Default Judgment re: Default Judgment and Snatching at a Judgment iro Approach and Unopposed Proceedings

HB17-12 : MATILDA NAKAI MATHE vs NYAMBE MATHE
Ruled By: NDOU J

The issue here is whether the plaintiff complied with Order 35 Rule 272(1) of the High Court Rules, 1971.

The salient facts are the following:

The plaintiff issued out, at this court, summons incorporating a declaration on 10 June 2011. The summons, together with the plaintiff's declaration, were served on the defendant personally by the Deputy Sheriff of Bulawayo on 10 June 2011.

The defendant did not contest the summons.

After the expiry of the dies induciae, the plaintiff set the matter down for 28 July 2011. The notice of service of set down was served on the defendant personally on 14 July 2011.

The defendant was not in attendance on 28 July 2011.

It is common cause that the plaintiff did not serve the defendant with a notice described in Rule 272(1) supra. Rule 272(1) provides:

“(1) In an action for restitution of conjugal rights, divorce, judicial separation or nullity of marriage where the defendant has failed to enter appearance –

(a) If the declaration has not been served with the summons, the plaintiff wishing to obtain judgment shall file and deliver his declaration and either simultaneously or subsequently a notice in accordance with Form No.30 calling upon the defendant, if he wishes to defend, to purge his failure to enter appearance to plead, answer or except or make claim in reconvention within twelve days of the date of delivery of the notice and informing him that in default thereof judgment will be prayed against him;

(b) If the declaration has been served with the summons, the plaintiff wishing to obtain judgment shall file and deliver the aforesaid notice to the defendant after the expiry of the dies induciae, as calculated in the proviso to Rule 119.

(2) Thereafter, the plaintiff may –

(a) In the case of an action for conjugal rights, set the case down for trial without notice to the defendant.

(b) In the case of a claim for a final order of divorce, for judicial separation, or for nullity of marriage, set the case down for trial but shall serve personal notice of set down upon the defendant, and, in such case, the court shall not proceed to trial unless it is satisfied that the personal notice of the defendant has been drawn to the fact that the matter has been set down for trial or that for good and sufficient reason the giving of personal notice is impracticable.”…,.

Reading Rule 272(1)(b) supra, in isolation, the plaintiff is not entitled to the order prayed for because she did not file and deliver to the defendant the notice defined in Rule 272(1)(a) supra.

But, when Rule 272(1) is read with Rule 269A a different picture emerges.

Rule 269A reads –

“The summons commencing an action mentioned in this Order may, at the option of the plaintiff, be issued in Form No.30A, to which a copy of the plaintiff's declaration shall be annexed, in which case the provisions of Rule 272 shall not apply to such an action.”…,.

The summons in this case was issued in Form 30A and a copy of the plaintiff's declaration was annexed thereto. Both the summons and declaration were served on the defendant.

In the circumstances, the provisions of Rule 272 do not apply. There is no need for the plaintiff to file and deliver the notice prescribed in Rule 272(1).

This construction does not, however, dispense with the requirement for the personal service of the notice of set down as discussed in Strydom v Strydom 2003 (1) ZLR 379 (H).

The requirement that there be personal service is not only premised on the provisions of Rule 272. It is also based on the salutary rule of practice. As stated by TREDGOLD CJ in Butler v Butler 1951 SR 122;

“It has always been the practice in this court that where the divorce is sought on the grounds of desertion, the restitution order must come to the personal knowledge of the defendant: in other words, although he has knowledge of the proceedings, and has authorized attorneys to act on his behalf, the court has always insisted that, in its final stages, he should be given personal notice of the proceedings in order that he might reconsider his position.

It seems illogical that in other cases where a divorce reaches its final point it should be allowed to proceed without any notice to the defendant…,.

So, this seems to me to be a salutary rule of practice.”…,.

See also Africa v Africa 1944 CPD 78; Le Roux v Le Roux 1957 R & N 831 (SR); and Barkehuizen v Kruger 1959 (3) SA 506 (O).

This salutary rule is informed by the irreparable harm that may result in a final decree of divorce. Divorce results in a finality in the change of status of the parties.

Accordingly, because the plaintiff filed and served the summons in Form 30A, together with a declaration, there is no need for her to serve the notice prescribed in Rule 272.

It is for these reasons that I granted the divorce as prayed for.

HH05-10 : JACKSON MUGUTI vs UBOXIT WORLDWIDE (PVT) LTD AND TWO OTHERS
Ruled By: MAKARAU JP

At the trial of this matter, the defendants were in default. They were duly served with the notice of the trial on 1 October at their chosen address for service. The plaintiff moved for default judgment to be entered against the defendants as prayed for in the summons.Entertaining doubts as to whether or not ...

