedings which culminated in the attachment of his immovable property.

It is his submission that when the matter initially came before the court, in 2011, that is under HC case no. 6750/11, the parties before the court then were Maxwell Matsvimbo Sibanda and NZ Industrial and Mining Supplies. Under paragraph 2 of the declaration, the plaintiff therein wrote;

“2. The defendant is a company duly incorporated in terms of the laws of the Republic whose given address for service is at No.48 Dam Judson Road Milton Park, Belvedere, Harare.”

The default order, the first respondent claimed, suddenly introduced him as a defendant. He has challenged that order under Rule 449. He believes the court made an error by suddenly adding him as a defendant therein.

The applicant argued that there have been several applications wherein the first respondent was party to. He never raised the issues he is raising now. Instead, the first respondent even used his customary wife to try and stop the sale of the house. The matter went as far as the Constitutional Court, CCZ31/15 refers, wherein the Constitutional Court's view was that the property must be sold.

The applicant's view is that the first respondent is abusing the courts in a bid to save his property from execution.

It is the applicant's case, that, from the time he got judgment up till now, he is being forced to defend spurious litigation. To date, he has expended over $30,000 in legal fees. The property in question is likely to sell for $90,000 and most of the proceeds may be wasted on legal fees.

The applicant called upon this court to stop this abuse by granting this application and thus refusing to hear further applications from the first respondent.

Unfortunately, the court has, so far, not been able to locate the file culminating into the order by default.

The court has had sight of the summons which only bears the company name as the respondent. The court has also had sight of the default judgment where the first respondent was now a party to the matter.

The court could not ascertain how the first respondent's name came to appear on that order.

Whether there was an application for joinder or not, the court is only left to guess.

In view of the above matter, it may be an in justice for the court, at this stage, to refuse to hear the first respondent on the matter.

It is only for the above reason that the court reluctantly dismissed the application for dismissal for want of prosecution. It is in the interest of justice that the above issue be interrogated.

It is my view, though, that, that issue is capable of resolution by hearing the application in terms of Rule 449 of the High Court Rules.

I am aware of other applications pending before this court. Hearing those applications may only increase legal costs. Such increase in legal costs can benefit neither of the litigants, moreso the applicant who continues to suffer costs in defending these numerous litigations.

In the result, it is ordered as follows;

1. The application for dismissed of HC Case No.11759/16 for want of prosecution be and is hereby dismissed.

2. Costs to be in the cause.

View Appeal
SC61-21 : COSMA CHIANGWA vs DAVID KATERERE and ROBERT CAMPBELL LOGAN and ISRAEL GUMUNYU and REGISTRAR OF DEEDS and EDMOND CHIVHINGE and MASTER OF THE HIGH COURT
Ruled By: BHUNU JA, MATHONSI JA and CHITAKUNYE AJA

This is an appeal against the whole judgment of the High Court (“the court a quo”) handed down on 15 June 2011 wherein the court a quo granted an application for a declaratur that the sale and transfer of Stand 382 Good Hope Township to the appellant was null and ...

FACTUAL BACKGROUND

The matter before the court a quo was a court application for a declaration of the sale and registration of Stand 382 Good Hope Township of Subdivision B of Good Hope into the appellant's name as being null and void.

In November 1999, the first respondent entered into an agreement of sale in terms of which he purchased an immovable property, namely, Stand 382 Good Hope Township of subdivision B of Good Hope, from the estate of the late Johanna Maria Francisca Logan as represented by the executrix testamentary of the estate.

The immovable property was transferred to the first respondent on 2 April 2007 by virtue of Deed of Transfer number 1597/2007.

On 1 October 2006, one Tsungirai Musenha and the appellant, represented by the third respondent, filed an application in the Magistrates Court, in Case No.12060/06, citing Robert Adrian Campbell-Logan, estate late Maria Johana Campbell-Logan, and the Registrar of Deeds as respondents.

They alleged therein that the second respondent had sold to them and they had purchased Stand Numbers 412 and 382 Good Hope Township of Subdivision B of Good Hope.

On 5 October 2006, a rule nisi was granted by the Magistrate's Court, interdicting the three (3) respondents and all those acting through them from disposing or transferring to anyone Stand Numbers 412 and 382 respectively being subdivisions of the remainder of subdivision B of Good Hope held under Deed Number 6180/95 pending the return date....,.

On 29 November 2006, the sixth respondent issued Letters of Administration appointing the third respondent as executor dative to administer the estate of the late Maria Johanna Francisca Campbell-Logan, for the sole purpose of effecting transfer of Stand Number 382 into the name of Cosma Chiangwa, (the appellant herein).

On 4 July 2007, Stand 382 was transferred into the name of the appellant by Deed of Transfer 4079/2007.

This prompted the application in the court a quo wherein the first respondent sought an order that the sale, registration, and transfer of the property in question to the appellant be declared null and void; that the appointment of the third respondent as executor dative of the estate of the late Maria Johanna Francisca Campbell-Logan be declared null and void; and that the first respondent be declared the sole owner of the property in question....,.

The appellant contended that the first respondent did not challenge or cause the suspension of the 'compellation order' authorizing transfer of the property in issue emanating from Case No.1206/06 granted by the Magistrates Court, in default, on 8 November 2006....,.

The court a quo found that the first respondent was not a party to the proceedings in that matter in which the interim interdict was granted hence the order could not bind him.

Appealed
HH122-11 : DAVID KATERERE vs COSMA CHIANGWA and ROBERT CAMPBELL-LOGAN and ISRAEL GUMUNYU and REGISTRAR OF DEEDS and EDMOND CHIVHINGE and MASTER OF THE HIGH COURT
Ruled By: MAVANGIRA J

In 1999, the applicant herein entered into an agreement of sale in terms of which he purchased an immovable property from the estate of the late Johanna Maria Fransisca Logan as represented by the executrix testamentary of the estate.

The immovable property, described as Stand 382 Good Hope Township of Subdivision B of Good Hope, was transferred to the applicant in April 2007 by Deed of Transfer number 1597/2007.

On or about 1 October 2006, one Tsungirai Musenha and the first respondent herein filed an application, as co-applicants, in the Magistrates Court in Case No.12060/06. They cited Robert Adrian Campbell-Logan (the second respondent herein), estate late Maria Johanna Campbell-Logan, and the Registrar of Deeds (the fourth respondent herein) as the first, second, and third respondents respectively.

They contended therein that the second respondent herein had sold to them and they had purchased Stands Numbers 412 and 382.

They further contended, that, the second respondent herein was avoiding them then for the purpose of passing transfer to them of the said properties.

On or about 5 October 2006, a rule nisi was granted by the Magistrates Court in the following terms:

“A Rule Nisi be and is hereby issued returnable to this honourable court on the…, day of…,. 2006 calling upon the first and second respondents to show cause, if any, why? (sic)

1. First, second, and third respondents, and all those acting through them, should not be barred from transferring to anyone other than first and second applicants Stand Numbers 412 and 382 respectively, being subdivisions of the remainder of subdivision B of Good Hope held under Deed Number 6180/95. (sic)

2. First, second, and third respondents should not be ordered to effect transfer of Stand 412 and 382 to first and second applicants Stand Numbers 412 and 382, respectively, being sub-divisions of the remainder of subdivision B of Good Hope held under Deed Number 6180/95. (sic)

3. First, second, and third respondents, and all those acting through them, should not be barred from disposing first and second applicants in any way of their occupation of Stand numbers 412 and 382 respectively. (sic)

4. First respondent should not be ordered to pay costs of this application. (sic)

INTERIM RELIEF:

1. Pending the return date, all respondents and all those acting through them be and are hereby interdicted from disposing or transferring to anyone Stand Numbers 412 and 382 respectively, being subdivisions of the remainder of sub-division B of Good Hope held under Deed Number 6180/95.”

On 8 November 2006, the magistrate granted default judgment in the same matter for an “interdict and compelling order” in favour of the applicants therein.

On 29 November 2006, the sixth respondent issued Letters of Administration appointing the third respondent as executor dative to administer the estate of the late Maria Johanna Fransisca Campbell-Logan, for the sole purpose of effecting transfer of “a certain piece of land situated in the District of Salisbury being a remainder of subdivision B of Good Hope, being Stand Number 382 measuring 2200 square metres into the name of Cosma Chiangwa.”

On 4 July 2007, the immovable property was transferred into the name of Cosma Chiangwa, the first respondent herein by Deed of Transfer 4079/2007.

The applicant now applies for an order in the following terms:

“1. That the sale to the first respondent, by the second respondent, of Stand 382 Good Hope is null and void. (sic)

2. That the registration of Stand 382 of Good Hope Township of Subdivision B of Good Hope into the name of first respondent is null and void. (sic)

3. That the appointment of the third respondent, as Executor Dative of the estate of the late Maria Johanna Fransisca Campbell-Logan, is null and void.

4. That the applicant is the sole lawful registered owner of Stand 382 Good Hope Township of Subdivision B of Good Hope.

5. That the fourth respondent shall, within 3 days of service of this Order upon him, delete the name of the first respondent from the name of the applicant as the registered owner of Stand 382 Good Hope Township of subdivision B of Good Hope. (sic)

6. That the first, second, third, and fifth respondents shall pay costs of these proceedings jointly and severally, the one paying the others to be absolved.”

In the main, the applicant contends, that, the appointment by the sixth respondent of the third respondent as the executor dative of the estate, during the lifetime of the executrix testamentary and during a period of time when the executrix testamentary was still holding office and was not incapacitated, is not valid in law....,.

The respondents, on the other hand, contend..., that the applicant has not challenged or caused the suspension of the “compellation orders authorising transfer of the property in issue emanating from Case No.1206/06 granted by the Magistrates Court.”

They contend that the court therein decided that the property belonged to the first respondent, and, until that order is suspended, this court cannot hear the applicant's case....,.

He further submitted, that, the limited Letters of Administration were issued pursuant to a compelling order issued by the Magistrates Court. As that order has not been set aside, and cannot be set aside in these proceedings, the applicant would need, first, to seek a nullification of that order if so advised.

He submitted, that, from the papers, it appears that having become aware of the order, the applicant neither sought rescission of it nor a declaratory order to the effect that it was obtained by fraud - if that be his contention.

He submitted the instant proceedings are certainly not the process by which the magistrate's order could be rescinded or set aside....,.

The rule nisi, in terms of which the Magistrates Court granted in favour of the first respondent, and another interim relief in the form of an interdict barring the disposal or transfer of the property in issue, has also been heavily relied on by the first respondent.

However, a perusal of the rule nisi reveals that no return day was endorsed.

Theoretically, therefore, even though the interdict was granted as interim relief, it is in effect for an indefinite period. That would be unconscionable and could not certainly have been the intention of the Magistrates Court.

In any event, the applicant was not a party to the proceedings in that matter.

SC77-21 : TRIANGLE (PRIVATE) LIMITED vs FUNGAI MUTASA (NO) and OTHERS
Ruled By: GARWE JA, MAVANGIRA JA and MAKONI JA

This is an appeal against the judgment of the Labour Court confirming, with an amendment, a ruling by a Labour Officer that the appellant was guilty of an unfair labour practice and that the appellant pays to each of the respondents arrear compensation due to them for the period March 2011 to September 2015.

The appellant seeks an order setting aside the confirmation, and, in its place, another order dismissing the application for confirmation with no order as to costs.

Having gone through the papers filed in this matter, and after hearing counsel, I am not persuaded that the Labour Court was, except for part of its order, wrong in confirming the ruling by the Labour Officer.

BACKGROUND FACTS

The first respondent herein, Fungai George Mutasa, is a Labour Officer to whom an allegation of unfair labour practice was referred by the second to the eleventh respondents (“the respondents”) (A.B. Morar, A.J. Bosch. E. Eston, E. Gavaza, A.J. Van Rensburg, R.T. Karidza, L. Mabika, D.I. Mackintosh, I. Middleton and Mushoriwa).

He unsuccessfully attempted to settle the matter by conciliation following which he then heard the parties in order to come up with a draft ruling in terms of section 93(5)(c) of the Labour Act [Chapter 28:01] (“the Act”).

The respondents are employed by the appellant and fall in what the appellant calls the E Band employment grade. The appellant is a wholly-owned subsidiary of Tongaat Hullett, a South African company.

In addition to the benefits they enjoyed in Zimbabwe, in terms of their conditions of employment commensurate with their grade, the respondents also enjoyed membership of the Tongaat Hullett Pension Fund, a South African registered pension fund as well as the Discovery Essential Saver Plan, which enabled them to access medical services in South Africa.

On 21 February 2011, the respondents were advised of the intention to terminate their entitlement to both the Pension Fund and the Discovery Essential Saver Plan with effect from 28 February 2011.

It was indicated, in that communication, that, the respondents would each be paid accrued benefits in cash or alternatively such benefits would be transferred to a retirement annuity or pension preservation fund held in each employees name with a registered entity of the employee's choice in South Africa. It was further indicated that the cost related to the current monthly fund contributions would be incorporated into each employee's monthly United States Dollar package in Zimbabwe with effect from 1 March 2011.

As regards the Discovery Essential Saver Plan, compensation was to be paid by incorporating the monthly member contributions, which translated to a hundred per cent contribution by Tongaat Hullett, into each employee's monthly United States Dollar package in Zimbabwe.

The exchange of correspondence between the parties reveals that the respondents made several follow-ups to have the compensation paid and the contributions incorporated into their cash packages.

This was to no avail.

The papers further show that the appellant demanded that the respondents move from the Triangle Senior Staff Pension Fund (TSSPF) to the Money Plan Pension Scheme to enable these benefits to be processed.

Owing to the stalemate, the respondents approached the High Court, and, in an order dated 26 February 2015, the court determined that the Triangle Senior Staff Pension Fund (TSSPF) remained valid and binding and that there was no obligation on the respondents to migrate to the Money Plan. The court consequently ordered the appellant to commence making its contributions and to actuate the Triangle Senior Staff Pension Fund (TSSPF). The appellant was further ordered to pay the costs of the application.

That order remains extant as it was not appealed against.

Notwithstanding that order, the appellant did not pay compensation or incorporate the monthly contributions into the employee's monthly United States Dollar package.

In their statement of claim before the Labour Officer, the respondents averred, that, in addition to benefits accruing in Zimbabwe, their conditions of service also provided for contractual entitlements to the Tongaat Hullett Pension Fund and the Discovery Essential Saver Plan, both of which were operational in South Africa.

They further averred, that, it was the appellant that undertook to pay to each employee the accrued fund benefits or to transfer such fund to a retirement pension preservation fund and to incorporate the monthly fund contributions into the cash packages in Zimbabwe.

They averred, further, that, the pension fund and Saver Plan were open to all employees in the E Band regardless of the nature of one's pension in Zimbabwe.

The decision not to pay the respondents was a punitive measure because the respondents had dared to assert their rights to membership of the Triangle Senior Staff Pension Fund (TSSPF) in the High Court.

The respondents further alleged, that, the appellant had accepted its obligation to compensate the respondents when it communicated its decision to terminate the two benefits.

The appellant had then proceeded to pay those employees who had agreed to join the Money Plan Pension Scheme in Zimbabwe but had then withheld compensation to the respondents.

They therefore submitted, that, by withholding the compensation, the appellant and its directors were guilty of an unfair labour practice.

They therefore asked for a ruling directing the appellant to cease the unfair labour practice and to pay the arrear compensation. They further averred that the amounts should be paid “without any additional tax losses” by them.

In its response to the complaint, the appellant stated that the benefits which formed the subject of the matter were availed as a measure to cushion the employees from the harsh economic situation obtaining in Zimbabwe at the time and that these benefits were being administered by Tongaat Hullett, a South African company and the holding company of the appellant.

The benefits did not become vested in the contracts of employment of the respondents and remained discretionary on the part of the holding company. Therefore, so the appellant argued, whatever obligations the holding company created pursuant to the grant of these benefits do not bind the appellant. The benefits were paid and administered by Tongaat Hullett, and, consequently, the appellant, as a subsidiary, had no obligation to actuate those benefits.

The appellant further submitted, that, any claims that had arisen more than two years before the hearing of the matter were prescribed in terms of section 94 of the Labour Act. In other words, if it was found that an unfair labour practice resulting in the underpayment of the respondents had taken place, then the monthly underpayments would constitute separate causes of claim.

In his analysis of the evidence and submissions made on behalf of the parties, the Labour Officer found that the letter of 21 February 2011 unequivocally placed an obligation on the appellant to compensate the respondents and to incorporate the monthly fund contributions and member contributions into the respondents United States Dollar cash package in Zimbabwe with effect from 1 March 2011.

He further found, that, the fact that the pension fund was administered by another agency other than the appellant itself did not mean the employees were employed by that agency.

He therefore concluded that the payment of compensation of accrued benefits was a right.

This was moreso given the fact that the other employees in the same grade as the respondents, who had migrated to the Triangle Money Plan, have accessed their pension fund contributions and have had their Saver Plan incorporated into their monthly cash package in Zimbabwe.

On the question of prescription, he found, that, as the parties had been communicating over the issue, the matter was of a continuous nature and therefore the claim had not become time-barred.

Lastly, he found, that, when the appellant's Managing Director wrote to the respondents, at no stage did he indicate that he was not writing on behalf of the appellant and that he was doing so on behalf of the holding company.

Consequently, he concluded, that, by withholding the benefits, the appellant was guilty of an unfair labour practice. He therefore ordered that the appellant cease such unfair labour practice and pay individual arrear compensation to each of the respondents.

PROCEEDINGS BEFORE THE LABOUR COURT

Having made the above draft ruling, the Labour Officer referred the same to the Labour Court for confirmation in terms of section 93(5)(a) of the Labour Act.

In its submissions before the Labour Court, the appellant argued that the Labour Officer had grossly erred in finding that the benefits, the subject of this matter, had become vested in the contracts of employment entered into by the respondents. The benefits remained discretionary on the part of Tongaat Hullett.

It further argued that whatever obligations Tongaat Hullett may have created were not binding on the appellant, a mere subsidiary.

Lastly, the appellant submitted that the Labour Officer had misdirected himself in not finding that some of the claims by the respondents had prescribed.

Having submitted their complaint to the arbitrator in September 2015, the respondents would only have succeeded on those claims that had arisen after September 2013, i.e. within the period of two years from the date when the unfair labour practice or dispute arose. The monthly underpayments would have constituted separate causes of action. Therefore, the pensions claimed from March 2011 to September 2013 would have become prescribed.

In their submissions before the Labour Court, the respondents stated as follows:

The appellant was attacking findings of fact made by the Labour Officer. There was no allegation that such findings were irrational.

On prescription, they submitted that the unfair labour practice was continuing at the time the matter was referred to the Labour Officer and that, in terms of section 94(2) of the Labour Act, the claims had not prescribed.

The Labour Court agreed with the Labour Officer, but for a different reason; that the unfair labour practice was continuing and therefore the claim was not prescribed in light of section 94(2) of the Labour Act.

The court agreed with the other factual findings made by the Labour Officer but was of the view that the order directing the Managing Director and Board of Directors to effect payment was irregular as they had not been heard before the order was made.

The court accordingly confirmed the draft ruling but amended it to remove the reference to the Managing Director and Board of Directors from the order.

HH94-16 : THE MILTON GARDENS ASSOCIATION and SYRIL MUPANGURI vs TECLA MVEMBE and CHAMPION CONSTRUCTORS (PVT) LTD and REGISTRAR OF DEEDS, HARARE and THE SURVEYOR GENERAL
Ruled By: DUBE J

This is an application for rescission of a default judgment granted under HC7398/11.The application is brought in terms of Rule 449.

The first applicant is an association of members and will hereinafter be referred to as The Association.

Its members purchased Stands at a property known as Newark of Hilton of Subdivision in Waterfalls, (hereinafter referred to as Newark). The second applicant is the chairperson of The Association.

The first respondent is the original owner of Newark and will hereinafter be referred to as Mrs. Mvembe.

The second respondent is Champion Constructors (Pvt) Ltd, a land developer.

The third and fourth respondents are cited in their official capacities.

The facts of this matter reveal a drawn out battle for the control of Newark.

On 6 November 2000, Mrs. Mvembe sold Newark to Max Management (Pvt) Ltd (hereinafter referred to as Max). The company obtained a subdivision permit and created Stands and sold them.

Mrs. Mvembe was to be paid from proceeds of the sale of the Stands. Mrs. Mvembe retained some of the Stands.

The applicant's members began construction on the Stands. Max Management (Pvt) Ltd delayed in servicing and passing transfer of the Stands sold. There were allegations of double allocation of Stands and complaints of gross mal-administration resulting in numerous legal suits between the Stand holders and Max Management (Pvt) Ltd.

The problems resulted in the formation of the first applicant which was mandated to deal with the management of Newark.

Some 40 Stand holders issued summons against Max Management (Pvt) Ltd and Mrs. Mvembe, under HC5065/06, seeking an order compelling Mrs. Mvembe to complete servicing the Stands.

Mrs. Mvembe was to accept payment from the plaintiff. The matter was withdrawn.

Prior to this order, The Association had obtained a provisional order, under HC7312/06, against Max Management (Pvt) Ltd, Sandriver Properties, the Registrar of Deeds, and Mrs. Mvembe.

Mrs. Mvembe did not oppose the application.

A consent order was entered into between The Association and Max Management (Pvt) Ltd on 11 March 2008.

Mrs. Mvembe was not part of the consent order.

The parties agreed that Max Management (Pvt) Ltd would release and transfer the respective Stands to the purchasers upon payment of certain sums of money and The Association would take over the development project from Max Management (Pvt) Ltd.

On 15 April 2010, Max Management (Pvt) Ltd and the Association entered into an agreement of assignment wherein Max Management (Pvt) Ltd agreed to cede its rights, title, and interest in certain Stands in Newark to the first applicant.

Mrs. Mvembe was not involved in this arrangement.

Max Management (Pvt) Ltd struggled to pay the full purchase price for Newark.

On 1 May 2007, Mrs. Mvembe issued a notice to Max Management (Pvt) Ltd to remedy the breach. If it failed to pay outstanding monies from the purchase of Newark, within 30 days of the date of the letter, Mrs. Mvembe would cancel the agreement of sale.

Champion Constructors claims that it bought Newark from Mrs. Mvembe after she cancelled the agreement of sale in September 2007.

On 14 November 2011, Champion Constructors filed an application seeking transfer of Newark to it.

The applicants were not joined to the proceedings.

Mrs. Mvembe did not oppose the application resulting in default judgment being granted against her, the third, and fourth respondents under HC7398 /11.

The default judgement ordered the Registrar of Deeds to pass transfer of ownership from Mrs. Mvembe to Champion Constructors and the Surveyor General was ordered to cancel a general plan issued by him in respect of Newark whereby Stands were created and sold to members of the Association.

The order was premised on the supposed sale agreement of Newark between Mrs. Mvembe and Champion Constructors.

As soon as the applicants became aware of the default judgment, they instituted an urgent application for a provisional order, under HC10716/11, which was granted in their favor. The provisional order interdicted Mrs. Mvembe, the Registrar, or the Deputy Sheriff from signing and accepting any documents passing transfer of Newark. The Surveyor General and Director of Urban Planning were interdicted from implementing a new plan in place of the previous plan.

Sadly for the applicants, the provisional order was discharged, on 22 January 2014, on the basis of the following:

(a) That there was no evidence to rebut Mrs. Mvembe's allegation that she had cancelled the agreement of sale by virtue of a notice of cancellation to Max Management (Pvt) Ltd for non-payment.

(b) That Mrs. Mvembe was not a party to the consent order under HC7312/06 for the release and transfer of Stands to the purchasers of the Stands and takeover of the development project by the Association. Further, that the arrangement did not confer any obligations on Mrs. Mvembe - the owner of the property concerned.

(c) The assignment entered into by Max Management (Pvt) Ltd and the Association did not bind Mrs. Mvembe as transfer of the property was never made to Max Management (Pvt) Ltd and that it could not transfer or assign any rights to anyone in respect of the property. That Max Management (Pvt) Ltd could not legally transfer any rights to the first applicant's members without it having acquired ownership first.

(d) That there was nothing to prevent the resale to Champion Constructors.

(e) The default judgment of 14 September 2011 remained extant.

(f) That the Association and its members had no rights or interest to enforce against Mrs. Mvembe and Champion Constructors, the subsequent purchaser.

The applicants appealed the decision to the Supreme Court on the basis, mainly, that, the application before the court was an application for rescission of judgment and that the court had erred in refusing to rescind the default order of 14 September 2014. The applicants also intended to lead further evidence on appeal.

The matter was subsequently struck off the roll.

In this application, the applicants seek rescission of the default judgment of 14 September 2014.

The applicants claim that they and their members rights were adversely affected by the default judgment and seek its rescission and also seek to be joined to the matter.

They aver that both Mrs. Mvembe and Champion Constructors were aware that the default judgement would affect the applicants and that they had an interest in Newark and yet they were not cited and served with the application.

The applicants aver, that, since the default judgment, new and additional evidence has come to light, which, if it had been disclosed in HC7398/11, the order would not have been granted.

The applicants have attached to this application affidavits from legal practitioners who attended to the transfer of Newark to Max Management (Pvt) Ltd. The applicants contend that the affidavits reveal that the purchase price had been paid in full prior to the alleged cancellation of the agreement of sale and that the Mvembe/Champion Constructor's agreements of sale are fictitious.

The applicants submitted, that, they derive rights from the cession agreement that they entered into with Max Management (Pvt) Ltd.

The applicants further aver, that, its members are affected by the default judgment and that they have an interest in Newark that they can enforce against Champion Constructors (Pvt) Ltd and Mrs. Mvembe.

They submitted, that, had the applicants and its members been cited and served they would have opposed the application.

The applicants maintain, that, they have shown a case for rescission of judgment and for them to be joined in HC7398/11.

Only the second respondent defends the application.

The respondent challenged the fact that this application is being brought three and a half years after the default judgment. The respondent submitted, that, the applicants have always known about the order and that the purpose of Rule 449 is to expeditiously vacate an obviously erroneous order and that the applicants ought to have applied for condonation of late filing of the application for rescission of judgment.

It argued, that, the failure to seek condonation of the late filing of the application for rescission of judgement is fatal to the application and urged the court to dismiss the application.

On the merits, the respondent argued, that, the applicants have no cause of action against the respondent.

The respondent submitted, that, the applicants maintain that they derive rights from Max Management (Pvt) Ltd arising out of an assignment and yet Max Management (Pvt) Ltd is not a party to these proceedings or those sought to be re-opened.

The respondent maintained, that, for the applicants to bring themselves within the rubric at Rule 449, they must have a direct and substantial interest in the subject matter of the litigation and not merely a financial interest.

That the applicants have not shown that they have anything more than a financial interest in Newark.

The respondent submitted, that, the owner of the land did not participate in the assignment and she cannot be bound by it when she was not a party to it.

Further, that Max Management (Pvt) Ltd did not challenge the cancellation of the sale agreement, and, moreover, that the applicants do not have any rights against Champion Constructors (Pvt) Ltd but merely a personal right against Max Management (Pvt) Ltd.

The respondent further submitted, that, the applicants have sought rescission before and have not been granted that relief. They approached the Supreme Court arguing that the court should have allowed their application for rescission. The respondent did not pursue the challenge related to prescription....,.

I find that the delay in making this application was unreasonable. The applicants have, in the result, non-suited themselves.

Even if I am wrong in this approach, the applicants are going nowhere slowly as they seem not to have a cause of action against the respondents.

I find myself in an invidious position where I am required to go over the same issues as did MTSHIYA J.

The merits of this application have already been dealt with.

However, my view is that the applicants have not met the requirements of the application.

The purpose of the Rule is to allow a court to correct a judgment or order erroneously sought or granted, to apply to have it rescinded: see Theron NO v United Democratic Front and Ors 1984 (2) SA 532; Matambanadzo v Goven 2004 (1) ZLR 399 (S); Mutebwa v Mutebwa 2001 (2) SA 193.

One of the requirements of Rule 449 is that an applicant shows that he is “affected” by the judgment or order.

The authors HERBSTEIN and Van WINSEN, in The Practice of the High Courts of South Africa, 5th ed…, state, that, it is only a limited class of persons who are entitled to bring an application for an order setting aside or varying a judgment of court. The authors rely for this proposition on the case of United Watch and Diamond Co (Pty) Ltd and Ors v Disa Hotels Ltd and Anor 1922 (4) SA 409…, where the court said the following on locus standi:

“In my opinion, an applicant for an order setting aside or varying a judgment or order of court must show, in order to establish locus standi, that he has an interest in the subject matter of the judgment or order sufficiently direct and substantial to have entitled him to intervene in the original application upon which the judgment was given or order granted.”

MTSHIYA J was of the same view, that, the applicants have no direct and substantial interest entitling them to intervene in HC7398/11.

In his judgment, MTSHIYA J relies on SILBERBERG and SCHOEMAN, The Law of Property (Lexis Nexis-Butterworths) 5th ed for the requisites of transfer and he quotes from p73 as follows:

“The seller of a thing which does not belong to him or her must first acquire it for him or herself to then transfer it to the buyer…,.: in other words 'nobody gives something he does not have' (nemo dat qui non habet). This rule is based on the old Roman Law maxim 'no one can transfer more rights to another than he himself has (nemo plus iuristransferrepotest quam ipse habet)'. This may be described as the 'golden rule' of the law of property.”

The court relied on this position at law as the main basis of his judgment.

He observed, that, transfer of Newark was never made to Max Management (Pvt) Ltd and that Max Management (Pvt) Ltd could not transfer or assign any rights to anyone in respect of the property.

I agree with the concerns raised by MTSHIYA J in HH20-14 with respect to Max Management (Pvt) Ltd's and the applicants rights and interests. On p14 of the cyclostyled judgment, he notes the following:

“It should further be noted, that, the consent order of 11 March 2008 was the final position prior to this court's order of 14 September 2011.

The consent order took note of what had transpired up to that date. That order, in my view, cancelled all previous arrangements, except that it failed to recognise that Max had no rights to assign to anyone. It was only the second respondent who could assign rights. However, notwithstanding the fact that the parties knew that the second respondent held title to the property, no responsibility/obligation was placed on her.

Without the participation of the second respondent the said consent order could not be implemented.

The same applied to the purported agreement of assignment of 15 April 2010 concluded between Max and the applicant. In the absence of title and clear rights, Max had nothing to cede.

That point should have been revealed to the court before the consent order was granted. The applicant acknowledges that Max, a developer of the property, had no title…,.: the applicant's members have no relationship whatsoever with the second respondent (Mrs. Mvembe). They are at liberty to claim their monies from Max.”

The applicants allege that they derive rights from Max Management (Pvt) Ltd through the assignment.

The agreement of sale was entered into between Max Management (Pvt) Ltd and Mrs. Mvembe. The owner of the property is Mrs Mvembe - and remains so. Nevertheless, when the agreement of assignment was entered into, the owner of the property was not involved.

An assignment of rights can only be valid if it involves the creditor, who, in this instance, is the owner of the property concerned.

The assignment could only have any legal standing with the involvement of the owner of the property concerned. The assignment cannot bind the owner, and, hence, there is no relationship between the applicants and the owner.

The property had not been transferred to Max Management (Pvt) Ltd and it had no rights with respect to the property which it was capable and entitled to cede or transfer because it had not received transfer from the original owner.

Ownership of property can only be transferred where the transferor has title - the applicants have no legal rights arising out of the assignment. They have no rights to enforce and they have not established any justification for the relief sought.

What complicates this application is that Max Management (Pvt) Ltd has not contested the cancellation of the agreement of sale and Mrs Mvembe has not opposed this application.

I am alive to the fact, that, the first applicant's members, were, at the time of the default judgment, in occupation of some of the undivided Stands and that members of the applicant bought Stands in Newark and paid for them.

This interest amounts to merely a financial interest.

They have a personal right against Max Management (Pvt) Ltd which they can enforce against Max Management (Pvt) Ltd.

I am unable to find, that, the applicants have shown the existence of sufficiently direct and substantial interest to warrant rescission of the default order.

Having found that the applicants have no substantial interest in the subject matter of these proceedings, I will not delve into the merits of this application.

In the result, it is ordered as follows:

The application is dismissed with costs on an attorney client scale.

SC07-17 : CHRIS STYLIANOU and FRED DRIVER AND SONS (PVT) LTD and D.R. HENDRY (PVT) LTD vs MOSES MUBITA AND 25 OTHERS
Ruled By: GWAUNZA JA, GUVAVA JA and BHUNU JA

This is an appeal against the entire judgment of the Labour Court sitting at Bulawayo, handed down on 18 January 2010. After reading documents filed of record and hearing counsel, we made the following order:“IT IS ORDERED:1. The appeal be and is hereby allowed.2. There shall be no order as ...

“IT IS ORDERED:

1. The appeal be and is hereby allowed.

2. There shall be no order as to costs.

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

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

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

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

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

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

The factual background to the matter is as follows:

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

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

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

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

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

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

The parties reached an agreement before this deadline.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

I will proceed to deal with the issues as outlined.

Whether or not the court a quo erred in making an order against the first appellant

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

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

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

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

This concession, we find, was properly made.

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

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

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

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

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

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

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

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

The appeal therefore succeeds in this respect.

HH391-17 : ANDREW PASCOE vs MINISTRY OF LANDS & RURAL RESETTLEMENT and W. BUNGU and THE ATTORNEY GENERAL N.O.
Ruled By: FOROMA J

This is an urgent chamber application in terms of which the applicant seeks the following relief as set out in the provisional order:“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. That, it be and ...

This is an urgent chamber application in terms of which the applicant seeks the following relief as set out in the provisional order:

“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. That, it be and is hereby declared, that, the letter of Mr A Tsimba, in his capacity as Acting Provincial Resettlement Officer, Mashonaland East Province drawn on the 10 May 2017 for the Ministry of Lands and Resettlement providing an eviction/vacate date and cessation of possession, occupation, use and all farming activities on Plots 3 and 5 of Ivordale Farm by 30 June 2017 is null and void and of no force or effect on account that, in its effect and implementation, it violates sections 68 and 69 of the Constitution of Zimbabwe and section 3 of the Administrative Justice Act [Chapter 10:28].

2. That, it be and is hereby declared that applicant, his agents, representatives, invitees and employees are entitled to the continued possession, occupation and use of the whole of subdivision 2 of Ivordale in the Goromonzi District of Mashonaland East Province measuring approximately 449.792ha (“the property”) until such time as a final determination has been rendered with regard to applicant's review proceedings and relief in HC12727/16.

3. That respondents, jointly and severally, the one paying the other to be absolved, pay the costs of this suit.

INTERIM RELIEF

Pending the determination of this matter, applicant is granted the following relief:

(a) That first and second respondents and all other persons acting through them be and are hereby interdicted from interfering with applicant's farming operations, possession, and control of movable and immovable property including livestock on Subdivision 2 of Ivordale in the Goromonzi District of Mashonaland East Province measuring approximately 449.792ha, as reflected in applicant's offer letter dated 16 July 2014, incorporating as it does newly depicted Plots '3' and '5' as set out in a subdivision plan drawn by officers in the 1st respondent Ministry and fresh offer letters in favour of 2nd respondent and an unknown person.

(b) That, it be and is hereby declared that the interim relief granted by his Lorship, Mr Justice Chitapi, in favour of the applicant, on 11 January 2017, in HC12511/16, shall continue to apply until such time as a final determination is made by the High Court in regard to the validity of the withdrawal of applicant's offer letter and downsizing of applicant's property.”

The application was opposed and was heard before me on 5 June 2017....,.

On the merits, counsel for the applicant submitted, that, the applicant had satisfied the requirements of an interim interdict and that in regard to the fear of harm actual or imminent she emphasised the significance of the events of 29 May 2017, in particular, the opinion as allegedly expressed i.e. that the letter contained a notice to cease farming operations and activities on subdivisions for Plot 345.

The applicant further argued, that, unless the interdict was granted, the applicant risked suffering irreparable loss of the winter wheat crop, and, if ejected, the pending review application, if eventually successful, would become of academic value only if not brutum fulmen.

She argued further that the applicant did not have an alternative satisfactory remedy to the interim interdict.

She therefore submitted, that, the respondents had to be stopped in their tracks by the grant of the paragraph (a) of the interim relief per provisional order after the applicant abandoned paragraph (b) of the interim relief sought.

The first and second respondents opposed the application and stressed, that, the respondents did not regard the letter, dated 10 May 2017, as a Court Order, and thus did not intend to act upon it to eject the applicant as suggested by the applicant.