HH167-12 : ZIMBABWE DEVELOPMENT BANK vs GENERAL ACCIDENT INSURANCE COMPANY
Ruled By: CHIWESHE J

At the hearing of this matter the plaintiff Bank was in default. Counsel for the defendant sought and was granted leave to argue the matter on the merits. Judgment on the merits of the case was granted in favour of the defendant with costs. I indicated that my reasons for judgment would follow.

HH88-12 : BLUMO TRADING (PRIVATE) LIMITED t/a COLCOM COMMODITIES vs MORGAN MUDUVURI
Ruled By: MATHONSI J

The respondent was served with the applicant's heads of argument on 23 May 2011. In terms of Rule 238(2a) of the High Court Rules, as the respondent is represented by a legal practitioner, the said legal practitioner was required to file heads of argument not more than ten days after ...

HH13-08 : JEOFREY G MUKORERA vs OCEAN BREEZE ENGINE & COOLING SYSTEMS
Ruled By: MAKARAU J

The distortions caused by the galloping inflation currently characterizing our economy are graphically shown, in part, by the claims that are being brought before the courts. The above, in my view, is one such example. While inflation is a fact that they must take judicial note of, courts must, in my view, be wary that the distortions ...

While inflation is a fact that they must take judicial note of, courts must, in my view, be wary that the distortions caused by inflation in the economy are not transported wholesale into the law thereby causing distortions of legal principles.

The plaintiff operates a butchery from Muzarabani Business Centre in Mashonaland Central. In 2003, he thought of adding to his assets by having a freezer room installed at the butchery. He approached the defendant, who, in or about September 2003, gave him a quotation for installing a 6x8x8 cubic metre cold room for $13 million. In terms of the written quotation, the plaintiff was required to pay 50% of the total cost as a deposit and to show confirmation of the order. A deposit in the sum of $5,4 million was duly paid on 29 September 2003 and installation was to be done in a week's time. On 17 October 2003, the defendant delivered the cold-room, ready to install and commission it. Upon realizing the error, the plaintiff declined to accept delivery and installation of the coldroom whereupon the defendant returned to Harare with the cold room. Efforts to get the defendant to return and install a freezer room were in vain, prompting the plaintiff to approach his legal practitioners for assistance.

In April 2004, the defendant refunded the sum of $1,955,000= to the plaintiff, retaining the sum of $3,445,000= as necessary expenses incurred in manufacturing and attempting to deliver the cold room to the plaintiff. Unhappy with this development, the plaintiff issued summons claiming a payment of the sum of “$13,000,000= of $2,480,000= which is current $657,200,000=, with room to in increase it to match the current costs of installing a freezer room at trial”…., together with interest at the prescribed rate from date of the deposit to date of payment in full and costs of suit.

At the trial of the matter, the claim was amended to $53 billion.

The matter was defended.

In its plea, the defendant denied that it ever quoted the plaintiff for the supply and installation of a freezer room and averred that it quoted it for the supply and installation of a cold room.

At the trial of the matter, the defendant was in default, and, in terms of Rules 59A and 60 of the High Court Rules, 1972 I called upon the plaintiff to lead evidence on the amount of his claim.

The plaintiff's evidence was largely a rehash of the facts of the matter as I have detailed above. In addition, the plaintiff adduced into evidence a quotation that he obtained from a company called Commercial Refrigeration in the sum of $202 billion. The date of the quotation is not given on the handwritten quotation which also includes a component of foreign currency.

When asked to explain his claim in the sum of $53 billion, the plaintiff had the following to say, in part:

“I am claiming an amount that has the same value as the amount that I paid to the defendant in 2003.”

He went on, further, to explain that the amount he is claiming is one quarter of the total amount of the quotation from Commercial Refrigeration just as the amount that the defendant retained was a quarter of the quotation it had given him.

At the commencement of the trial I was under the impression that the plaintiff's claim was one of damages.

It was with this response that it appeared to me that he is simply claiming a refund of the amount that the defendant retained as expenses of manufacturing the cold room and travelling to and from Muzarabani with the wrong refrigeration unit, not at its nominal value, but, at its appreciated value, taking into account the impact of inflation.

His claim appears to me to be one for a debt and not for damages arising ex contractu.

The plaintiff's evidence was to the effect that the sum of $3,445,000= that was retained by the defendant in 2004 now has the same value as $53 billion which he claims. It became clear to me, from this response, that the plaintiff is raising inflation as the basis of his claim.

The plaintiff's stance was re-affirmed by counsel for the plaintiff when he addressed me on the issue.

His argument was to the effect that the plaintiff is entitled to claim the same percentage of the amount that it will now cost to supply and install a freezer room as was the percentage of the amount that the defendant retained in 2004 to the cost of installing a cold room in 2004.

Judges have often used telling adjectives to describe submissions they did not expect from legal practitioners such as “startling” or “ingenious”. Neither term aptly describes my sentiments at being presented with this submission.

I hasten to remark that the matter before me, although set down for trial, proceeded as an application for default judgment.

Ordinarily, a request for default judgment is hardly denied, as, by his default, the defendant is taken to have admitted all the averments made by the plaintiff. I am also aware of the school of thought that holds the view that it is not for a judge or the court determining an application for default judgment to act as the unpaid and un-briefed counsel for the defendant who is in default and deny a plaintiff judgment on issues that the defendant may not have raised if in attendance. Thus, a court dealing with an application for default judgment is perfectly within its rights to enter a default judgment not on the merits of the matter but on the technical basis that the defendant is in default even in cases where it is of the opinion that a defence may have been available to the defendant.

There is, in my view, however, a limit to the non-participatory role that a court may play in an application for default judgment. In my view, where a claim is clearly not well founded in law, a court may not give judgment on such a claim simply on the basis that the defendant is in default. Similarly, where damages have not been adequately proved to the satisfaction of the court, judgment may not be entered in the claimed sum; again, simply on the basis that the defendant is in default.

The basis for drawing the limit to the non-participatory role of the court, in my view, is the fundamental principle that after the parties have made their submissions to the court, the decision or order that is made is solely that of the court and such decision or order must find a basis in law at all times.

In my view, the claim before me is a case compelling me to abandon my non-participatory role for two reasons;

(i) Firstly, I take the view that the plaintiff's claim, being a claim in which the alleged debt has been appreciated to take into account inflation, is badly founded in law. Courts will take inflation into account when assessing damages in certain delictual claims but inflation, on its own, cannot be a cause of action.

In Edward Marume and Another v Todd Muranganwa HH27-07, I had occasion to deal with the issue of inflation in another application for default judgment. The following were my views on the matter:

“In my view, the issue involves a detailed discussion of 'currency nominalism' and 'revalorization' and the place of such concepts in Zimbabwean Law.”

The concept of currency nominalism has been held to be applicable in all aspects of South African Law. See SA Eagle Insurance Co Ltd v Hartley 1990 (4) SA 833. In view of the provisions of the Prescribed Rate of Interest Act, there is a strong case for arguing that the concept also underlies all aspects of Zimbabwean law and that revalorisation, or the appreciation of debts to take into account inflation has no place in our law.

Again, like in Edward Marume and Another v Todd Muranganwa HH27-07, I have not been adequately addressed on the issue.

I hold the view that the distortions caused by inflation in the economy should not lead to the wholesale distortion of legal principles that have withstood the test of time in a bid to find legal solutions to a problem that is not legal in nature and origin and may prove to be transient. I am yet to be persuaded that revalorization is part of our law of debt collection.

Assuming that I have erred in classifying the plaintiff's claim as one based on inflation, and that properly it is one seeking damages for an alleged breach of contract, then, in my view, two other issues arise;

(i) Firstly, it has not been proved that the retention of the sum of $3,455,000= was wrongful in any way or that it constituted breach of the contract between the parties. In fact, it would appear to me that the parties were not ad idem as the plaintiff requested for a freezer room and the defendant supplied a cold room. The offer and the acceptance did not coincide and the parties never had a contract in my view.

Even if one were to be generous and hold that there was a contract that the defendant breached by supplying the wrong refrigeration unit, the damages suffered by the plaintiff for the alleged breach have not been adequately proved.

It cannot be said that the quotation from Commercial refrigeration in any way represents the correct loss of value in money between 2004 and the date of the hearing. It has also not been proved that the quotation by Commercial Refrigeration has any relationship to the quotation given by the defendant in 2003. One was quoting for a cold room of different dimensions and the other was quoting for a freezer room of entirely different dimensions.

How the one can be tendered as proof of the value of the other was not argued before me.

Despite much effort, I cannot figure out a possible argument on the relationship myself.

For the above reasons, I cannot accede to the prayer for default judgment in the matter in the amount prayed.

I have anxiously considered whether I can grant judgment in the sum of $3,455= that was retained by the defendant in 2004 together with interest thereon at the prescribed rate from the date of the retention to date of payment. The amount involved, even with interest, is so pitiful, in my view, as to make a mockery of the justice delivery system where I to order its payment. In m view, the plaintiff is best served by the order that I make below.