They also argued that the application was not necessary in the light of CHITAPI J's judgment granting a Spoliation Order to the applicant.

They therefore, on that basis, sought the dismissal of the application....,.

The letter of 10 May 2017, from Tsimba, the Acting Provincial Resettlement Officer Mashonaland East, addressed to the applicant, reads as follows:

“Re: Cut-Off Date of Occupation and Farming Activities at Plot 3 & 5 Ivordale Farm Goromonzi

Reference is made to the above.

You are advised, that, the cut-off date of your occupation and farming activities at Plot 3 & 5 Ivordale is 30 June 2017 which was reached after assessment of your farming activities in the stated submissions on 9 February 2017. You have to confine your farming activities in sub-division 4 of Ivordale Farm measuring 247.09 hectares which was allocated to you. After 30 June, no further activities by you at plot 3 & 5 of Ivordale Farm will be entertained.”

After listening to the parties submissions, l make the following findings:

(i) The interim relief of a spoliation order granted to the applicant by CHITAPI J, in HC12511/16, is extant and all respondents are bound by it as the provisional order has not been discharged.

HH801-22 : EQUITY PROPERTIES (PVT) LTD vs AL SHAMS GLOBAL BVI LIMITED and REGISTRAR OF DEEDS N.O.
Ruled By: MANGOTA J

I set HC6264/21 down for hearing. The hearing was scheduled for 20 June 2022. At the hearing, the applicant, which was the respondent in the case, raised a preliminary point. It did so through counsel.

Its in limine matter was that the first respondent (“the respondent”) which was the applicant in the court a quo did not file its Heads within the dies which TSANGA J issued to the parties on 4 February 2022. It insisted that the respondent was barred and could not, therefore, be heard until it unbarred itself.

The respondent opposed the preliminary point which the applicant raised.

It admitted that it did not file its Heads within the dies. It claimed that it had agreed with the applicant, that, both parties would file their respective Heads outside the order which the court issued to them.

It unsuccessfully applied to uplift the bar.

Following the submissions of the parties, I remained of the view, that, both of them flouted the order of TSANGA J.

I decided that they were both barred and were, therefore, improperly before me. I, accordingly, struck HC6264/21 off the roll and ordered that each party meets its own costs.

The decision which I made constitutes the applicant's cause of action. It filed this application for leave to appeal the same.

It attached to the application its draft notice and grounds of appeal. It remains of the view, that, I should not have made a finding which was/is to the effect that it was barred. It insists, that, it could not file its Heads without the respondent having filed its Heads first. It claims, that, once the respondent was barred, it no longer had any obligation to file Heads or any further pleading other than to apply that default judgment be entered against the respondent.

It, accordingly, moves me to grant leave to it to appeal.

The respondent opposes the application for leave to appeal. It insists, that, the appeal has no merit, and, therefore, has no reasonable prospects of success.

It alleges, that, both the applicant and it were improperly before the court. Both parties, it asserts, were in contempt of court by virtue of not obeying the court order which directed them to file their respective Heads within certain time-frames.

It argued, through counsel, that, Part XVI of the High Court Rules 2021 deals with such applications as the one which the applicant placed before me. It placed reliance on Rule 94(8) as read with sub-rules (1) and (2) of the same Rule of court which subrules it claims are peremptory.

It asserts, that, the application for leave, which, according to it, does not comply with the mandatory rules of court, is fatally defective and must therefore be dismissed with costs.

An application for leave to appeal places the judge before whom it is placed in an invidious position.

The applicant, it would appear, will be inviting the judge to review his own decision.

The judge who takes the position of reviewing his own work falls into an unfortunate situation where, at the hearing, he is tempted to make common cause with the respondent.

He should make every effort not to be tempted to agree with the respondent at the detriment of the applicant. He should, at all times, endeavor to be as objective as he humanly can.

His guiding rod in the determination of such an application as the present one is whether or not the applicant has reasonable prospects of success on appeal: Pichanic N.O. v Paterson 1993 (2) ZLR 163 (H); Afrikaanse Pers Beperk v Oliver 1949 (2) SA 890.

Whether or not the application is defective on the alleged ground, which is to the effect that the applicant did not comply with Rule 94 of the rules of court, will unfold itself upon an analysis of the said Rule as well as on a proper interpretation of the same.

Sub-rule (8) of Rule 94 of the rules of court is relevant.

Its import is, that, where leave to appeal is necessary in respect of a judgment given in a civil court, sub-rules 1–7 of the Rule shall apply to an application for leave to appeal…, as if the words 'Prosecutor-General' there were substituted the word 'respondent'.

Sub-rule (1) of Rule 94 of the High Court Rule stipulates, that, where leave to appeal is sought, the applicant:

(a) May apply, orally, immediately after judgment has been entered against it: and

(b) Should state his grounds for the application.

Sub-rule (2) of Rule 94 is to the effect, that, where the applicant has not made an oral application in terms of sub-rule (1), he may file with the Registrar a written application within twelve days of the date of the judgment. The written application must, according to the proviso which is in the sub-rule, state the reasons why the application was not made in terms of sub-rule (1) of Rule 94 of the rules of court.

It is on the strength of the abovementioned sub-rules of Rule 94 of the High Court Rules 2021 that the respondent argued that the application was/is defective.

It submitted, that, the applicant violated sub-rules (1) and (2) as well as the proviso to sub-rule (2) of Rule 94. It insists, that, both sub-rules are peremptory and should, therefore, have been complied with to the letter and spirit.

The respondent's contention, it has been observed, is that the application for leave is defective.

I disagree.

Whilst it is agreed that Rule 94 of the High Court Rules relates to applications for leave to appeal, the Rule is not peremptory as the respondent would have me believe. It is optional or discretionary. Its use of the word 'may' in each subrule says it all.

It only becomes peremptory in paragraph (b) of sub-rule (1).

It becomes mandatory in the sense, that, once the applicant has taken the option to apply orally for leave to appeal, he is enjoined by the Rule to state, as well as record, his grounds of the application as part of the record. The net effect of paragraph (a) of sub rule (1) of Rule 94 of the High Court Rules is that he is at liberty to apply or not to apply orally for leave to appeal.

Equally of importance to the applicant is the discretion which sub-rule (2) of Rule 94 confers upon him.

He may, or may not, file a written application with the Registrar where he has not exercised his right to apply for leave to appeal under sub-rule (1) of Rule 94 of the rules of court. However, where he chooses to exercise his right in terms of Rule 94(2), the proviso to the Rule imposes upon him certain conditions which he must comply with. He must, for instance, state the reason why he refrained from exercising his option in terms of sub-rule (1) of Rule 94. He must also state the proposed grounds upon which he contends that leave to appeal should be granted to him.

What is evident, from a reading of sub-rules (1) and (2) of Rule 94 of the rules of court is that the applicant has a choice to pursue his options under either of the subrules - but not both. What is also clear is that, the moment he takes the one or the other sub-rule, his performance under his chosen sub-rule becomes peremptory leaving him with no choice but to act in accordance with the route which he has taken.

The Rule remains silent where he does not pursue his rights in terms of either sub-rule (1) or sub-rule (2).

It follows, in my view, that, he can choose not to follow the one or the other of the two sub-rules, as the applicant did in casu, and still be able to apply for leave to appeal under the common law.

The question which begs the answer is: can the application which he filed outside Rule 94 of the rules of court be suggested to be defective?

I think cannot.

The application remains as valid as the one which an applicant files under Rule 94 of the High Court Rules 2021. This application cannot, therefore, be said to be defective. It is within the law, so to speak.

For the applicant to succeed in its application for leave to appeal, it must demonstrate that it has reasonable prospects of success on appeal.

In laying down the test of reasonable prospects of success, the authorities were only stating the obvious. The obvious is, that, it would be a waste of the time of the court, and that of the respondent, if the applicant were to appeal just for the fun of it. An appeal which is filed without the applicant's serious intention to test the correctness or otherwise of the decision of the court a quo is frivolous and vexatious. No court will sanction an application which relates to such an appeal.

The context of this application is relevant.

The context is that, on 4 February 2022, TSANGA J, before whom the parties appeared, set specific time-lines within which they were to file their respective papers in preparation for the hearing of the matter. This was scheduled to take place at 10am of 28 March 2022. The learned judge directed, among other directions, that:

(a)…,.

(b)…,.

(c) The applicant a quo shall file its Heads on 16 February 2022; and

(d) The respondent a quo (applicant in casu) shall file its Heads on 2 March 2022.

That both parties filed their respective Heads outside the above-mentioned timelines requires little, if any, debate.

In deciding as I did, I remained alive to the fact, that, the directions of TSANGA J are, no doubt, an order of court which the parties had no choice but to obey.

I was further persuaded by case authority which discussed the issue which the parties had placed before me.

It is, for instance, trite, that, when a court order provides a time limit within which to do something…, such time limits ought to be followed. Failure to comply with such time limits leads to lapsing of the rights conferred therein: The Sheriff of the High Court of Zimbabwe v Madziro & Ors HH670-15.

It is a plain and unqualified obligation of every person against, or in respect of whom the order is made by the court of competent jurisdiction to obey it, unless and until that order is discharged; and, as is known, two consequences flow from that obligation:

(i) The first one is that anyone who disobeys an order of court is in contempt and may be punished by committal or attachment or otherwise.

(ii) The second is that no application to court by such person will be entertained unless he has purged himself of his contempt: Artiknson v Artkinson (1952) 2 All ER 567 (CA).

By not complying with the order of TSANGA J, both the applicant and the respondent were, no doubt, in contempt of the court order.

None of them could therefore be heard unless it purged itself of the contempt.

I found the applicant's finger-pointing at the respondent to have been made without any serious intention on its part. This was a fortiori the case given that it did not, on its part, make any effort to live within the four corners of the court order which the learned judge issued to the respondent and it.

The applicant premised the preliminary point which it raised on the order of TSANGA J. It did not rest it on the rules of court as it seems to suggest in its Heads. It submitted, that, the respondent did not comply with the order of TSANGA J.

Its reliance on Rule 59(21) of the rules of court is, therefore, misplaced.

Because it referred me to the order of the learned judge, the decision which I made was not premised on the rules of court. It rested on the order of the court.

The specific time-lines which the learned judge dished out to the parties aimed, in my view, at preparing them for the hearing which had been scheduled for 28 March 2022 at 10am. Their belated filing of Heads had an adverse effect on the hearing of the application. It was only fortuitous that it was not heard on the date to which it had been set down.

I found the conduct of the parties, both of whom were/are ably legally represented, to be wanting in the extreme sense of the word.

The applicant's reference to Rule 59(21) of the rules of court imports a new dimension into the equation of the decision which I made in June 2022.

The dimension centers on what parties to a case should comply with between an order which the court, properly constituted, issues to them, and the law as stipulated in the rules of court. Which of the two laws, in other words, must give way to the other.

The dimension raises jurisprudential issues which only the superior court can clarify for the benefit, not only of the court, but also of litigants.

It is on the mentioned score that I remained persuaded to grant leave to the applicant to prosecute its appeal. The prosecution of the same will, no doubt, enhance the development of the law and the court's appreciation of the same.

The application is, in the premise, granted as prayed.

Appealed
CC07-21 : MARX MUPUNGU vs MINISTER OF JUSTICE, LEGAL AND PARLIAMENTARY AFFAIRS and OTHERS
Ruled By: GWAUNZA ACJ, GARWE JCC, MAKARAU JCC, GOWORA JCC, HLATSHAWAYO JCC, PATEL JCC and GUVAVA AJCC

The order that was granted by the High Court was against the judges of this Court in their acting and not in their substantive capacities as judges of this Court.

Appealed
CC07-21 : MARX MUPUNGU vs MINISTER OF JUSTICE, LEGAL AND PARLIAMENTARY AFFAIRS and OTHERS
Ruled By: GWAUNZA ACJ, GARWE JCC, MAKARAU JCC, GOWORA JCC, HLATSHAWAYO JCC, PATEL JCC and GUVAVA AJCC

MAKARAU JCC:This is an application in terms of section 175(3) of the Constitution of Zimbabwe, for the setting aside in its entirety, of a High Court declaratory order handed down on 15 May 2021. The order, issued in respect of two distinct and separately filed applications, invalidated certain conduct by ...

MAKARAU JCC:

This is an application in terms of section 175(3) of the Constitution of Zimbabwe, for the setting aside in its entirety, of a High Court declaratory order handed down on 15 May 2021. The order, issued in respect of two distinct and separately filed applications, invalidated certain conduct by the President as unconstitutional. This it allegedly did in the first of its two parts.

Background

We summarise the facts giving rise to this application from the two applications that were filed in the High Court under case numbers HC2128/21 and HC2166/21, respectively. The facts are not complex.

The facts of this application coalesce, and relevantly so, around 15 May 2021 when the Chief Justice, Judge Malaba, reached the age of seventy. A few days before that date, on 7 May 2021 to be precise, the Constitution of Zimbabwe Amendment (No.2) Act (No.2 of 2021) came into force.

Among other provisions, it amended section 186 of the Constitution to provide for the tenure of judges in the following terms:

“(1) The Chief Justice and the Deputy Chief Justice hold office from the date of their assumption of office until they reach the age of seventy years, when they must retire unless before they attain that age they elect to continue in office for an additional five years;

Provided that such election shall be subject to the submission to, and acceptance by the President, after consultation with the Judicial Service Commission, of a medical report as to their mental and physical fitness so to continue in office.

(2) Judges of the Constitutional Court are appointed for a non-renewable term of not more than fifteen years; but

(a) They must retire earlier if they reach the age of seventy unless, before they attain that age, they elect to continue in office for an additional five years:

Provided that such election shall be subject to the submission to, and acceptance by the President, after consultation with the Judicial Service Commission, of a medical report as to their mental and physical fitness so to continue in office.

(b) After the completion of their term, they may be appointed as judges of the Supreme Court or the High Court, at their option, if they are eligible for such appointment.

(3) Judges of the Supreme Court hold office from the date of their assumption of office until they reach the age of seventy years, when they must retire, unless, before they attain that age, they elect to continue in office for an additional five years:

Provided that such election shall be subject to the submission to, and acceptance by the President, after consultation with the Judicial Service Commission, of a medical report as to their mental and physical fitness so to continue in office.

(4) Notwithstanding subsection (7) of section 328, the provisions of subsections (1), (2) and (3) of this section shall apply to the continuation in office of the Chief Justice, the Deputy Chief Justice, Judges of the Constitutional Court and Judges of the Supreme Court.”

Acting in accordance with the provisions of section 186 of the Constitution, as amended, the Chief Justice exercised the option to extend his tenure of office beyond the age of seventy for an additional five years.

By letter dated 11 May 2021, the seventh respondent, the President, accepted a medical report as to the mental and physical fitness of the Chief justice to continue in office.

The third (Musa Kika), fourth (Young Lawyers Association of Zimbabwe) and fifth (Frederick Mutanda) respondents formed the firm view, that, the seventh respondent (the President), by accepting the medical report, that the Chief Justice was mentally and physically fit to so continue in office, had subverted the correct constitutional position.

They filed the two applications in the High Court that we have detailed above, challenging the continuation in office of the Chief Justice for an additional five years beyond 15 May 2021.

In his application, the third respondent (Musa Kika), in addition to the Chief Justice, cited as respondents all the judges of the Supreme Court and some judges of the High Court.

At the time of the filing of the application, the five judges of this Court, other than the Chief Justice and the Deputy Chief Justice, were Supreme Court judges, acting as Supreme Court judges and were cited as such. Substantive appointments to this Court were made subsequent to the filing of the applications a quo but before the hearing of this application....,.

At the end of the hearing of the applications, as indicated above, the court a quo issued a singular order in the following terms:

“IT IS DECLARED THAT:

1. The second respondent in HC2128/21 who is also the second respondent in HC2166/21 ceased to hold the office of the Chief Justice of Zimbabwe and judge by operation of law on 15 May 2021 at 4:00 hours.

2. The extension of the length of time in the office of the judge beyond the age of seventy provided for in section 186 of the Constitution does not apply to the second to fourteenth and eighteenth respondents.

3. There shall be no order as to costs.”...,.

Whilst materially and correctly so, the third respondent (Musa Kika) averred in his application, that, the Chief Justice had opted to exercise the option introduced by the amendment, no such averment was made in respect of any or all of the other judges who were cited as respondents under case number HC2128/21....,.

It is common cause, that, the third respondent did not, and correctly so, allege that any of the judges of this Court, in their respective capacities as Acting Constitutional Court judges, or as substantive judges of this Court for that matter, had exercised the option, as had the Chief Justice, to continue in office for an additional five years after they each attained the age of seventy.

Perchance, for a myriad of reasons, some of the judges may not exercise the option.

Clearly, there was no evidence placed before the High Court that one or more of the judges had an intention of so doing at the time the application a quo was filed.

A necessary and material averment to complete the cause of action against the judges, other than the Chief Justice, was therefore missing.

Thus, whilst the cause of action against the Chief Justice may have been complete, it was not in respect of the other judges - even for the declaration of any future or contingent rights of the judges.

In the absence of a sustainable cause of action against the judges, the citing of the judges and the order sought against them was not only unwarranted but was also incompetent and undeserved....,.

There is a discernible disconnect between the manner in which the judges were cited and the relief that was sought against them.

Whilst the judges of this Court were cited nomine officio as Supreme Court judges, albeit acting as Constitutional Court judges, the relief sought was claimed against them personally and individually. Indeed, the order sought has since followed them individually and collectively to this Court.

Furthermore, we emphasise the point, that, at the time when the orders a quo were handed down, i.e. on 15 May 2021, five of the judges of this Court were substantive judges of the Supreme Court while acting as judges of the Constitutional Court. Subsequently, they were appointed as substantive judges of this Court on 20 May 2021, after section 186 of the Constitution was amended and after the above-mentioned orders were handed down.

Consequently, as of that date, the judgment and orders a quo would have ceased to have been applicable to or binding upon them in their personal capacities. There was therefore no legitimate basis for seeking their recusal in the present matter as their personal rights and interests, then or in the future, could no longer have been in issue.

Finally, and, in any event, an interpretation of section 186 of the Constitution in a suit against the Chief Justice alone would have been binding on all other similarly circumstanced judges.

This is a trite position at law.