In the result, I make the following order:

1. The defendant is granted absolution from the instance.

2. The plaintiff is hereby granted leave, after effecting necessary amendments to his claim, and upon service of such on the defendant, to set the matter down for judgment in terms of Rule 58 of the High Court Rules, 1972.

3. There shall be no order as to costs.

HH122-09 : EMMANUEL NEMUSESO vs DOROTHY MASHITA and LOVEMORE KATAYI and PAULINE MANDINGO and PANGANAYI MASHITA and INNOCENT WOYO and MASTER OF THE HIGH COURT and REGISTRAR OF DEEDS NO
Ruled By: GUVAVA J

The first, third and fourth defendants entered appearance to defend and filed a plea. The second defendant did not enter an appearance to defend….,. At a pre trial conference held on 3 July 2007, before a judge in chambers, the first, third and fourth defendants did not appear; they were held to be in default.

HB09-09 : TERENCE ALAN BLAKE and EDWARD GRAHAM BURROUGHS vs TABS-AVOIN LIGHTING (PVT) LTD and ASMARA COMPANY (PVT) LTD and JONATHAN TAFADZWA JERE and JAIROS MTHONISI MOYO
Ruled By: CHEDA J

This is an application for default judgment. The brief facts are that on or around the 28th of February 2005, the plaintiffs sold to the defendants their shares in the first defendant company, and the agreement was reduced into writing. At the time, the first defendant asked for a loan from the plaintiffs in the sum of $300 ...

HB69-09 : ALEX MUDZINGWA vs SAI ENTERPRISES (PRIVATE) LIMITED
Ruled By: NDOU J

This is an application for default judgment on account that the respondent has been served. The salient facts of this case are the following. The applicant issued out summons on this court on 15 December 2008 wherein he claimed damages against the respondent. The summons were served on the respondent on 16 December 2008. The dies induciae expired ...

This is an application for default judgment on account that the respondent has been served.

The salient facts of this case are the following.

The applicant issued out summons on this court on 15 December 2008 wherein he claimed damages against the respondent. The summons were served on the respondent on 16 December 2008. The dies induciae expired on 6 January 2009. The respondent's legal practitioners filed an appearance to defend a day out of time, on 7 January 2009. On 8 January 2009, the applicant's legal practitioners became aware of this fact and addressed a two-sentence minute to the respondent's legal practitioners in the following terms -

“We thank you for appearance to defend issued on 7^th January 2009. It is out of time and thus invalid.”

This issue was brought to the attention of the Deputy Registrar of this court, who, in turn, returned the appearance to defend to the respondent's legal practitioners on 23 March 2009 with a note couched in the following terms -

“I refer to the above-mentioned matter and return herewith your notice of appearance to defend filed on 7 January 2009. The dies induciae expired on 6 January 2009. In terms of Rule 50 of the High Court of Zimbabwe Rules, as amended, a defendant who fails to enter appearance shall be deemed to be barred. It is trite that a defendant has to enter appearance before the expiry of the dies induciae.”

The respondent's legal practitioners wrote to the applicant's legal practitioners on 5 February 2009 undertaking to notify them of the respondent's position “next week”. This did not happen, and about a month later the applicant's legal practitioners sent a reminder on 26 February 2009 and threatened -

“If, therefore, we do not hear from you by the 5^th March 2009 – exactly one month (and one week) from your said letter – we shall proceed to apply for default judgment. We hope it will not have to come to that.”

The respondent did nothing, and on 4 March 2009, the applicant's legal practitioners wrote to the respondent's legal practitioners -

“We are proceeding with our application for default judgment.”

The respondent did nothing until 24 March 2009 when the legal practitioners wrote to the applicant's legal practitioners as follows -

“Sincere apologies for any inconveniences, as far as the above matter is concerned, our client sought a second opinion from another legal practitioner, and we are still waiting for the outcome. Please bear with us, and we really appreciate your patience.”

The applicant's legal practitioners responded on 25 March 2009 as follows -

“The matter is now beyond redemption. Our letters have been ignored and your client is taking his “sweet time” to furnish you with instructions. No urgency at all is being exhibited by either of you. We are thus proceeding in our client's best interests.”

Once more, the respondent did nothing until 14 April 2009 when the legal practitioners addressed a minute to the applicant's legal practitioners in the following terms -

“We refer to our last letter dated 24^th March 2009.

This is to inform you that our client has received the second opinion, and we will be advising you of its final decision next Monday the 20^th of April 2009, so that we can all know the way forward.”

Nothing happened on 20 April 2009.

The applicant's legal practitioners responded on 20 April 2009 -

“You totally surprise us. Your client is barred. We told you we are applying for default judgment. You have ignored that and not even applied to uplift the bar. You obviously know what you are doing.

Our only interest, though, in your client's decision today will be in whether they are prepared to pay what our client has claimed without need to execute.”

The respondent did nothing until this matter was set down, and on 12 May 2009 they filed an application for upliftment of the bar. This was only done as a direct result of the set down of this matter.

HB74-09 : PATRICK SIKHOSANA vs MTHANDAZO DUBE and SIBANGANI NCUBE and VUSA DUBE
Ruled By: KAMOCHA J

At the commencement of the trial, counsel for the plaintiff announced that the second and third defendants had been included in the Agreement by the first defendant. Since those two defendants did not file any opposing papers, and did not appear for the hearing, the plaintiff would proceed against the first defendant in their absence, ...

HH05-10 : JACKSON MUGUTI vs UBOXIT WORLDWIDE (PVT) LTD AND TWO OTHERS
Ruled By: MAKARAU JP

On the basis of the foregoing, I cannot grant default judgment as prayed for. In the result, I make the following order - The plaintiff's claim is dismissed with costs.

HH17-10 : TOMU NYANDORO vs ESTATE LATE PAULINO OLIVERIA MARTINS represented by the Executor and THE MASTER OF THE HIGH COURT and CHRISTOPHER MARTINS
Ruled By: CHITAKUNYE J

On 13 November 2009, the case was again set down for hearing. On this occasion Mr. Takaindisa appeared for the respondents. As had been the case with Mr. Uriri, he indicated that he had just been briefed. As no application for the upliftment of the bar had been made he found himself gagged. The most he ...

On 13 November 2009, the case was again set down for hearing. On this occasion Mr. Takaindisa appeared for the respondents.

As had been the case with Mr. Uriri, he indicated that he had just been briefed. As no application for the upliftment of the bar had been made he found himself gagged. The most he could say was that the instructing legal practitioners had not been forthcoming with the reasons for the delay in filing heads of arguments hence no application for the upliftment of the bar could be made.

It was in these circumstances that counsel for the applicant applied for judgment as the respondents were in default. He, however, urged the court to consider the application on the merits.

In as far as the respondents were barred, and thus could not be heard on the merits, it is my view that any judgment will be in the same vein as a judgment granted in the absence of the other party. In Christopher Zvinavashe v Nobuhle Ndlovu SC40-06..., GWAUNZA JA opined that -

“The defining feature or essence of a judgment granted after a party fails to appear is the 'default' of the absent party, that is, his failure to do what he ought to have done.”

In casu, the respondents failed to file their heads of arguments within ten days after they had been served with the applicant's heads of arguments. The respondents further failed to apply for the upliftment of the bar, and, so, effectively, the respondents could not be heard.

I am of the view that no case has been made to consider the application on the merits. I will thus grant a default judgment as follows -

It is hereby ordered that:-

1. The first and second respondents be and are hereby directed not to include the Nissan Diesel UD290 WF Horse into the estate of the late Paulino Oliveria Martins DR1308/07.

2. The first and third respondents be and are hereby directed to release the Nissan Diesel UD WF290 Horse and all the relevant papers to the applicant to enable the applicant to forthwith register the vehicle into his name within seven (7) days of the granting of this court order.

3. Upon the first and third respondent's failure, the Deputy Sheriff be and is hereby authorized to take the said vehicle and sign all relevant papers to enable the applicant to register the vehicle, and handover the vehicle to the applicant.

4. The first and third respondents shall bear the costs of suit.

HH34-10 : CHIRIGA ESTATES (PVT) LTD and MILRITE FARMING (PVT) LTD and SILVERTON ESTATES (PVT) LTD vs MINISTER OF LANDS AND RURAL RESETTLEMENT and MR E. PORUSINGAZI and EIGHT OTHERS
Ruled By: MUSAKWA J

Although the third to sixth respondents were in default, I was not moved to grant the application against them. Suffice to note that the case against them is plagued with the same material inadequacies as that against the second respondent. It therefore means that the application fails.

HH67-10 : JAMES MUTETWA vs BARRIE DIXON and MARKO MAVHURUNE N.O. (as Executor Estate Late Samuel Mushaninga) and KENIAS MUTYASIRA N.O. (as Executor Estate Late Salome Chisvo) and REGISTRAR OF DEEDS
Ruled By: MAKARAU JP

The first respondent was served with the application through service upon one Violet Tanda at the disputed property. It is not indicated on the certificate of service who Violet Tanda is and in what capacity she accepted service of the court application on behalf of the first respondent as it is common cause that the ...