The relief sought a quo was an interpretation of the Constitution which is binding on all persons as it is a declaration of what the law is. There was thus no need to cite, in addition to the Chief Justice, the judges of this Court, or any other judge for that matter, in the application a quo.

On the basis of the above, we venture to suggest, that, the legally inelegant citation of the judges a quo, and the subsequent application for the recusal of this entire Bench on the basis of such, was not made in good faith but merely to place this court in an exceedingly embarrassing position.

We find, therefore, that, the citing of the judges of this Court, a quo, was both procedurally and substantively maladroit.

CC08-21 : ZIMBABWE BANKS AND WORKERS UNION and TIRIVANHU MARIMO vs MINISTER OF PUBLIC SERVICE, LABOUR AND SOCIAL WELFARE and THE SHERIFF OF ZIMBABWE and ZB BANK LIMITED
Ruled By: GARWE AJCC, GOWORA AJCC and HLATSHWAYO AJCC

This is an application for direct access to the Constitutional Court made in terms of section 167(5) of the Constitution as read with Rule 21 of the Constitutional Court Rules 2016 (“the Rules”).

The applicants intend to approach the Constitutional Court in terms of section 85(1) of the Constitution, seeking an order, that, the fundamental right of every person to form and join trade unions and employer-employee organisations of their choice and to participate in the lawful activities of those organisations, enshrined in section 65(2) of the Constitution of Zimbabwe 2013, has been and is being infringed by employers in respect of employees who are duly elected or appointed workers representatives and trade union leaders to the extent, that, the employers in question are permitted, by law, to dismiss such employees for acts performed bona fide and exclusively as the employee's duties and responsibilities as a workers representative and trade union leader.

The court finds, that, it is not in the interests of justice that direct access be granted in this matter. The reasons for so finding appear hereunder.

FACTUAL BACKGROUND

This application is borne of the Supreme Court judgment in ZB Bank Ltd v Marimo SC21-20. The background to that decision is set out hereunder.

The second applicant was employed by the third respondent as an Administrative Clerk and was also the chairperson of the workers committee. The management of the third respondent and the workers committee were engaged in a dispute over employees salary increments. The dispute was referred to a conciliator who was unable to get the parties to reach a consensus and issued a Certificate of No Settlement. Thereafter, between 8 and 15 September 2010, the second applicant sent out emails to his colleagues disclosing, through actual salary figures, the percentage adjustments that had been effected to the managerial employees salaries. He also stated that the workers committee had decided to embark on a collective job action to press their interests.

Pursuant to that conduct, the third respondent charged the second applicant with misconduct for contravening section 11(1) of SI 273 of 2000 (“the Code”). The allegations against him were that he had acted in a manner that was inconsistent with the fulfilment of the express or implied conditions of his contract. The premise to the charge was that the second applicant had generated offensive emails to a group of staff members contrary to the third respondent's standing policy contained in its Information Security Management Policy Document ('IT Policy Document'). It was also alleged, that, the contents of the e-mails were inflammatory and contained confidential information. The second applicant was found guilty of the misconduct and dismissed from employment.

He noted an appeal to the NEC Appeals Board, which held that the conduct complained of did not constitute an offence.

The Appeals Board further found, that, the third respondent had not substantiated the allegations relating to the charge preferred against the second applicant. Accordingly, it held that the charge preferred against the second applicant was inappropriate.

It stated, further, that, although the second applicant exceeded the limit of the number of emails allowed by the third respondent's IT Policy Document, thereby breaching the appellant's standing policy, the emails were neither inflammatory nor offensive, and that confidentiality had not been breached.

It also stressed, that, the second applicant's conduct was in pursuit of a right to represent workers and that the emails were meant to result in a call for collective job action or, at least, put pressure on the appellant to accede to the workers wage demands. The NEC Appeals Board consequently ordered the reinstatement of the second applicant.

Aggrieved by that decision, the third respondent appealed to the Labour Court.

It averred, that, the Appeals Board erred in failing to find that the second applicant had been properly charged and dismissed from employment, and, further, that the Appeals Board had erred in failing to afford to the third respondent an alternative to the reinstatement of the second applicant.

The Labour Court found, that, as the employees were considering going on strike over the wage dispute, the second applicant acted within the bounds of his official duties, as the chairperson of the workers committee, to communicate developments pertaining to the intended strike to his fellow employees. The court, however, stated, that, although the second applicant may have gone 'overboard' by breaching the appellant's Information Security Policy, the breach did not warrant a dismissal. Consequently, the third respondent's appeal was dismissed.

The third respondent subsequently noted an appeal to the court a quo.

Although three issues stood for determination, the relevant issue germane to the disposal of the present application was couched as follows:

“Whether the court a quo erred in failing to appreciate that the respondent's conduct in violating the standing regulations was a breach of his privileges as the representative of the workers committee and could therefore not be excused.”

It had been the third respondent's argument, that, in exercising his entitlement to champion employees rights, the second applicant did not have the right to breach the law - in this case, the standing policy in question.

It was the court a quo's finding that there was merit in that contention.

The court further held, that, the right to champion workers rights is not exercised in a vacuum but should be exercised within the confines of the law as dictated, in this case, by the relevant Code of Conduct.

Adherence to the law within the Code of Conduct would ensure that the delicate balance between the competing interests of the employer and those of the workers, through their representatives, is maintained. It was further held, that, the second applicant would not be able to hide behind his position as the chairperson of the workers committee should the conduct alleged against him be proved. The court a quo further held, that, the second applicant had indeed violated the third respondent's IT Policy Document by disclosing confidential information. The appeal was consequently allowed.

Aggrieved by that finding, the applicants filed the present application on 1 April 2021.

At the hearing of the application, the first respondent was barred for failure to file any opposing papers in the matter.

Thereafter, the Court indicated to the parties, that, notwithstanding the preliminary points raised by the third respondent, it would hear all the parties and make a determination on the merits.

APPLICANTS SUBMISSIONS BEFORE THIS COURT

The applicants make the following argument.

Every person enjoys a fundamental right to form and join trade unions and employee or employers organizations of their choice and to participate in the lawful activities of those unions or organisations. They contend further, that, this right has been and is being infringed by employers in respect of those employees who, as duly elected or appointed workers representatives and trade union leaders, are charged with misconduct and dismissed from employment under a Code of Conduct for acts performed bona fide and exclusively as the employee's duties and responsibilities as a workers representative and trade union leader.

The contention is also put forward, that, in having a law that permits an employer to dismiss from employment an employee for acts performed under the aforementioned circumstances, the State is infringing the fundamental right protected by section 65(2) of the Constitution.

Lastly, the allegation is made, that, the current Labour Law, as interpreted by the court a quo, as was done in the judgment a quo and others, is inconsistent with section 65(2) of the Constitution.

The applicants argued, that, two questions arose for determination and these related to:

(i) Whether or not the applicants were raising a constitutional matter; and

(ii) Whether or not it was in the interests of justice to grant direct access.

Counsel for the applicants further submitted, that, there was no doubt that the applicants sought to raise a constitutional issue and that it was in the interests of justice to approach the Constitutional Court because it was not desirable that they approach the High Court in order to impugn the decision of the Supreme Court with regards to trade union immunity.

They further submitted, that, the matter involved a critique of a Supreme Court decision, and, as such, it was not desirable for it to go before the High Court for determination.

The applicants also submitted, that, they had a prima facie or arguable case as the Supreme Court did not apply its mind to the long standing position on trade unions enjoying their immunity in terms of section 101 of the Labour Act [Chapter 28:01] (“the Labour Act”).

They argued, that, within the workplace, employers were regulating the way union leaders conduct themselves and that this was improper conduct on the part of employers generally.

In this light, the applicants submitted, that, there were prospects of success in that the Supreme Court's decision went too far in protecting the employer at the expense of the employee which aspect should be dealt with by a full bench of this Court.

THIRD RESPONDENT'S SUBMISSIONS BEFORE THIS COURT

The application was opposed by the third respondent.

In limine, it averred, that, the intended application is a disguised appeal against a final judgment of the court a quo. It was also contended, that, not having been a party to the proceedings a quo, the first applicant has no right to question the correctness of that judgment.

The submission is also made, that, the applicants are not clear as to the law which they seek to challenge.

The third respondent further submitted, that, the application is out of time because it was made ten months after the judgment a quo was handed down and that the applicants ought to have made an application for condonation.

On the merits, it was argued, that, section 65(2) of the Constitution did not support the applicants contention and that, further to the above, an employee has a duty to comply with the terms of their employment contract and that an employees representative must carry out their duties in a lawful manner.

The third respondent further queried the rationale behind its joinder to the present proceedings.

The third respondent also argued, that, the applicants were not challenging the validity of section 101 of the Labour Act but were actually challenging the common law. It submitted, that, the Supreme Court did not, anywhere in its judgment, refer to the Labour Act, but, rather, dealt with a position of the law embodied in the Code of Conduct.

Thus, argued the third respondent, there was no constitutional matter for adjudication before the Constitutional Court, and, that, the Constitutional Court, in terms of its jurisdiction, is restricted to determine constitutional issues only.

The third respondent, further to the above, also argued, that, an employee cannot hide behind a trade union and be free of the employer's disciplinary tentacles for breaching a Code of Conduct. This would lead to a situation wherein every employee would then want to be ascribed to the union in an effort to evade disciplinary proceedings for acts of misconduct. In this light, the third respondent stated that it had acted within its powers.

Consequently, it was submitted, that, the matter did not give rise to a constitutional matter. It was a matter that the High Court could deal with taking into account its original jurisdiction.

For that reason, it was contended, that, it was not in the interests of justice to grant direct access. It moved that the application be dismissed with costs....,.

WHETHER OR NOT THE FIRST APPLICANT IS PROPERLY BEFORE THE COURT

The third respondent..., has argued that it stood to reason that since the first applicant was not a party to the proceedings a quo, it lacked the locus standi to bring this application. It is contended, that, the first applicant does not have the right, at law, to question the correctness of the judgment a quo.

The Constitutional Court finds no merit in this argument.

The applicants are not seeking leave to appeal but rather leave for direct access.

The first applicant is a trade union. The second applicant is one of its members. In establishing locus standi, the first applicant avers, that, it seeks to approach the court in terms of section 85(1)(e) of the Constitution which provision allows an association, acting in the interests of its members, to approach the Constitutional Court to vindicate fundamental rights of its members.

Its absence from the proceedings a quo is of no moment in the circumstances of this case.

In an application such as this, the overriding consideration is whether or not the first applicant has established, that, in the application, it is enforcing or promoting the rights of its members as contended.

An analysis of the application will show, that, the first applicant, in the main application, is seeking the vindication of the rights of its members qua employees against those of the employer on the premise that section 101 of the Labour Act [Chapter 28:01] is inconsistent with section 65(2) of the Constitution.

It is the view of the Constitutional Court, that, the first applicant has shown that it has a direct and substantial interest, as a union, in seeking to vindicate the rights of its members.

The point by the third respondent, as to the standing of the first applicant, is without merit and must be dismissed.

CC11-21 : LIZIWE MUSEREDZA and 385 OTHERS vs MINISTER OF AGRICULTURE, LANDS, WATER AND RURAL RESETTLEMENT and MAPARAHWE PROPERTIES (PVT) LTD and OTHERS
Ruled By: GWAUNZA DCJ, GARWE JCC, MAKARAU JCC, GOWORA JCC, HLATSHWAYO JCC, PATEL JCC and UCHENA AJCC

After hearing argument on the preliminary point whether the applicants required leave of the court to bring their application, the court ruled that leave was necessary.

Having been filed without leave, the matter brought by the applicants was struck off the roll with no order as to costs with the court indicating that its reasons would follow in due course.

I now set these out.

The matter is an application in terms of the then Rule 449 of the High Court Rules 1971, now Rule 29 of the High Court Rules 2021, as read with Rule 45 of the Constitutional Court Rules 2016 (“the Rules”).

Rule 449 of the High Court Rules provided:

“449 Correction, variation and rescission of judgments and orders

(1) The court or a judge may, in addition to any other power it or he may have, mero motu or upon the application of any party affected, correct, rescind, or vary any judgment or order —

(a) That was erroneously sought or erroneously granted in the absence of any party affected thereby; or

(b) In which there is an ambiguity or a patent error or omission, but only to the extent of such ambiguity, error or omission; or

(c) That was granted as the result of a mistake common to the parties.

(2) The court or a judge shall not make any order correcting, rescinding or varying a judgment or order unless satisfied that all parties whose interests may be affected have had notice of the order proposed.”

This rule of the High Court is applicable in this Court by virtue of the provisions of Rule 45 of the Constitutional Court Rules.

There is no equivalent of Rule 449 of the High Court Rules in the Constitutional Court Rules or in the rules of the Supreme Court.

The applicants seek the rescission of an order of this Court dated 18 November 2015 on the basis that the order, handed down with the consent of the parties to that suit, was sought and granted in error and in the absence of the applicants who are adversely affected by it.

They further contend, that, they bring the application in terms of section 167(5)(a) as read with section 176 of the Constitution of Zimbabwe.

Section 167(5)(a) of the Constitution provides for the enactment of rules for this Court to allow litigants, when it is in the interests of justice, with or without leave of the court, to bring matters directly to the Constitutional Court whilst section 176 of the Constitution grants this court inherent powers to protect and regulate its own processes.

I shall advert to these two sections of the Constitution in detail below.

Factual Background

The applicants allegedly reside on a piece of land in the District of Hartley known as Kingsdale of Johannesburg. I note, in passing, that the exact nature of each applicant's tenure on the land in dispute was not described in the founding affidavit.

Fleeting mention is however made in the opposing affidavit that the applicants may be occupying the land as beneficiaries of the land reform programme that was undertaken by the State commencing in the year 2000.

The tenure of each applicant on the land in question was however of no import in the determination of the preliminary point.

Kingsdale of Johannesburg was agricultural land, owned by one Pieter Nicholas Nel (“Nel”), now deceased and represented herein by the fourth respondent, Adam James Hartnack.

In or about 2015, the land was identified for acquisition by the State under the Land Acquisition Act [Chapter 20:10] and processes to acquire the land were put underway.

The acquisition of the land was contested.

At the time the current Constitution became operative in 2013, Kingsdale of Johannesburg, together with other pieces of agricultural land, had been listed in Schedule 7 of the repealed Constitution.

The significance of such listing is to be found in section 72(4)(a) of the Constitution which provides, that, ownership of all agricultural land which was itemized in Schedule 7 to the former Constitution continues to be vested in the State.

Following litigation brought by the second respondent herein, Maparahwe Properties (Private) Limited, Pieter Nicholas Nel and five others over the nature and ownership of the land, which litigation commenced before the Constitution became operative, this Court, with the consent of the parties in case Number CC43-15, issued an order declaring that Kingsdale of Johannesburg is private land.

In consequence thereof, the first respondent herein, the Minister of Agriculture, Lands, Water and Rural Resettlement, was ordered to withdraw his or her acquisition of the land under the Land Acquisition Act and to publish such withdrawal in the Government Gazette and in the Herald Newspaper within 14 days of the order.

It was further declared, that, ownership of the land vested in the second respondent, Maparahwe Properties (Private) Limited, which had purchased the land from Pieter Nicholas Nel during his lifetime.

The order authorized the second respondent herein to proceed with its development of the land into urban residential stands.

I reproduce the order in full:

“1. Kingsdale Housing Cooperative Society Limited be and is hereby joined to these proceedings as the second respondent.

2. It is declared that the applicant's right under section 68(1) of the Constitution of Zimbabwe to fair, just and prompt administrative action has been violated.

3. It is declared that Kingsdale of Johannesburg measuring 161,8238 hectares in the District of Hartley is private land.

4. Consequently, it is ordered that:

4.1. The first respondent be and is hereby ordered to withdraw its acquisition of land aforesaid and shall cause the publication of such withdrawal in the Government Gazette and the Herald Newspaper within fourteen (14) days of this order.

4.2. The land aforesaid vests in the first applicant who shall proceed with urban development of the said land up to the issuance of title surveys in accordance with permits issued or to be issued by the relevant town planning authority.

4.3. Any agreements of sale between first applicant and any other person as of the 26th February 2015 (the date of purported acquisition) remain valid and enforceable.

4.4. All persons, with the exception of the second respondent's registered members as at 12 November 2013, in illegal occupation or possession of any portion of the said land forthwith vacate the land failing which the Sheriff of Zimbabwe or his lawful Deputy be and is hereby authorized to eject them.

4.5 The First applicant hereby donates to the Government of Zimbabwe twenty-one (21) hectares of land in the area covered by Garikai/Hlalani Kuhle Housing Scheme and ZESA Servitudes.

4.6 The first applicant shall develop the land in terms of paragraph 4.2 above and the members of the second respondent, and persons referred to in paragraph 4.3 above, shall compensate the first applicant for the remaining land measuring 140 hectares at US$5 per square metre in accordance with the terms of a Deed of Settlement to be signed by the parties and incorporated in the order of the Administrative Court.

5. Each party to bear its own costs.”

Contending, that, the declaration by this Court, under paragraph 3, and the consequential relief granted under paragraph 4 of its order, are unconstitutional as they violate the provisions of section 72(4)(a) of the Constitution, the applicants approached this Court as detailed above.

To support the contention, it was argued, that, this Court cannot override or ignore the express provisions of the Constitution on what is and is not State land.

By virtue of being itemized under Schedule 7 of the repealed Constitution, it was argued, Kingsdale of Johannesburg remained and is State land. In the circumstances of the matter, the argument proceeded, it was clearly an error for this Court to declare, as it did, that the land is private land.

Strongly believing, and still arguing at the hearing of the application, that such was not necessary, the applicants legal practitioner and counsel did not seek leave of this Court as is provided for in Rule 21(1) of the Constitutional Court Rules.

The non-observance of the provisions of Rule 21(1) of the Constitutional Court Rules gave rise to the preliminary point taken by the respondents as to whether the application was properly before the court.

The precise issue that arose for the determination of the Constitutional Court was whether leave of the Constitutional Court, in accordance with Rule 21(1) of the Constitutional Court Rules is required for an application for the setting aside of an order of this Court under Rule 449 of the High Court Rules 1971 as read with Rule 45 of the Constitutional Court Rules.

As indicated above, the Constitutional Court ruled that such leave is a pre-requisite.

The Arguments

Counsel for the fourth respondent (Executor, Estate of Late Pieter Nicholas Nel) made the simple point, that, the matter before the court, being an application in terms of Rule 449 of the High Court Rules, is not listed in Rule 21 of the Constitutional Court Rules as one that does not require leave of the court before it is instituted.