HH118-10 : JOHN STRONG (PRIVATE) LIMITED and TOBS STRONG (PRIVATE) LIMITED vs WILLIAM WACHENUKA and MINISISTRY OF LANDS, AGRICULTURE AND RESETTLEMENT
Ruled By: GOWORA J

The insistence by the second respondent..., that the matter should be argued on the merits despite the absence of the first respondent, who is the party against him the substantive relief was being sought, has placed this court in something of a quandary as the first respondent was in default. I will therefore only deal ...

HH167-10 : TUSILAGO (PRIVATE) LIMITED vs HOMELINK (PRIVATE) LIMITED
Ruled By: MAKONI J

The plaintiff issued summons out of this court claiming payment of storage charges for the period April 2008 to June 2009 in respect of 12 kitchens in the sum of USD18,0000=, interest at the rate applicable in the United States of America from date of summons to date of settlement. It also claimed storage ...

HH135-10 : TREVOR GIFFORD vs I. MUGOMBA and MUYESU and RONALD MUCHENGA and COMMISSIONER GENERAL OF POLICE
Ruled By: CHIWESHE JP

The second and third respondents failed to attend despite service of the notice of set down having been effected, nor did they file any papers. As for the second and third respondents, an order will be made against them in default.

View Appeal
HH233-10 : YAKUB SURTEE vs SHAUN EVANS and PAUL FRIENDSHIP and COLLIN MacMILLIAN and RODNEY FINNIGAN and ACROSS ENTERPRISES PL
Ruled By: MTSHIYA J

In this application, the applicant seeks the following relief:

“1. The respondents be and are hereby held to be in contempt of this Honourable Court Order granted on 19 May 2009.

2. The respondents be and are hereby incarcerated for a period of ninety (90) days each.

3. Costs of this application shall be paid by the respondents.”

The background to the relief sought can briefly be stated as follows:

On 4 June 2008, the applicant instituted legal proceedings in this court by way of summons. The relief sought therein was:-

“(a) An order that the first, second, third, fourth, and fifth defendants supply and deliver to the plaintiff the total of 47,500 litres of fuel within forty eight (48) hours of service of this order upon them failing which the Deputy Sheriff be and is hereby authorized to recover the fuel and deliver it to the plaintiff.

(b) Cost of suit.”

In terms of the declaration to the summons, the above claim arose out of the fact that in July 2006 the first, second, third, and fourth respondents (then defendants) as directors of the fifth respondent (then also defendant) entered into a verbal agreement with the applicant (then plaintiff) whereby the respondents agreed to use the applicant's service station for the storage of their fuel. For the usage of the service station by the respondents, the applicant would receive 2,500 litres of fuel per month in lieu of monthly rent.

At the commencement of the agreement, the applicant made available to the respondents 30,000 litres of petrol and 10,000 litres of diesel. This means that a total quantity of 40,000 litres of fuel were due to the applicant at termination of the agreement in August 2007.

In addition to that quantity, the respondents were liable for 7,500 litres of fuel in respect of three months outstanding rentals. That brought the total quantity of fuel due to the applicant to 47,500 litres.

The above quantity of fuel forms the basis of the court order obtained from this court by the applicant on 19 May 2009 which order reads as follows:-

“1. The defendants, jointly and severally, the one paying the others to be absolved, deliver to the plaintiff 47,500 litres of fuel within forty-eight (48) hours of service of this order, failing which the Deputy Sheriff be and is hereby authorised to recover the fuel and deliver it to the plaintiff.

2. Cost of suit.”

The respondents did not deliver the fuel within 48 hours as directed in the above order. The Deputy Sheriff was then mandated to recover the fuel, and, on 22 July 2009, the Deputy Sheriff issued a 'Nulla Bona' return of service.

It is the alleged non-compliance with the above order that has led to the current proceedings.

I first heard this application on 30 July 2010. At the commencement of the hearing, the first and second respondents applied to file heads of arguments out of time. The application was not opposed. I allowed it.

The third, fourth, and fifth respondents were in default and had not filed any opposing papers.

The applicant applied for default judgment.

I initially granted default judgment against the third, fourth, and fifth respondents. However, I later thought it best to reserve my decision on the issue of default judgment until a full hearing of the application with respect to the remaining respondents who had filed opposing papers. I then caused an attendance of both parties in my chambers on 11 August 2010 where, in terms of the Rules, I altered my earlier decision on default judgment against the third, fourth, and fifth respondents.

HH244-10 : JARVIS MUDZENGERERE vs ESTATE LATE JACKSON JEKERA (As represented by Japson Jekera ) and CHITUNGWIZA MUNICIPALITY and HEZEKIA MUZOPA
Ruled By: CHITAKUNYE J

At the hearing, the plaintiff's counsel applied for default judgment against the first and second defendants. He argued that after the matter HC1375/91 was referred to trial the plaintiff filed the requisite declaration and asked the first defendant to plead. The first defendant did not file any plea; as a result the plaintiff served him with a ...

At the hearing, the plaintiff's counsel applied for default judgment against the first and second defendants.

He argued that after the matter HC1375/91 was referred to trial the plaintiff filed the requisite declaration and asked the first defendant to plead. The first defendant did not file any plea; as a result the plaintiff served him with a notice to plead and intention to bar. In as far as the first defendant did not file a plea he is automatically barred.

Counsel for the third respondent opposed the application contending that the plaintiff had not served the first defendant.

At the end of the argument and as is evident from the sequence of events outlined…, it was common cause that at the time HC1375/91 was referred for trial Jackson Jekera was no more. It was also common cause that the plaintiff took over a year to attempt to serve a declaration which should have been served in 30 days from the date of the judgment. It is also not disputed that the plaintiff was notified that Jackson Jekera had died. Despite that notice the plaintiff did not seek to substitute, or serve on the executor of the estate late Jackson Jekera. Instead, the plaintiff kept on serving documents on Ziumbe & Mtambanemgwe - even after that firm had indicated their client had died and no executor had been appointed to their knowledge and had renounced agency.

The question one may ask is: what is the effect of the demise of a party to court proceedings in this respect?

The plaintiff's insistence that service on Ziumbe & Mtambanengwe of the declaration and other subsequent documents was valid was without merit. It should be clear that once a legal practitioner's client dies that legal practitioner ceases to have that client. The legal practitioner's mandate dies with the client. The legal practitioner cannot grant himself the mandate to act for or to represent the estate of his late client. It will be upon the executor, or whoever will be placed in charge of the estate, to give mandate to legal practitioners of his choice to represent the estate of the late in any legal proceedings.

In casu, the plaintiff's legal practitioners ought to have realized the need to substitute the first defendant with the executor of the estate as soon as they learnt of his demise. Upon ascertaining the executor it was incumbent upon them to serve the declaration on that executor in compliance with the directive in HH170-92.

In as far as the plaintiff was required to serve his declaration on the executor of the estate late Jackson Jekera in terms of HH170-92 that was not done. It cannot therefore be said that that executor is in default.

As a consequence, the plaintiff's application for a default judgment against the estate late Jackson Jekera (the first defendant) could not succeed.

HB01-10 : CHIPO JHAMBA vs ALETA V. MUGWISI
Ruled By: CHEDA J

This is an application for a default judgment for adultery damages.On the 26th of November 2008, the plaintiff sued for adultery damages in the sum of US$50,000. I granted the application for default but amended the claim to US$500 with an undertaking to give my reasons for the reduction of ...

HB27-10 : PATIENCE MOYO and ZIVANAYI MWEDZI and ANDREW BALENI and MARGRET MREWA and EDMORE VETERAI and OTHERS vs BULAWAYO KNITWEAR (PVT) LTD and MESSENGER OF COURT, BULAWAYO DISTRICT
Ruled By: KAMOCHA J

Only three of the eleven tenants filed opposing papers while eight of them did not. On 13 August 2009, a default judgment was entered against the eight (8) who had not filed any opposing papers. The case of the three (3) who had filed opposing papers was postponed. About a month later the eight (8) ...

HH48-13 : MELINA MATSHIYA (In her capacity as Executrix testamentary for Estate late ETTORE FUMIA) vs GEORGE FUMIA and ELLEN FUMIA and FALCON HAULIERS (PRIVATE) LIMITED
Ruled By: MAWADZE J

The tragic state of affairs in this case is that the father (who later passed on) and son have been engaged in a seemingly unending and bruising legal battle for over a period of seventeen years. Even after the death of the father the swords are still drawn out and the battle far from ...

HH346-13 : WALKTALL (PVT) LTD vs SHEPHERD TUNDIYA
Ruled By: HUNGWE J

This is an oral application made in chambers at the instance of the plaintiff on the date set down for a pre-trial conference.

HH177-11 : J. MAMBARA N.O. (in his capacity as executor dative of the estate of the late Wilson Madziva) vs CAROLINE KUNAKA and BOBBY MANGODZA and OTHERS
Ruled By: MUTEMA J

Over and above the foregoing, it is pertinent to note that the plaintiff did not file any plea to the first defendant's counter claim for eviction and holding over damages. The court can still enter default judgment for the eviction.