He invoked the expressio unius est exclusio alterius maxim to buttress his argument in this regard.

By invoking the expressio unius est exclusio alterius maxim, counsel for the fourth respondent (Executor, Estate of Late Pieter Nicholas Nel) was, in essence, arguing that the Constitutional Court Rules are exhaustive, and, consequently, if a matter has been excluded from the list of matters for which leave is not required, then leave is always required.

Correctly understood, the argument by counsel for the fourth respondent represents a narrow view of the inter-play between the exclusive jurisdiction of this Court and the right to access that jurisdiction directly and without leave.

The view point is not fully reflective of and is not borne out by the practice of this Court.

There are matters that are not listed in Rule 21 of the Constitutional Court Rules as not requiring leave and for which leave is not necessary. Examples of such matters are applications for joinder of parties for instance, or for the consolidation of causes already before the court. These primarily are cases that routine and arise incidentally during the determination of causes properly before the court.

I will advert to such matters in detail below.

Submitting that the point in limine was well taken, counsel for the second respondent (Maparahwe Properties (Pvt) Ltd) associated himself fully with the arguments advanced by counsel for the fourth respondent (Executor, Estate of Late Pieter Nicholas Nel) and made no additional submissions.

Counsel for the applicants, on the other hand, strongly argued, that, leave of the court, in the circumstances of this application, was unnecessary. He made three distinct submissions:

(i) Firstly, he argued, that, in matters where this Court has exclusive jurisdiction, leave to trigger that jurisdiction is not required.

Also focusing on Rule 21 of the Constitutional Court Rules, he argued, that, it becomes an illogical interpretation of the rule for leave to be sought where the court is the only court that can determine the matter. In this vein he pointed, and indisputably so, to the fact that this Court is the only court that has jurisdiction in this matter, as only this Court can rescind its own decision as prayed for in the draft order.

(ii) Secondly, and as an offshoot of the first argument, counsel for the applicants argued, that, it is only in instances where this Court enjoys concurrent jurisdiction with other courts that the notion of leave arises and may become necessary.

He argued, that, in such circumstances, for one to avoid or bypass the other equally competent courts and gain direct access to this Court, as a general rule, one can only do so with leave.

Direct access then becomes an indulgence in the discretion of the court.

In contrast, he continued, where this Court is the only available forum, access to that court is not and should not be an indulgence but a right.

(iii) Finally, and to counter the invocation of the maxim expressio unius est exclusio alterius by counsel for the fourth respondent, counsel for the applicants submitted, that, the rules of this Court are not exhaustive and were not drafted to be so or with the intention that they be so.

Correctly understood, the argument by counsel for the applicants advocates very liberal direct access to this Court in matters where it is the only court that can determine the matter. Such direct access must be without leave.

Thus, he argued, that, establishing prospects of success beforehand, a necessary element to be satisfied in an application for leave for direct access, has no place in a matter where the court has exclusive jurisdiction.

Direct access to argue the merits of the matter must not be hindered or obstructed.

In this regard, he relied on the remarks of this Court in Meda v Sibanda and Ors 2016 (2) ZLR 232 (CC) where it was held in respect of a section 85(1) application that:

“It is clear from a reading of section 85(1) of the Constitution, that, a person approaching the Court in terms of the section only has to allege an infringement of a fundamental human right for the Court to be seized with the matter. The purpose of the section is to allow litigants as much freedom of access to courts on questions of violation of fundamental human rights and freedoms with minimal technicalities. The facts on which the allegation is based must, of course, appear in the founding affidavit.

Whether or not the allegation is subsequently established as true is a question which does not arise in an enquiry as to whether the matter is properly before the Court in terms of section 85(1).”

The Law and Analysis

The jurisdiction of a court and access to that jurisdiction are two distinct legal precepts. The two are complementary but are not synonymous. They are not to be conflated. They have their foundations in two different laws.

The jurisdiction of a court is to be found in substantive law while access to that jurisdiction, and the conduct of litigation in that court, are part of the adjectival law.

Broadly stated, particularly in civil matters, substantive law defines the rights, duties, and obligations of the parties and the court that has the competence to define those rights, duties, and obligations and where they lie. On the other hand, adjectival law lays out the practical procedural steps necessary for the injured party to enforce those rights and obtain appropriate remedies or redress.

The law governing direct access to this Court, with or without leave, is adjectival law. It is the law of practice and procedure.

The law governing access to this Court is to be found largely in the Rules of this Court and less in the provisions of the Constitution setting out the jurisdiction of this Court.

The jurisdiction of this Court is provided for in section 167(1) of the Constitution as follows:

“(1) The Constitutional Court –

(a) Is the highest court in all constitutional matters, and its decision on those matters bind all other courts;

(b) Decides only constitutional matters and issues connected with decisions on constitutional matters, in particular, references and applications under section 131(8)(b) and para 9(2) of the Fifth Schedule; and

(c) Makes the final decision whether a matter is a constitutional matter or whether an issue is connected with a decision on a constitutional matter.”

The Constitution then proceeds, in section 167(2), to provide for the four matters where only the Constitutional Court has jurisdiction.

I pause, momentarily, to underscore, that, the Constitution does not provide specifically when one can bring such matters, or any other constitutional matter, directly and without leave, to the Constitutional Court.

It instead provides in section 167(5) of the Constitution that:

“(5) Rules of the Constitutional Court must allow a person, when it is in the interests of justice, and, with or without leave of the Constitutional Court –

(a) To bring a constitutional matter directly to the Constitutional Court;

(b) To appeal directly to the Constitutional Court from any other court;

(c) To appear as a friend of the court.”

Still digressing, I note, that, this is the section that counsel for the applicants relied on to argue that direct access to this Court, without leave, for an application in terms of Rule 449 of the High Court Rules is guaranteed.

I am unable to read his argument in the section.

My reading of the section is that it merely enables the promulgation of Rules of the court to provide for direct access to the court, with or without leave, when it is in the interests of justice to allow such access.

Prior to the promulgation of the Rules of this Court, GWAUNZA JCC…, observed, in Prosecutor-General v Telecel Zimbabwe (Private) Limited CC10-15 that:

“Except for the specific instances stipulated in section 167(1)(b) and section 167(2)(b),(c) and (d), section 167 does not elaborate as to who, on what conditions, or how, a party may approach the Court for it to exercise the jurisdiction conferred upon it by that provision.”

Her Ladyship continued:

“Thus, section 167(1), apart from the paragraphs mentioned, does not confer on anyone the right to approach the Constitutional Court directly, even if they have, or perceive themselves to have a constitutional matter needing the Court's determination.”…,.

I again hasten to mention, that, by design, the matters that GWAUNZA JCC…, specified as requiring no leave before institution have been listed, amongst others, as such in Rule 21 of the Constitutional Court Rules.

Whilst awaiting the promulgation of the Constitutional Court Rules, the Constitutional Court, using its inherent jurisdiction, as granted to it by section 176 of the Constitution, set the practice that such matters required no prior leave.

With the promulgation of the Constitutional Court Rules, the position of the law is that, whilst the Constitution provides for the jurisdiction of the court, in section 167, it leaves the development of the adjectival law regulating direct access to that jurisdiction, with or without leave, to the Constitutional Court Rules.

It is a rule of common law, and an entrenched part of our practice and procedure, that, matters are to be brought before the court in accordance with the rules of that court.

The remarks of PATEL JCC in Marx Mupungu v The Minister of Justice, Legal and Parliamentary Affairs CC07-21 are apt. He wrote:

“One cannot institute an action or application in the High Court, or any other court, without due observance of and compliance with the Rules of that court. The Rules inform a litigant of what is required of him to access the court concerned. If he fails to observe or comply with those Rules, he will inevitably be non-suited.”

Litigation in this Court is no exception.

If anything, constitutional litigation has developed its own practice and procedures, distinct from civil procedure in the other courts of the land, the fine nuances of which litigants and legal practitioners alike must familiarize themselves with.

Rule 21(1) of the Constitutional Court Rules provides that:

“21(1) The following matters shall not require leave of the Court -

(a) Disputes concerning an election to the office of President or Vice President;

(b) Disputes relating to whether or not a person qualified to hold the office of President or Vice President;

(c) Referrals from a court of lesser jurisdiction;

(d) Determinations on whether Parliament or the President has failed to fulfil a constitutional obligation;

(e) Appeals in terms of section 175(3) of the Constitution against an order concerning the constitutional validity or invalidity of any law.

(f) Where the liberty of an individual is at stake;

(g) Challenges to the validity of a declaration of a State of Public Emergency or an extension of a State of Public Emergency.”

But, as correctly argued by counsel for the applicants, the Constitutional Court Rules are not exhaustive.

The Constitution, in section 167, defines the jurisdiction of this Court. This is in respect of the subject matter that can be brought before the court.

In section 176, it grants this Court inherent jurisdiction to protect and regulate its own processes. Matters that will then arise procedurally from the exercise of this inherent jurisdiction to protect and control its processes are naturally in the exclusive jurisdiction of this Court.

I give examples of such matters elsewhere in this judgment.

Whilst the Constitutional Court Rules have provided that matters that are in the exclusive jurisdiction of the Constitutional Court, by virtue of section 167 of the Constitution, among others, do not require leave, they have not similarly provided for procedures that are in the exclusive jurisdiction of the Constitutional Court by virtue of section 176.

Whilst the Constitutional Court Rules have not included procedural matters that may arise during the litigation of a constitutional matter in the list of matters for which no leave is required, it stands to reason, that, no leave of court is required before such matters are raised.

Applications for postponement, for joinder of parties, for amendment of notices and papers filed with the court, for consolidation of matters before the court, and for the recusal of one or more members of the court, among others, fall into this category.

Self-evidently, it would be an illogical reading of Rule 21 of the Constitutional Court Rules to say that leave is required before such applications are made merely because they have not been specifically included in the list of matters for which no leave is required in terms of Rule 21 of the Constitutional Court Rules.

Applied to the matters that are in this category, there is therefore some cogency in counsel for the applicant's argument, that, for matters where the court is the only court that can determine the issue, leave is not required.

But, this rule, if it may be called that, is limited only to instances where the matter to be determined arises in the course of litigation and from the exercise of the power of the court to protect and control its processes.

The issue must be procedural.

Applications for the setting aside of extant orders under Rule 449 of the High Court Rules 1971 do not arise during the course of litigation.

But, that is not all.

Applications for leave for direct access under Rule 21 of the Constitutional Court Rules serve a dual purpose:

(i) Firstly, in matters where this Court enjoys concurrent jurisdiction with other courts, they serve to satisfy the court that it is in the interests of justice that this Court act as a court of first instance. In all other matters, applications for leave to access the court directly serve to satisfy the court that it is in the interests of justice for it to determine the matter at all.

(ii) The second purpose has a gate-keeping function. It acts to sieve matters that this Court must, in the interests of justice, determine and those that it should not - even if it is the only court that has jurisdiction in the matter.

As discussed above, an application to this Court, in terms of Rule 449 of the High Court Rules as read with Rule 45 of the Constitutional Court Rules, is in the exclusive jurisdiction of this Court by operation of the law of practice and procedure. This is so because only this Court can correct or vary its own order sought or given in error and in the absence of a party adversely affected by the order.

Such an application is sui generis in a number of respects.

Whilst it is brought to set aside an extant order of the court, it, in essence, seeks to bring before the court new facts or fresh legal argument for consideration.

This is so because the applicants have perforce to allege that a material fact or law was not brought to the attention of the Constitutional Court and was therefore not considered by it before it made the order that is under challenge.

In casu, evidence of the “new” fact was sought to be led through the founding affidavit in the form of the Government Notice that listed the land in dispute.

The new matter that the applicants wish the court to determine is therefore the effect of this new evidence on the ownership of the land in dispute.

Secondly, the application is not between the same parties who were before the court in the matter that resulted in the extant order. It is brought by applicants who, again, perforce have to allege that they were not before the court when the order was granted. It therefore introduces not only a new matter but new parties.

These two aspects distinguish the application in casu from the application that was before the Constitutional Court in President of the Senate and Another v Gonese and Another CC01-21, a case that counsel for the applicants made reference to.

In that case, leave of the court was not required even if the matter was not listed in Rule 21 of the Constitutional Court Rules as a matter for which no leave is required.

The Constitutional Court, in that matter, held that, the application was a continuation of the cause or application that had been before the court and involved the same parties.

For these reasons, contrary to the submissions by counsel for the applicants, that case is not of any assistance to the applicants whose circumstances are different.

The practice of this Court, therefore, is that, where a litigant wishes to bring a new and fresh cause and the matter is not listed in Rule 21 of the Constitutional Court Rules as one for which leave is not required, then, leave must be sought even if the matter is in the exclusive jurisdiction of the court. The practice is based on and highlights the gate-keeping function of an application for leave.

A reading of the decided cases from this jurisdiction shows, that, the prime concern of the Constitutional Court is that direct accessibility to the Constitutional Court, without leave, should be limited to where it is in the interests of justice.

The concern is thus against opening the floodgates by using applications for leave as a filtering mechanism.

“The filtering mechanism for leave for direct access effectively prevents abuse of the remedy. The rules requiring leave for direct access ensure, that, the power of constitutional review is exercised by the court in reviewable cases only:” per MALABA CJ in Lytton Investments (Private) Limited v Standard Chartered Bank Zimbabwe Limited and Another CC11-18.

Disposition

Regarding costs, the court did not see any justification for departing from its general practice of not making an order of costs in favour of any of the parties. None of the parties prayed for an order of costs.

It is for the above reasons that the matter was struck off the roll with no order as to costs.

CC01-22 : LIZIWE MUSEREDZA and 303 OTHERS (LISTED) vs MINISTER OF AGRICULTURE, LANDS, WATER AND RURAL RESETTLEMENT and MAPARAHWE PROPERTIES (PRIVATE) LIMITED and OTHERS
Ruled By: GOWORA JCC, HLATSHAWYO JCC and PATEL JCC

This is an application for leave for direct access to the Constitutional Court brought in terms of section 167(5)(a) of the Constitution as read with Rule 21 of the Rules of the Constitutional Court 2016.

The applicants are a group of persons residing on a piece of land over which the second respondent claims ownership. They intend to approach the Constitutional Court, under section 24 of the Constitutional Court Act 2021, for the rescission of a judgment of the Constitutional Court issued under CC43-15.

BACKGROUND FACTS

The applicants are residents on a piece of land described as a certain piece of land situated in Hartley District, being Kingsdale of Johannesburg, measuring 161,8238 hectares.

In 2001, the State gazetted the land described above, and, through that process, compulsorily acquired it under the land reform programme. In support, the applicants have attached to their papers an Extraordinary Government Gazette dated 22 June 2001 confirming the acquisition. The applicants contend, that, consequently, title to the land is vested in the Government of Zimbabwe.

Further, the applicants claim, that, they were allocated stands on the piece of land under the programme. However, they have not produced any documents to the Court to sustain their claim.

The applicants claim, that, unbeknown to them, the first to ninth respondents (Minister of Agriculture, Lands, Water and Rural Resettlement, Maparahwe Properties (Pvt) Ltd, Kingsdale Housing Co-operative Society Ltd, Executor, Estate of Late Pieter Nicholas Nel, Hardwork Chiminya, Givemore Dube, Pretty Kurera, Spiwe Matambo and Executor, Estate of Late Sibangani Kokera) obtained an order by consent under CC43-15.

The second respondent (Maparahwe Properties (Pvt) Ltd) was permitted, in terms of that order, to obtain necessary permits have the land surveyed and to sell any Stands to any other party or parties. They allege, that, as a result of this, and contrary to their wishes, they entered into agreements of sale in respect of their individual Stands. Thus, the second respondent erroneously continues to hold itself as the owner of the piece of land to their prejudice.

The parties are agreed that the following facts are common cause.

In 2001, the piece of land described above was gazetted for acquisition under the land reform programme. It is common cause that the Administrative Court set aside the acquisition in 2003.

On 2 October 2013, this Court set aside the acquisition of the piece of land following its further gazetting in 2005. This order was followed by an order obtained by consent under CC43-15, the causa for the application in casu. This order, issued on 18 November 2015, was in the following terms:

“IT IS ORDERED BY CONSENT THAT:

1. Kingsdale Housing Cooperative Society Limited be and is hereby joined to these proceedings as the second respondent.

2. It is declared, that, the applicants right under section 68(1) of the Constitution of Zimbabwe to fair, just, and prompt administrative action has been violated.

3. It is declared, that, Kingsdale of Johannesburg, measuring 161,8238 hectares in the District of Hartley, is private land.

4. Consequently, it is ordered that:

4.1 The first respondent be and is hereby ordered to withdraw its acquisition of land aforesaid and shall cause the publication of such withdrawal in the Government Gazette and the Herald Newspaper within fourteen (14) days of this order.

4.2 The land aforesaid vests in the first applicant who shall proceed with urban development of the said land up to the issuance of title surveys in accordance with permits issued or to be issued by the relevant town planning authority.

4.3 Any agreement of sale between first applicant and any other person, as of 26 February 2015 (the date of purported acquisition), remains valid and enforceable.

4.4 All persons, with the exception of the second respondent's registered members as at 12 November 2013, in illegal occupation or possession of any portion of the said land forthwith vacate the land failing which the Sheriff of Zimbabwe or his lawful Deputy be and is hereby authorised to eject them.

4.5 The first applicant hereby donates to the Government of Zimbabwe twenty–one (21) hectares of land in the area covered by Garikai/Hlalani Kuhle Housing Scheme and ZESA Servitudes.

4.6 The first applicant shall develop the land in terms of para 4.2 above, and the members of the second respondent and persons referred to in para 4.3 above shall compensate the first applicant for the remaining land measuring 140 hectares at US$5 per square metre in accordance with the terms of a Deed of Settlement to be signed by the parties and incorporated into the order of the Administrative Court.

5. Each party to bear its own costs.”

It is common cause, that, the applicants have entered into separate agreements of sale in respect of the individual Stands that each applicant occupies.

The applicants contend, that, the judgment issued under CC43-15 should be set aside.

They place reliance for this contention on section 24 of the Constitutional Court Act [Chapter 7:22] (“the Act”). They allege that the judgment was granted in their absence. They allege that the judgment was granted in error as the land is State land following its acquisition in 2001.

They further allege, that, they were forced, by circumstances, into purchasing from the second respondent the Stands allocated to them under the land reform programme pursuant to the judgment.

They contend that they have been, and continue to be, prejudiced by the erroneous order in CC43-15.

On the premises stated above, the applicants approach the Constitutional Court for leave to have the judgment under CC43-15 rescinded.

Rescission is sought on the basis, that, the judgment was erroneously sought or granted.

The applicants aver, that, the land in question was State land and remains State land under section 72(4)(a) of the Constitution due to its listing in Schedule 7 of the former Constitution in 2005. The parties erred in not bringing this fact to the attention of the Constitutional Court at the hearing.

The applicants contend, that, the judgment is unconstitutional as it is contrary to section 72(4)(a) of the Constitution.

They argue, that, none of them was party to the consent order under CC43-15.

THE REQUIREMENTS FOR LEAVE FOR DIRECT ACCESS

The Constitutional Court is a specialised court with jurisdiction to hear only deserving cases. Direct access to the Court is an extraordinary procedure granted in deserving cases that meet the requirements set out in the rules of the Court.

Rule 21(3) of the Rules of the Constitutional Court 2016 requires that an applicant for leave for direct access to the Constitutional Court must show that it is in the interests of justice for access to be granted by the Court. Thus, Rule 21(3) of the Constitutional Court Rules provides as follows:

“(3) An application in terms of subrule (2) shall be filed with the Registrar and served on all parties with a direct or substantial interest in the relief claimed and shall set out —

(a) The grounds on which it is contended that it is in the interests of justice that an order for direct access be granted; and

(b) The nature of the relief sought and the grounds upon which such relief is based; and

(c) Whether the matter can be dealt with by the Court without the hearing of oral evidence, or, if it cannot, how such evidence should be adduced and any conflict of facts resolved.”

Rule 21(8) of the Constitutional Court Rules provides:

“(8) In determining whether or not it is in the interests of justice for a matter to be brought directly to the Court, the Court or Judge may, in addition to any other relevant consideration, take the following into account —

(a) The prospects of success if direct access is granted;

(b) Whether the applicant has any other remedy available to him or her;

(c) Whether there are disputes of fact in the matter.”

In Zimbabwe Development Party & Anor v The President & Ors 2018 ZLR 485 (CC)…, MALABA CJ commented thus:

“In order for direct access to be granted, the applicants had to show that they had prospects of success in the main matter. In Transvaal Agricultural Union v Minister of Land Affairs and Another 1996 (12) BCLR 1573, 1997 (2) SA 621 (CC) at para [46], the Constitutional Court of South Africa said in part:

'[46] The applicant has failed to establish that this is a case in which the ordinary procedures ought not to have been followed. There are important issues which are within the jurisdiction of the Supreme Court and which need to be resolved by it before this Court is approached for relief. As far as the other issues are concerned, there is neither the urgency nor the prospects of success necessary to justify direct access to this Court. The application for direct access must therefore be dismissed.'”…,.

In Bruce and Another v Fleecytex Johannesburg CC and Others 1998 (2) SA 1143 (CC), 1998 (4) BCLR 415 (CC)…, CHAKALSON P remarked:

“[7] Whilst the prospects of success are clearly relevant to applications for direct access to this Court; there are other considerations which are at least of equal importance. This Court is the highest Court on all constitutional matters.

The correct approach in dealing with an application for an order of direct access to the Court is one that accepts the principle that all relevant factors required to be taken into account must be made available for consideration. The Court or Judge must consider all the relevant factors in deciding the question whether the interests of justice would be served by an order granting direct access to the Court. The weight placed on the different factors in the process of decision making will depend on the circumstances of each case and the broader interests of a society governed by the rule of law.”…,.

It is common cause that the applicants are in occupation of individual Stands on the land, which is the subject of the dispute, under agreements of sale concluded between them and the second respondent. It is also common cause that the contracts of sale have not been cancelled in respect of some of the applicants.

The record shows, that, the second respondent obtained a judgment for the eviction of the first applicant from the Stand.

However, none of the applicants are claiming a right of occupation through the agreements of sale. Rather, their alleged right to occupation is premised on the allegation that they were allocated Stands under the land reform programme.

If granted access, the applicants seek an order in the following terms:

“1. That, it be and is hereby ordered that the judgment by this Court in CC43-15, handed down as an order on 18 November 2015, is rescinded for the reason that it was granted in error.

2. That, for the avoidance of doubt, and arising from the order in para 1, in the exercise of the Court's inherent powers under section 176 of the Constitution as read with section 175(6)(b) of the same Constitution, it is declared that certain piece of land known as Kingsdale of Johannesburg, in the district of Hartley, measuring 161,8238 hectares, is State land under section 72(4) of the Constitution of Zimbabwe.

3. The respondents (if they oppose this order) shall pay the costs of this application jointly and severally, the one paying the others being absolved.”

SUBMISSIONS BEFORE THE COURT

Submissions in relation to the two issues went as follows:

Counsel for the applicants contended, that, the High Court Rules are inapplicable in casu, and that the matter may be brought to the Constitutional Court by way of section 24 of the Constitutional Court Act. To that end, he argued, that, there was no question of delay in bringing the application for rescission as section 24 of the Constitutional Court Act did not make provision for a timeframe for filing the application.

He contended further, that, there were no time limits placed on alleged violation of the Constitution.

In so far it related to the locus standi of the applicants, counsel for the applicants argued, that, the applicants had an interest to protect. He further contended, that, they were absent from the process when the judgment was issued and have, therefore, the requisite locus standi in judicio.

Counsel for the second respondent (Maparahwe Properties (Pvt) Ltd) was of a contrary view.

He argued, that, whilst section 24 of the Constitutional Court Act restates the substantive power of the Constitutional Court, the procedural aspects are provided for in section 26 of the Constitutional Act.

In his view, section 24 of the Constitutional Court Act restates the substantive power of the Court. The procedural aspects of the exercise of that power are set out in section 26 of the Constitutional Court Act where the Chief Justice is empowered to promulgate rules of court to provide for the procedure the Constitutional Court is to follow.

He contended, that, the failure by the applicants to adhere to the rules of the Court was fatal to the application.

He suggested that the application was in fact a nullity.

Coming to the question of locus standi, counsel for the second respondent (Maparahwe Properties (Pvt) Ltd) submitted, that, the applicants had not established, on the papers, that they had locus standi to apply for the rescission of the judgment. They had not established that they had an interest that required protection through the setting aside of the judgement in question. He reiterated that interest, in the context of locus standi, must be personal as relates to the person seeking relief.

Counsel for the fourth respondent (Executor, Estate of Late Pieter Nicholas Nel), on the other hand, made the following submissions:

He argued, that, it was not in the interests of justice for the application to be granted. The applicants had become aware, as early as July 2017, of the existence of the judgment. The application was filed after a period of four years and there was no attempt to explain the delay in bringing it to the Constitutional Court.

He contended, that, Rule 29 of the Rules of the High Court applied in casu, and, on the premises of the rule, the applicants were not entitled to the relief they were seeking.

There were no submissions on the question of locus standi by the fourth respondent (Executor, Estate of Late Pieter Nicholas Nel).

I propose to consider the two issues ad seriatim....,.

The Court holds, that, it is not in the interests of justice that the applicants be granted leave for direct access in this matter. The view of the Court is that, upon considering the matter, the applicants have not established that the application has prospects of success on the merits. The reasons for so finding are on two bases:

(i)...,.

(ii) The second, the more important basis, is that the applicants have not established the requisite locus standi in judicio to apply for rescission of the judgment....,.

I turn to the second issue for determination, that of locus standi in judicio.

For the Court to invoke its jurisdiction to exercise power granted under section 24 of the Constitutional Court Act, the applicants must establish that they are parties affected by the judgment.

It cannot be set aside on a mere whim.

The applicants have to show that some right has been prejudiced by the issuance of the judgment in question. Since they allege that the land is State land, it is incumbent that they establish locus standi in judicio to invoke the jurisdiction of the Court to exercise its power in their favour.

“In law, standing or locus standi, is a condition that a party seeking a legal remedy must show that they have by demonstrating to the court sufficient connection to and harm from the law or action challenged to support that party's participation in the case.”…,.

In Sibanda & Ors v The Apostolic Faith Mission of Portland Oregon (Southern African Headquarters) Inc SC49-18, HLATSHWAYO JA considered the principle of locus standi and stated the following:

“It is trite that locus standi is the capacity of a party to bring a matter before a court of law. The law is clear on the point, that, to establish locus standi, a party must show a direct and substantial interest in the matter: see United Watch & Diamond Company (Pty) Ltd & Ors v Disa Hotels Ltd & Anor 1972 (4) SA 409 (C) at 415A-C and Matambanadzo v Goven SC23-04.

In casu, it is common cause, that, the respondent is a branch of the parent church. However, the respondent is endowed with the power to sue and be sued in its own name. It is further common cause that the respondent is under the leadership appointed by the parent church. The Constitution of the respondent is approved by the mother church. The first appellant has been in control of the respondent's assets on the basis of being an overseer appointed by the mother church. The main allegation a quo was that the appellants were no longer members of the respondent and hence should cease to control the assets of the respondent.

The respondent, as a branch of the mother church, had an unfettered direct interest in the matter in that the first appellant purported to act on the respondent's behalf when he was on suspension. The first appellant had been divested of the power to act on behalf of the respondent. It is common cause that the first appellant was on suspension when he caused the letter of 3 February 2012 to be drafted. He purported to communicate to the mother church an incorrect position that the respondent was also the author of the letter in question. The respondent, who had not authored the letter in question, surely has a direct interest in a matter where its previous leader purports to act on its behalf without its authority. Therefore, the respondent's locus standi in the Court a quo cannot be gainsaid.”

It is settled, that, the principle of locus standi is concerned with the relationship between the cause of action and the relief sought. Thus, a party needs to show that they have a direct, personal, and substantial interest in the matter in contention.

In Zimbabwe Stock Exchange v Zimbabwe Revenue Authority SC56-07, MALABA JA..., said:

“The common law position on locus standi in judicio of a party instituting proceedings in a court of law is, that, to justify participation in the action, the party must show that he or she has a direct and substantial interest in the right which is the subject matter of the proceedings and the relief sought.”

The above authorities speak to the legal position as pertains to locus standi generally.

As this application is concerned with an alleged violation of the Constitution, it is only appropriate that the Court considers the issue of locus standi in the light of decided authority on constitutional matters.

This Court, in the case of Mawarire v R G Mugabe & Ors CC01-13, accepting the applicant's right to access the court stated:

“Even under the pre-2009 requirements, it appears to me, that, the applicant is entitled to approach this Court for relief. Certainly, this Court does not expect to appear before it only those who are dripping with the blood of the actual infringement of their rights or those who are shivering incoherently with the fear of the impending threat which has actually engulfed them. This Court will entertain even those who calmly perceive a looming infringement and issue a declaration or appropriate order to stave the threat, moreso under the liberal post-2009 requirements.”

This decision was followed by a long line of authorities that established a trend in which the Courts sought to broaden the principle that locus standi should not be strictly construed in constitutional matters. To otherwise and apply too strict a construction would result in deserving cases failing to see the light of day further prejudicing an applicant deserving protection in pursuit of a fundamental right properly protected under the Constitution.

The position is settled, that, the new Constitution has expanded the locus standi of persons seeking to approach the Constitutional Court for the enforcement of an alleged breach of a fundamental right. Accordingly, in Meda v Matsvimbo Sibanda & Ors CC10-16, MALABA CJ made the following pertinent remarks:

“It is clear from a reading of section 85(1) of the Constitution that a person approaching the Court in terms of the section only has to allege an infringement of a fundamental right for the Court to be seized with the matter. The purpose of the section is to allow litigants as much freedom of access to the courts on questions of violation of fundamental human rights and freedoms with minimal technicalities.”

See also the dicta in Chirambwe v Parliament of Zimbabwe & Ors CC04-20 and Gonese & Anor v President of Zimbabwe & Ors CC10-18.

The applicants claim that they are beneficiaries to State land under the land reform programme.

While the acquisition of the land is provided for in the Constitution, the right to occupy gazetted land is provided for in the Gazetted Land (Consequential Provisions) Act [Chapter 20:28]. Thus, any right of occupation on the part of the applicants must be consistent with the rights set out in the relevant legislation, in this instance, the Gazetted Lands Act. In addition, a person claiming such right must show that he or she has lawful authority to occupy the land claimed.

Section 3(1) of the Gazetted Land (Consequential Provisions) Act reads:

“3 Occupation of Gazetted land without lawful authority

(1) Subject to this section, no person may hold, use or occupy Gazetted land without lawful authority.”

What is lawful authority?

The Gazetted Land (Consequential Provisions) Act sets out several categories of documents under which lawful authority may be granted. The Gazetted Land (Consequential Provisions) Act defines lawful authority as follows:

“'lawful authority' means —

(a) An offer letter; or

(b) A permit; or

(c) A land settlement lease; and 'lawfully authorised' shall be construed accordingly;

'offer letter' means a letter issued by the acquiring authority to any person that offers to allocate to that person any Gazetted land, or a portion of Gazetted land, described in that letter;

'permit' when used as a noun, means a permit issued by the State which entitles any person to occupy and use resettlement land;

'resettlement land' means land identified as resettlement land under the Rural District Councils Act [Chapter 29:13].

(2) Any word or expression to which a meaning has been assigned in the Land Acquisition Act [Chapter 20:10] shall have the same meaning when used in this Act.”

In addition, the Gazetted Land (Consequential Provisions) Act provides for land settlement leases described in the following terms:

“'land settlement lease' means a lease of any Gazetted land, or a portion of Gazetted land, issued by the State to any person, whether in terms of the Rural Land Act [Chapter 20:18] or the Agricultural Land Settlement Act [Chapter 20:01] or otherwise;”

The applicants needed to establish a real and substantial interest in the rescission of the judgment. They had to show that the judgment in issue directly affected their rights, interests, or potential rights or interests. They needed to show that the interests of justice favoured a finding of locus standi in judicio in their favour. Alternatively, they needed to establish a connection to and harm from the judgment sought to be rescinded.

They did not.

Apart from a bald statement in the founding affidavit that the applicants were beneficiaries under the land reform programme, no one has attached any document as proof of the claim.

To claim a right of occupation to Gazetted land under the programme, a person must exhibit any of the documents described as constituting lawful authority.

Neither the first applicant nor her cohorts have even alluded to having such lawful authority. Instead, what is before the Court are copies of agreements of sale between the applicants and the second respondent.

The agreements of sale are not the lawful authority contemplated under the Gazetted Land (Consequential Provisions) Act.

Any person claiming lawful authority to occupy or use State land must produce an offer letter, permit, or lease relating to the agricultural land in question: see Taylor-Freeme v The Senior Magistrate, Chinhoyi CC10-14; Zinyemba v The Minister of Lands & Rural Resettlement & Anor CC03-16.

The Constitutional Court has already settled what constitutes lawful authority under the Gazetted Land (Consequential Provisions) Act. In Taylor-Freeme v The Senior Magistrate, Chinhoyi CC10-14, the Court defined lawful authority as follows:

“'Lawful authority' means an offer letter, a permit and a land settlement lease. The documents attached to the defence outline are not offer letters, permits, or land settlement leases issued by the acquiring authority. They do not constitute 'lawful authority' providing a defence to the charge the applicant is facing.”

The Constitutional Court is of the view, that, the applicants lack the necessary locus standi to bring an application for the rescission of the judgment in CC43-15. They have failed to establish their claim to be beneficiaries under the land reform programme with lawful authority to occupy the land in question which they assert remains vested in the State. It follows, that, they cannot claim to be parties affected by the judgment that they seek to rescind within the meaning of section 24(1)(a) of the Constitutional Court Act.

The absence of locus standi, in this case, leaves the applicants without a paddle. It means that the application they intend to bring in the main matter has no prospects of success.

In the premises, for this additional reason, it is only appropriate that the Court makes a finding, that, it is not in the interests of justice for the applicants to be granted direct access to the Court.

SC57-18 : DRUM CITY (PRIVATE) LIMITED vs BRENDA GARUDZO
Ruled By: GWAUNZA DCJ, MAKARAU JA and MAKONI JA

This is an appeal against the decision of the Labour Court confirming the draft ruling of the respondent, a labour officer. The ruling was in favour of the appellant's former employee, Ms Umarah Khan whose contract of employment was summarily terminated as from 15 April 2015 on allegations of certain ...

FACTUAL CONSPECTUS

The decision to dismiss Ms Khan from employment was reached after it was found that she had two earlier written warnings in relation to similar offences. An amount of US$3,986=61 was paid as terminal benefits through her bank account after Ms Khan refused to sign the letter of termination.

Aggrieved by the decision to terminate her employment, Ms Khan filed a complaint of unfair labour practice against the appellant in terms of section 93 of the Labour Act [Chapter 28:01] (“the Act”). The dispute was placed before the respondent for a hearing.

It was her case, that, no proper investigations were conducted into the allegations levelled against her, and, further, that she was not granted the right to be heard before she was summarily dismissed.

She thus claimed damages for unlawful dismissal totalling US$23,253=34.

Before the labour officer, the parties did not agree on Ms Khan's monthly salary, as the appellant alleged that it was US$750 while Ms Khan argued that it was US$1,500. The respondent ruled in favour of Ms Khan on this point, and, having found that her dismissal from employment was unfair, ordered the appellant to reinstate her without loss of pay and benefits. Alternatively, the appellant was to pay Ms Khan damages in lieu of reinstatement amounting to a total of US$9,000.

Subsequently, the labour officer applied to the Labour Court in terms of section 93(5a) of the Labour Act for confirmation of her draft ruling. In the application, she cited the appellant only as the respondent while Ms Khan, in whose favour the draft ruling was made, was neither cited, nor joined, as a party to the proceedings.

The appellant opposed the application, but, the court a quo, after hearing oral argument from the appellant, granted an order confirming the ruling.

PROCEEDINGS BEFORE THIS COURT

The appellant was aggrieved by the decision of the court a quo and has appealed against it to this Court.

It argues in the main, that, the court a quo erred in simply confirming the respondent's award to Ms Khan of US$9,000 as damages without fully addressing the principles of law to be applied thereto. It further argued, that, the respondent made a ruling in favour of Ms Khan despite the fact that she was charged with disobedience of lawful orders, negligence or misuse of company property, and, in addition, had failed to avail herself for the hearing which led to her dismissal.

The respondent, that is the labour officer, did not file any heads of argument nor did she appear before this Court on the date of hearing.

The court observed, that, the respondent, who was in effect a nominal respondent, had no personal interest in the dispute nor any outcome thereof.

Ms Khan, was not cited in the appeal before this Court.

Accordingly, a default judgment in this case, whose effect would be to set aside an award made in her favour would be manifestly unjust, given that she would not have been notified of the hearing, nor accorded the right to be heard before such an adverse order is made against her.

SECTION 93(5a) OF THE LABOUR ACT – NEED FOR EMPLOYEE TO BE JOINED IN CONFIRMATION PROCEEDINGS

Counsel for the appellant rightly conceded, that, the Labour Court could have properly ordered the joinder of Ms Khan to the confirmation proceedings before it. This would have given her the right to defend the application for confirmation of the award made in her favour, both in the court a quo and in this Court.

Accordingly, he further conceded that the matter be remitted to the Labour Court for Ms Khan to be joined as a party.

The court saw merit in his request for written reasons for the judgment, in order to clarify both the procedure and the law to be applied, in the face of confusion as to the handling of this and other cases brought to the Labour Court in terms of section 93(5a) of the Labour Act.

The need was recognized for that court to follow a procedure that would ensure that all parties who have a substantial interest in the dispute at hand are accorded the right to argue their respective cases before the determination is made as to whether to confirm or not, a labour officer's draft ruling in terms of section 93(5b) of the Labour Act.

It is noted, that, prior to the Labour Amendment Act No.5 of 2015, labour disputes of right would go before a labour officer for conciliation, and, if conciliation failed and the parties did not reach a settlement, the labour officer would refer the dispute to compulsory arbitration, and both parties would be heard.

Where an arbitral award was made, the successful party would then file the award for registration with a relevant court for purposes of enforcement. The losing party, on the other hand, had the right to appeal against the award to the Labour Court.

The legislature took the view that this procedure resulted in long delays in the determination of the disputes in question, thus depriving litigants of speedy justice. The enactment of section 93(5a) and (5b) of the Labour Act was meant to address this mischief.

Subsections 93(5a) and (5b) of the Labour Act provide as follows:

“(5a) A labour officer who makes a ruling and order in terms of ss(5)(c) (this paragraph provides in the relevant part that a labour officer, after issuing a certificate of no settlement, may order that the employer pays damages to the employee or that he ceases or rectifies any alleged unfair labour practice that is a dispute of rights) shall as soon as practicable -

(a) Make an affidavit to that effect incorporating, referring to, or annexing thereto any evidence upon which he or she makes the draft ruling and order; and

(b) Lodge, on due notice to the employer or other person against whom the ruling and order is made (“the respondent”), an application to the Labour Court, together with the affidavit and a claim for the costs of the application (which shall not exceed such amount as may be prescribed), for an order directing the respondent by a certain day (the “restitution day”) not being earlier than thirty days from the date that the application is set down for hearing (the “return day” of the application) to do or pay what the labour officer ordered under ss(5)(c)(ii) and to pay the costs of the application.

(5b) If, on the return day of the application, the respondent makes no appearance or, after a hearing, the Labour Court grants the application for the order with or without amendment, the labour officer concerned shall, if the respondent does not comply fully or at all with the order by the restitution day, submit the order for registration to whichever court would have had jurisdiction to make such an order had the matter been determined by it, and thereupon the order shall have effect, for purposes of enforcement, of a civil judgment of the appropriate court.”…,.

My interpretation of the two provisions cited suggests the following procedural steps;

(a) The labour officer, after making a ruling in terms section 93(5)(c)(ii) of the Labour Act, makes an affidavit to that effect and attaches to it any evidence on which such ruling is based.

(b) The labour officer then gives notice to the employer or any person against whom such ruling and order is made (respondent), of the lodging by him, of an application with the Labour Court for an order directing the respondent to comply with the ruling within a period not less than 30 days from the date the matter is set down for hearing (restitution day).

(c) The labour officer then appears before the Labour Court on the date of hearing, as the applicant, seeking an order confirming his or her draft ruling.

(d) Should the respondent fail to make an appearance, the Labour Court will nevertheless make a ruling confirming the order with or without an amendment.

(e) On the date of hearing (and presumably with the respondent in attendance) the Labour Court may also conduct a hearing and grant (confirm) the order sought with or without amendment.

(f) Thereafter, should the respondent fail to comply with the order of the Labour Court within 30 days of the hearing date, the labour officer will submit to the relevant court, such order (obtained in default of appearance by the respondent, or after a hearing by the Labour Court) for registration.

(g) Upon submission of the order to the relevant court for registration, it shall have the same effect, for purposes of enforcement, as any civil judgment of that court.

It is to be noted from the above, that, only if the labour officer rules against the employer or any person will he or she be required to take the steps outlined in sections (5a) and (5b) of the Labour Act.

In other words, the provisions do not confer on the Labour Court the jurisdiction to confirm a draft ruling made against an employee (such employee would, it seems, have to pursue other avenues to appeal against the draft ruling).

That this is the case is left in no doubt by the wording of section 93(5)(c)(ii) of the Labour Act which specifically provides for a ruling, like the one in casu, in circumstances where the labour officer finds that the dispute of right in question 'must be resolved against any employer or other person in a specific manner…,.'

Without a clear pronouncement to that effect, there can, in my view, be no doubt that reference to 'any person' in this provision, is not to be read as including the employee in the same dispute.

I am satisfied, that, the import of the provision is to exclude the confirmation and registration of a draft ruling by the labour officer, which is made in favour of an employer and against an aggrieved employee.

It follows, that, the Labour Court has no jurisdiction to entertain such a matter, and should, on that basis, properly decline to hear it.

It is noted further, that, the wording of section 93(5b) of the Labour Act, albeit not specifically stating so, excludes the employee concerned from the confirmation proceedings.

This is an employee who would have been an active party in, as well as the instigator of the proceedings that resulted in the draft ruling of the labour officer. This is also the same employee who, having won a draft award, may quite possibly have it set aside by the Labour Court without reference to him or her.

In other words, this would happen without the employee being afforded an opportunity to be heard or adduce evidence in defence of the award in question.

It is beyond dispute that such an employee has a direct and substantial interest in the confirmation proceedings before the Labour Court. He or she has the right to be heard in proceedings that may fundamentally affect their interests.

Even the nature of the hearing mentioned in section 93(5b) of the Labour Act is not clear (the hearing is certainly not an appeal against nor a review of the Labour Officer's ruling. This is because the procedure that is set out in sub-sections (5a) and (5b) is not capable of accommodating an appeal or review process in relation to the labour officer's ruling) one may safely assume that like in any hearing, all interested parties must be afforded the opportunity to be heard, unless they choose not to be heard. Only then would the Labour Court be in a position to fully determine the matter and render a judgment that meets the justice of the case.

The employee, on these grounds, can, in my view, properly apply to be joined to the confirmation proceedings in terms of Rule 33(2) of the Labour Court Rules, SI150/17.

The joinder of a party mero motu by the court is not expressly provided for in Rule 33 of the Labour Court Rules, however.

I am nevertheless satisfied, that, this shortcoming is not to be interpreted as ousting the jurisdiction of the Labour Court, in a deserving case, to order mero motu the joinder of an employee who stands to be affected one way or the other, by the outcome of the confirmation proceedings.

Such an order would ensure full compliance with the common law rule, audi alteren partem.

The importance of joining an interested party to the proceedings in a court is authoritatively articulated in a number of authorities:

CILLIERS AC, LOOTS C and NEL HC, HERBSTEIN and Van WINSEN, The Civil Practice of the High Courts and the Supreme Court of Appeal of South Africa (5th edn, Juta & Co Ltd, Cape Town, 2009) Vol. 1, at page 215, explain non-joinder by stating as follows:

“A third party who has, or may have a direct and substantial interest in any order the court might make in proceedings, or, if such an order cannot be sustained or carried into effect without prejudicing that party, is a necessary party and should be joined in the proceedings, unless the court is satisfied that such a person has waived the right to be joined…,; in fact, when such person is a necessary party in the sense that the court will not deal with the issues without a joinder being effected, and no question of discretion or convenience arises.”…,.

The meaning of direct and substantial interest is explained at page 217 to 218 as follows:

“A 'direct and substantial interest' has been held to be 'an interest in the right which is the subject-matter of the litigation and not merely a financial interest which is only an indirect interest in such litigation'. It is 'a legal interest in the subject matter of the litigation, excluding an indirect commercial interest only'. The possibility of such an interest is sufficient, and it is not necessary for the court to determine that it in fact exists. For joinder to be essential, the parties to be joined must have a direct and substantial interest not only in the subject-matter of the litigation but also in the outcome of it.”…,.

It hardly needs emphasis, that, albeit not applicable in casu, an outcome in the confirmation proceedings that has the effect of reversing an award made by a labour officer in favour of an employee would clearly prejudice him or her. The potential of a prejudicial outcome therefore, in my view, confers requisite interest upon the employee, to merit his or her joinder to the proceedings.

The employee, in any case, would still have a legal interest in the outcome even where the ruling of the labour officer is confirmed, with or without amendment.

The employee would therefore be perfectly within his or her rights to seek a joinder to the confirmation proceedings. The Labour Court can and should properly grant such an application, or where it is not made, order mero motu that the employee be joined to the proceedings, so as to be afforded an opportunity to make submissions in response to those of the respondent.

That, the court has the authority to proceed thus is justified on the need to safeguard the interest of third parties in any matter before it as the passage below illustrates (see HERBSTEIN and Van WINSEN, The Civil Practice of the High Courts and the Supreme Court of Appeal of South Africa (5th edn, Juta & Co Ltd, Cape Town, 2009) Vol. 1 at pages 208 to 209);

“In cases of joinder of necessity, if the parties do not raise the issue of non-joinder, the court should raise it mero motu to safeguard the interest of third parties and it should decline to hear the matter until such joinder has been effected, or until the court is satisfied that the third parties have consented to be bound by the judgment or have waived their right to be joined.”

When this is related to the circumstances of this case, it cannot, in my view, be contested that the joinder of the employee, Ms Khan, was necessary.

While it is noted, in casu, that, the Labour Court found in favour of the employee and therefore confirmed the draft ruling, the fact cannot be ignored, that, the court effectively heard evidence from one side of the dispute and not the other, before making its determination.

As the judgment indicates, the court heard oral submissions from the respondent in its opposition to the confirmation of the draft ruling. It then essentially weighed the respondent's submissions against what was contained in the affidavit of the labour officer (before the court a quo, the labour officer briefly repeated the facts of the dispute and the details of the award she had made), and made its determination.

The procedure would have worked substantial injustice upon the employee if the Labour Court had declined to confirm the draft order, or confirmed it with an amendment, for instance, reducing the quantum of the award. Nor, however, could the same procedure be said to have been fair on the respondent, who could be forgiven for thinking, that, the employee had been accorded the unfair advantage of having her case 'argued' for her by the labour officer.

There are further compelling grounds justifying the joinder of the employee to the confirmation proceedings:

(i) Firstly, by allowing the respondent to be served with the notice of hearing of the confirmation proceedings, section 93(5b) of the Labour Act affords the employer an opportunity to oppose the confirmation of the ruling in question. Such opposition may logically be supported by some evidence or arguments that the employee concerned would not be present to counter.

It is evident from section 93(5b) of the Labour Act, that, before the Labour Court, all that the labour officer is required to do is confirm that the application before the court was submitted by him in his role as, effectively, a nominal applicant. He is, in reality, not a party to the proceedings since he would have no personal interest in the outcome, whatever its effect.

He cannot, therefore, be expected to defend his ruling in the face of any submissions made by the respondent in opposing its confirmation.

Defending the labour officer's ruling should properly be the province of the person directly affected by it, that is, the employee concerned.

In my view, the Labour Court's confirmation or non-confirmation of the ruling, after effectively hearing one side of the dispute, is, at best, an irregularity, and, at worst, a travesty of justice.

(ii) Secondly, the procedure presupposes, that, a ruling made by the labour officer in favour of an employee will meet that employee's satisfaction.

It shuts the door, for instance, on an employee who is awarded damages that fall substantially short of what he or she had claimed, who might wish to seek an upward variation of that quantum, in confirmation proceedings before the Labour Court.

A joinder to the proceedings would accord the employee the opportunity to, as it were 'cross oppose' the confirmation proceedings in the desired respect.

(iii) Thirdly, in the case where the draft ruling of the labour officer is not confirmed by the Labour Court, for one reason or the other, the employee might wish to take up the matter on appeal. He would, however, be hamstrung by the fact, that, he was not a party to the confirmation proceedings. Further, the employee cannot expect the labour officer to appeal against the non-confirmation of the order on his or her behalf.

(iv) Fourthly, the confirmation proceedings trigger or may trigger a number of undesirable procedural consequences.

One such consequence is brought into sharp focus where the employer, being disgruntled at the confirmation of the draft ruling, takes that decision on appeal to this Court, citing only the Labour Officer as the respondent.

This is what happened in casu.

All too often, this type of appeal has been set down without any input from the employee or employees concerned, since they were not cited in the confirmation proceedings. They may therefore not even be aware that the matter proceeded to the Supreme Court on appeal.

Equally, often, the respondent cited in the appeal, that is, the labour officer, makes no appearance on the date of hearing, nor does he file any heads of argument. Although vexing, this situation does not come as a surprise to the court, since there is no legal basis set for the labour officer's appearance.

Ordinarily, where a party who was properly served fails to appear on the date of hearing, the party present may move for a default judgment against the defaulting party.

The point has already been made, that, the entering of a default judgment where a labour officer fails to attend court would result in one setting aside of the award made in favour of an employee without such employee's knowledge.

The injustice of such an outcome needs no emphasis.

(v) Finally, the appearance of the labour officer, as the respondent, in a few appeals in this Court, and in the absence of the employee concerned, has also presented procedural problems.

In such cases, the question of the labour officer's competence to so appear has arisen.

In particular, the question is asked as to whose interests he would be representing in the appeal, and on what legal basis? It hardly needs mentioning that these questions would not arise if the employee concerned is joined to the confirmation proceedings before the Labour Court. He or she would then be in a position to file papers and attend court on the date the appeal is heard.

Other aspects of the procedure suggested by subsections (5a) and (5b) of section 93 of the Labour Act merit some comment.

Section 93(5b) of the Labour Act makes it clear, that, the role of the labour officer ends with the submission, by him, of the confirmation order of the Labour Court to a relevant court for registration. The provision is premised on another assumption, which is that the employer will accept as final, the order of the Labour Court pursuant to the confirmation proceedings. That this assumption is misplaced is borne out by the frequent appeals brought to this Court by employers disgruntled at the Labour Court's confirmation of the labour officer's ruling.

Further, while section 93(5b) of the Labour Act clarifies that registration of the confirmation order with a relevant court is meant to facilitate its enforcement, it is silent as to who would drive the process, in particular, who would take out the requisite warrant of execution.

Without being cited as a party, there would be confusion as to whether the 'claimant' that is the employee would have the authority to do it. On the other hand, the labour officer, not being a substantive party to the confirmation proceedings, would lack the requisite locus standi, and, moreso because section 93(5b) does not mandate him to do so.

The danger of the Labour Court's order being rendered a brutum fulmen becomes real.

In conclusion, while one might argue, in view of the absurdities chronicled above, that not enough thought was put into the formulation and practical import of these two provisions, I take the view, that, the absurdities could not have been consciously intended by the legislature.

The simple cure for such absurdity, as has already been stressed, is to join the employee concerned to the proceedings before the Labour Court.

The legislature might well wish to consider addressing this, and the other concerns, set out in this judgment.

DISPOSITION

When all is said and done, and in view of the foregoing, it is my finding, that, there was a fatal non-joinder of the employee, Ms Khan, to the proceedings a quo. Such proceedings can, therefore, not be allowed to stand.

In the result, the following order is made:

1. The appeal be and is hereby allowed.

2. The proceedings and judgment of the court a quo be and are hereby quashed.

3. The matter is remitted to the Labour Court for a rehearing after the employee, Ms Khan, has been joined to the proceedings.

4. Each party shall bear its own costs.

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Final Orders re: Judgment in Personam iro Parties Bound by a Court Order

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HH56-15 : ESTATE LATE FIDELIS CHIWEDZA and OSBURGA NDHLOVU (Executrix Dative) vs LUISA GOMBARUME and POLKA EXECUTOR SERVICES and AFRICA REAL ESTATE and MAKUNIKE & PARTNERS and OTHERS Ruled By: UCHENA J

Appealed SC34-19 : NJZ RESOURCES (HK) LIMITED vs ANDREW ZINYEMBA AND 18 OTHERS Ruled By: GWAUNZA DCJ, MAKARAU JA and BHUNU JA

Appealed SC43-19 : AFRASIA BANK ZIMBABWE LIMITED (IN LIQUDATION) vs THE RIGHT INVESTMENTS (PVT) LTD and OPIUM INVESTMENTS (PVT) LTD and PHILLIPA COUMBIS Ruled By: GWAUNZA JA, GARWE JA and MAVANGIRA JA

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SC46-17 : ANDREW MAGARASADZA and 34 OTHERS vs FREDA REBECCA GOLD MINE HOLDINGS LTD t/a FREDA REBECCA GOLD MINE and ASSOCIATED MINE WORKERS UNION OF ZIMBABWE Ruled By: MAVANGIRA JA

HH234-10 : RODGERS MADANGURE vs SHATO LUFEYI and DAYNDALE ENTERPRISES (PRIVATE) LIMITED and MUGEJO MAKONI Ruled By: GOWORA J

HH237-10 : ISDORE HUSAIHWEVHU and WALTER MUTOWO and FUNGAI ZINYAMA vs UZ – USF COLLABORATIVE RESEARCH PROGRAMME Ruled By: GOWORA J

HB15-10 : TIMOTHY SIJIYE vs MFANUKHONA PHIRI and DAVID MPOFU and TAKATSO MPOFU Ruled By: KAMOCHA J

HH130-11 : THIRDLINE TRADING (PVT) LTD and ONCLASS INVESTMENTS (PVT) LTD vs BOKA INVESTMENTS (PVT) LTD and TOBACCO INDUSTRY & MARKETING BOARD Ruled By: UCHENA J

View Appeal HH145-17 : GERTRUDE MUTASA and DIDYMUS MUTASA vs NYAKUTOMBWA & MUGABE LEGAL COUNSEL and SHERIFF OF THE HIGH COURT Ruled By: TSANGA J

CC02-20 : JOSEPH CHANI vs JUSTICE HLEKANI MWAYERA and MICHAEL MUGABE and MUSUTAMI CHIFAMUNA and NATIONAL PROSECUTING AUTHORITY Ruled By: MALABA CJ

View Appeal HH220-11 : THE GOSPEL OF GOD CHURCH INTERNATIONAL 1932 vs SIMBA MUKAMBIRWA and OTHERS Ruled By: MAVANGIRA J

SC05-21 : GIFT KONJANA vs DEXTER NDUNA Ruled By: PATEL JA, BHUNU JA and BERE JA

Appealed SC06-21 : OLIVER MASOMERA (as Executor Dative of Estate late Bryan James Rhodes) vs GIDEON HWEMENDE and OTHERS Ruled By: PATEL JA, BHUNU JA and BERE JA

View Appeal HH665-16 : OLIVER MASOMERA (as Executor Dative of Estate late Brian James Rhodes) vs GIDEON HWEMENDE and OTHERS Ruled By: CHITAPI J

HH688-14 : GERALD CHIWESHE and SAMEER KHAN and BRUCE THOMAS vs AIR ZIMBABWE HOLDINGS (PVT) LTD Ruled By: MTSHIYA J

Appealed SC14-21 : MAXWELL SIBANDA vs ZAMBE NYIKA GWASIRA and NZ INDUSTRIAL and MINING SUPPLIES and REGISTRAR OF DEEDS and SHERIFF OF ZIMBABWE Ruled By: GOWORA JA, GUVAVA JA and BHUNU JA

HH298-17 : ZAMBE NYIKA GWASIRA vs MAXWELL SIBANDA and N.Z. INDUSTRIAL & MINING SUPPLIES and REGISTRAR OF DEEDS and SHERIFF OF ZIMBABWE Ruled By: MATANDA-MOYO J

View Appeal SC61-21 : COSMA CHIANGWA vs DAVID KATERERE and ROBERT CAMPBELL LOGAN and ISRAEL GUMUNYU and REGISTRAR OF DEEDS and EDMOND CHIVHINGE and MASTER OF THE HIGH COURT Ruled By: BHUNU JA, MATHONSI JA and CHITAKUNYE AJA

Appealed HH122-11 : DAVID KATERERE vs COSMA CHIANGWA and ROBERT CAMPBELL-LOGAN and ISRAEL GUMUNYU and REGISTRAR OF DEEDS and EDMOND CHIVHINGE and MASTER OF THE HIGH COURT Ruled By: MAVANGIRA J

SC77-21 : TRIANGLE (PRIVATE) LIMITED vs FUNGAI MUTASA (NO) and OTHERS Ruled By: GARWE JA, MAVANGIRA JA and MAKONI JA

HH94-16 : THE MILTON GARDENS ASSOCIATION and SYRIL MUPANGURI vs TECLA MVEMBE and CHAMPION CONSTRUCTORS (PVT) LTD and REGISTRAR OF DEEDS, HARARE and THE SURVEYOR GENERAL Ruled By: DUBE J

SC07-17 : CHRIS STYLIANOU and FRED DRIVER AND SONS (PVT) LTD and D.R. HENDRY (PVT) LTD vs MOSES MUBITA AND 25 OTHERS Ruled By: GWAUNZA JA, GUVAVA JA and BHUNU JA

HH391-17 : ANDREW PASCOE vs MINISTRY OF LANDS & RURAL RESETTLEMENT and W. BUNGU and THE ATTORNEY GENERAL N.O. Ruled By: FOROMA J

HH801-22 : EQUITY PROPERTIES (PVT) LTD vs AL SHAMS GLOBAL BVI LIMITED and REGISTRAR OF DEEDS N.O. Ruled By: MANGOTA J

Appealed CC07-21 : MARX MUPUNGU vs MINISTER OF JUSTICE, LEGAL AND PARLIAMENTARY AFFAIRS and OTHERS Ruled By: GWAUNZA ACJ, GARWE JCC, MAKARAU JCC, GOWORA JCC, HLATSHAWAYO JCC, PATEL JCC and GUVAVA AJCC

Appealed CC07-21 : MARX MUPUNGU vs MINISTER OF JUSTICE, LEGAL AND PARLIAMENTARY AFFAIRS and OTHERS Ruled By: GWAUNZA ACJ, GARWE JCC, MAKARAU JCC, GOWORA JCC, HLATSHAWAYO JCC, PATEL JCC and GUVAVA AJCC

CC08-21 : ZIMBABWE BANKS AND WORKERS UNION and TIRIVANHU MARIMO vs MINISTER OF PUBLIC SERVICE, LABOUR AND SOCIAL WELFARE and THE SHERIFF OF ZIMBABWE and ZB BANK LIMITED Ruled By: GARWE AJCC, GOWORA AJCC and HLATSHWAYO AJCC

CC11-21 : LIZIWE MUSEREDZA and 385 OTHERS vs MINISTER OF AGRICULTURE, LANDS, WATER AND RURAL RESETTLEMENT and MAPARAHWE PROPERTIES (PVT) LTD and OTHERS Ruled By: GWAUNZA DCJ, GARWE JCC, MAKARAU JCC, GOWORA JCC, HLATSHWAYO JCC, PATEL JCC and UCHENA AJCC

CC01-22 : LIZIWE MUSEREDZA and 303 OTHERS (LISTED) vs MINISTER OF AGRICULTURE, LANDS, WATER AND RURAL RESETTLEMENT and MAPARAHWE PROPERTIES (PRIVATE) LIMITED and OTHERS Ruled By: GOWORA JCC, HLATSHAWYO JCC and PATEL JCC

SC57-18 : DRUM CITY (PRIVATE) LIMITED vs BRENDA GARUDZO Ruled By: GWAUNZA DCJ, MAKARAU JA and MAKONI JA

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Zimbabwe

HH79-12 : MARIANE SABETA vs COMMISSIONER GENERAL ZIMBABWE REVENUE AUTHORITY
Ruled By: MATHONSI J

HH34-09 : JOHN CAMERON ASHER vs MINISTER OF STATE RESPONSIBLE FOR NATIONALL SECURITY, LANDS, LAND REFORM AND RESETTLEMENT IN THE PRESIDENT'S OFFICE AND T. NYIKADZINO
Ruled By: CHATUKUTA J

HH86-09 : CHAWASARIRA TRANSPORT (PVT) LTD vs THE RESERVE BANK OF ZIMBABWE
Ruled By: BHUNU J

Appealed
HH55-12 : STREAMSLEIGH INVESTMENTS (PRIVATE) LIMITED vs AUTOBAND INVESTMENTS (PRIVATE) LIMITED
Ruled By: BERE J

HH32-12 : ZELLCO CELLULLAR PL vs NETONE CELLULLAR PL and DR CALLISTUS NDLOVU and REWARD KANGAI and LYNDON NKOMO
Ruled By: GOWORA J

HH47-08 : TSITSI MUZENDA vs PATRICK KOMBAYI and ZIMBABWE ELECTORAL COMMISSION
Ruled By: KUDYA J

HH45-08 : HILLARY SIMBARASHE vs ZIMBABWE ELECTORAL COMMISSION and MABEL CHINOMONA
Ruled By: KUDYA J

HH131-09 : MAIROS LISIMBA vs LIZZY CHIPENDO
Ruled By: CHITAKUNYE J

HH164-09 : ZIMRE PROPERTY INVESTMENT (PVT) LTD vs CITY CALVARY CHURCH
Ruled By: GOWORA J

Appealed
SC08-14 : SIMBA MUKAMBIRWA and OTHERS vs THE GOSPEL OF GOD CHURCH INTERNATIONAL 1932
Ruled By: GARWE JA, GOWORA JA and OMERJEE AJA

SC55-13 : FREDRICK CHARLES MUTANDA vs THE STATE and KUDAKWASHE JARABINI
Ruled By: MALABA DCJ, GARWE JA and GOWORA JA

HH30-13 : BRIAN MUNEKA and DADIRAI RWANZA and JANIES TIMOTHY and EDMOND MULEYA and MUSEKIWA MUZANENHAMO and TSITSI DHLIWAYO vs MANICA BUS COMPANY
Ruled By: MTSHIYA J

HH354-13 : STANBIC NOMINEES PRIVATE LIMITED and STANBIC BANK ZIMBABWE LIMITED vs REMO INVESTMENT BROKERS (PRIVATE) LIMITED
Ruled By: MTSHIYA J

HB39-13 : KARREN DUBE vs LUPANE STATE UNIVERSITY and MCLEAN BHALA
Ruled By: CHEDA AJ

HH25-14 : STEVEN VHAVHA vs MSIZI DUBE and THE DIRECTOR OF HOUSING, CHITUNGWIZA and MUNICIPALITY OF CHITUNGWIZA and NANCY KUTYAURIPO
Ruled By: CHITAKUNYE J

HH186-14 : AFRICAN BANKING CORPORATION OF ZIMBABWE LIMITED vs DYNAMIC SUCCESS (PVT) LTD and DORCAS MARY MUDENDA
Ruled By: MTSHIYA J

HH56-15 : ESTATE LATE FIDELIS CHIWEDZA and OSBURGA NDHLOVU (Executrix Dative) vs LUISA GOMBARUME and POLKA EXECUTOR SERVICES and AFRICA REAL ESTATE and MAKUNIKE & PARTNERS and OTHERS
Ruled By: UCHENA J

Appealed
SC34-19 : NJZ RESOURCES (HK) LIMITED vs ANDREW ZINYEMBA AND 18 OTHERS
Ruled By: GWAUNZA DCJ, MAKARAU JA and BHUNU JA

Appealed
SC43-19 : AFRASIA BANK ZIMBABWE LIMITED (IN LIQUDATION) vs THE RIGHT INVESTMENTS (PVT) LTD and OPIUM INVESTMENTS (PVT) LTD and PHILLIPA COUMBIS
Ruled By: GWAUNZA JA, GARWE JA and MAVANGIRA JA

SC48-19 : JACOB BETHEL CORPORATION vs EMMANUEL CHIKUYA
Ruled By: MAKARAU JA, GOWORA JA and BERE JA

Appealed
SC28-18 : NYAKUTOMBWA MUGABE LEGAL COUNSEL vs GETRUDE MUTASA and DIDYMUS MUTASA and SHERIFF OF ZIMBABWE
Ruled By: GARWE JA, MAKARAU JA and GUVAVA JA

HB46-14 : TOPPERS UNIFORMS PL vs HYDE PARK INVESTMENTS PL and TOTALLY UNIFORMS PL and AHMED ESAT and NKANI KHOZA and ZULEKA ESAT
Ruled By: MUTEMA J

SC40-15 : INDIUM INVESTMENTS (PVT) LTD vs KINGSHAVEN (PVT) LTD and DANIEL SHUMBA and LINDA SHUMBA
Ruled By: CHIDYAUSIKU CJ, GWAUNZA JA, GOWORA JA, HLATSHWAYO JA and MAVANGIRA AJA

SC46-17 : ANDREW MAGARASADZA and 34 OTHERS vs FREDA REBECCA GOLD MINE HOLDINGS LTD t/a FREDA REBECCA GOLD MINE and ASSOCIATED MINE WORKERS UNION OF ZIMBABWE
Ruled By: MAVANGIRA JA

HH234-10 : RODGERS MADANGURE vs SHATO LUFEYI and DAYNDALE ENTERPRISES (PRIVATE) LIMITED and MUGEJO MAKONI
Ruled By: GOWORA J

HH237-10 : ISDORE HUSAIHWEVHU and WALTER MUTOWO and FUNGAI ZINYAMA vs UZ – USF COLLABORATIVE RESEARCH PROGRAMME
Ruled By: GOWORA J

HB15-10 : TIMOTHY SIJIYE vs MFANUKHONA PHIRI and DAVID MPOFU and TAKATSO MPOFU
Ruled By: KAMOCHA J

HH130-11 : THIRDLINE TRADING (PVT) LTD and ONCLASS INVESTMENTS (PVT) LTD vs BOKA INVESTMENTS (PVT) LTD and TOBACCO INDUSTRY & MARKETING BOARD
Ruled By: UCHENA J

View Appeal
HH145-17 : GERTRUDE MUTASA and DIDYMUS MUTASA vs NYAKUTOMBWA & MUGABE LEGAL COUNSEL and SHERIFF OF THE HIGH COURT
Ruled By: TSANGA J

CC02-20 : JOSEPH CHANI vs JUSTICE HLEKANI MWAYERA and MICHAEL MUGABE and MUSUTAMI CHIFAMUNA and NATIONAL PROSECUTING AUTHORITY
Ruled By: MALABA CJ

View Appeal
HH220-11 : THE GOSPEL OF GOD CHURCH INTERNATIONAL 1932 vs SIMBA MUKAMBIRWA and OTHERS
Ruled By: MAVANGIRA J

SC05-21 : GIFT KONJANA vs DEXTER NDUNA
Ruled By: PATEL JA, BHUNU JA and BERE JA

Appealed
SC06-21 : OLIVER MASOMERA (as Executor Dative of Estate late Bryan James Rhodes) vs GIDEON HWEMENDE and OTHERS
Ruled By: PATEL JA, BHUNU JA and BERE JA

View Appeal
HH665-16 : OLIVER MASOMERA (as Executor Dative of Estate late Brian James Rhodes) vs GIDEON HWEMENDE and OTHERS
Ruled By: CHITAPI J

HH688-14 : GERALD CHIWESHE and SAMEER KHAN and BRUCE THOMAS vs AIR ZIMBABWE HOLDINGS (PVT) LTD
Ruled By: MTSHIYA J

Appealed
SC14-21 : MAXWELL SIBANDA vs ZAMBE NYIKA GWASIRA and NZ INDUSTRIAL and MINING SUPPLIES and REGISTRAR OF DEEDS and SHERIFF OF ZIMBABWE
Ruled By: GOWORA JA, GUVAVA JA and BHUNU JA

HH298-17 : ZAMBE NYIKA GWASIRA vs MAXWELL SIBANDA and N.Z. INDUSTRIAL & MINING SUPPLIES and REGISTRAR OF DEEDS and SHERIFF OF ZIMBABWE
Ruled By: MATANDA-MOYO J

View Appeal
SC61-21 : COSMA CHIANGWA vs DAVID KATERERE and ROBERT CAMPBELL LOGAN and ISRAEL GUMUNYU and REGISTRAR OF DEEDS and EDMOND CHIVHINGE and MASTER OF THE HIGH COURT
Ruled By: BHUNU JA, MATHONSI JA and CHITAKUNYE AJA

Appealed
HH122-11 : DAVID KATERERE vs COSMA CHIANGWA and ROBERT CAMPBELL-LOGAN and ISRAEL GUMUNYU and REGISTRAR OF DEEDS and EDMOND CHIVHINGE and MASTER OF THE HIGH COURT
Ruled By: MAVANGIRA J

SC77-21 : TRIANGLE (PRIVATE) LIMITED vs FUNGAI MUTASA (NO) and OTHERS
Ruled By: GARWE JA, MAVANGIRA JA and MAKONI JA

HH94-16 : THE MILTON GARDENS ASSOCIATION and SYRIL MUPANGURI vs TECLA MVEMBE and CHAMPION CONSTRUCTORS (PVT) LTD and REGISTRAR OF DEEDS, HARARE and THE SURVEYOR GENERAL
Ruled By: DUBE J

SC07-17 : CHRIS STYLIANOU and FRED DRIVER AND SONS (PVT) LTD and D.R. HENDRY (PVT) LTD vs MOSES MUBITA AND 25 OTHERS
Ruled By: GWAUNZA JA, GUVAVA JA and BHUNU JA

HH391-17 : ANDREW PASCOE vs MINISTRY OF LANDS & RURAL RESETTLEMENT and W. BUNGU and THE ATTORNEY GENERAL N.O.
Ruled By: FOROMA J

HH801-22 : EQUITY PROPERTIES (PVT) LTD vs AL SHAMS GLOBAL BVI LIMITED and REGISTRAR OF DEEDS N.O.
Ruled By: MANGOTA J

Appealed
CC07-21 : MARX MUPUNGU vs MINISTER OF JUSTICE, LEGAL AND PARLIAMENTARY AFFAIRS and OTHERS
Ruled By: GWAUNZA ACJ, GARWE JCC, MAKARAU JCC, GOWORA JCC, HLATSHAWAYO JCC, PATEL JCC and GUVAVA AJCC

Appealed
CC07-21 : MARX MUPUNGU vs MINISTER OF JUSTICE, LEGAL AND PARLIAMENTARY AFFAIRS and OTHERS
Ruled By: GWAUNZA ACJ, GARWE JCC, MAKARAU JCC, GOWORA JCC, HLATSHAWAYO JCC, PATEL JCC and GUVAVA AJCC

CC08-21 : ZIMBABWE BANKS AND WORKERS UNION and TIRIVANHU MARIMO vs MINISTER OF PUBLIC SERVICE, LABOUR AND SOCIAL WELFARE and THE SHERIFF OF ZIMBABWE and ZB BANK LIMITED
Ruled By: GARWE AJCC, GOWORA AJCC and HLATSHWAYO AJCC

CC11-21 : LIZIWE MUSEREDZA and 385 OTHERS vs MINISTER OF AGRICULTURE, LANDS, WATER AND RURAL RESETTLEMENT and MAPARAHWE PROPERTIES (PVT) LTD and OTHERS
Ruled By: GWAUNZA DCJ, GARWE JCC, MAKARAU JCC, GOWORA JCC, HLATSHWAYO JCC, PATEL JCC and UCHENA AJCC

CC01-22 : LIZIWE MUSEREDZA and 303 OTHERS (LISTED) vs MINISTER OF AGRICULTURE, LANDS, WATER AND RURAL RESETTLEMENT and MAPARAHWE PROPERTIES (PRIVATE) LIMITED and OTHERS
Ruled By: GOWORA JCC, HLATSHAWYO JCC and PATEL JCC

SC57-18 : DRUM CITY (PRIVATE) LIMITED vs BRENDA GARUDZO
Ruled By: GWAUNZA DCJ, MAKARAU JA and MAKONI JA