HH355-13 : ENNOCENT CHIDAWANYIKA vs TATENDA CHINYOWA and ZIMBABWE ELECTRICITY TRANSMISSION AND DISTRIBUTION COMPANY
Ruled By: MTSHIYA J

The first defendant never entered any appearance to defend and on 15 May 2011 the plaintiff obtained default judgment against him.

View Appeal
HH61-12 : ZIMBABWE OPEN UNIVERSITY vs GIDEON MAGARAMOMBE and THE DEPUTY SHERIFF HARARE N.O.
Ruled By: KUDYA J

This is an application for stay of execution.The first respondent was an Executive Dean in the Faculty of Commerce and Law of the applicant. At the end of his fixed term contract as Dean, a dispute arose on his status. The parties failed to agree on whether he automatically assumed ...

HH568-14 : FBC BANK LIMITED vs DUNLETH ENTERPRISES (PRIVATE) LIMITED and DUNCAN MUKONDIWA and SINIKIWE MUKONDIWA and MARIAN SMEMELWANI MAPANDA and EVA MUZUVA
Ruled By: ZHOU J

The first, second, third and fourth defendants did not oppose the claim. Judgment was accordingly given against them on 28 February 2012.

SC28-14 : SITWELL GUMBO vs PORTICULLIS (PVT) LTD T/A FINANCIAL CLEARING BUREAU
Ruled By: GWAUNZA JA

In chambers in terms of Rule 5 of the Supreme Court Rules.This is an application filed in terms of Rule 31(2) of the Supreme Court Rules.On 9 of December 2013, and upon reading documents filed of record, I dismissed the application with no order as to costs. No opposing papers ...

HH134-15 : SHEM CHIVHUMBA MLAMBO vs ISAAC MUTAMBI PHIRI CHIKATA
Ruled By: ZHOU J

This matter was placed before me as a chamber application for default judgment in terms of Rule 57 of the High Court Rules, 1971. Ordinarily, I would not have written a judgment in such a matter. However, for the reasons which appear below it is necessary for me to give a written judgment on the matters ...

HH147-15 : TENDAI MANGWIRO vs CO-MINISTERS OF HOME AFFAIRS and COMMISSIONER-GENRAL OF POLICE and OFFICER IN CHARGE CID SUSPECTS HARARE CENTRAL POLICE and DETECTIVE INSPECTOR MUKAMBI
Ruled By: MUSAKWA J

In this application for default judgment, the plaintiff seeks an order to the effect that -

“1. The respondents, jointly and severally, pay the applicant the sum of US$78,900.

2. The respondents, jointly and severally, pay the applicant the sum of US$1,537,833=33 being the United States Dollar equivalent of ZW$46,135,000,000.

3. Interest at the prescribed rate (from the 25th January 2013) being the date applicant demanded return of exhibits.

4. Costs of suit on the legal practitioner and client scale.”

The claim by the plaintiff arises from his prosecution before the Regional Court on a charge of theft. He was acquitted on 18 January 2013. He gave notice, in terms of the State Liabilities Act [Chapter 8:14], on 18 March 2013.

Following the acquittal, it is contended that police unlawfully, and unprocedurally released US$78,900 and ZW$46,135,000,000 which had been seized from the applicant to one Andre Nsaka Nsaka.

It is evident that the cash in question, together with some motor vehicles, were not exhibits before the Regional Court.

It is common cause that the plaintiff was arrested on 16 February 2008 on allegations of theft of US$3,000,000 from Andre Nsaka Nsaka. The following items were seized from the plaintiff -

1. US$78,900.

2. ZW$46,135,000,000.

3. Isuzu double cab LX300 vehicle, registration number ABD 4926.

4. Toyota Vista vehicle, registration number ABC 0347.

The two motor vehicles were subsequently released. Trial commenced in November 2008 and was finalised on 25 April 2012.

It is also common cause that although the defendants filed a special plea to the claim they were subsequently barred for not pleading over to the merits.

It is surprising that those who legally represent the State, and those personnel presiding over State institutions, are lax when it comes to litigation. A simple act of filing a defence to a claim that has serious financial implications to the fiscus went begging by failure to adhere to court rules.

The money being claimed was booked under entry 09/08 (Exhibit Book 34) with CID Suspects. As stated previously, it was never booked with the trial court.

When demand was made for its release, the defendants claimed prescription.

The plaintiff sought confirmation, from the Reserve Bank of Zimbabwe, to the effect, that, as at 11 February 2008, the rate of exchange between the US$ and the ZW$ was US$1 to ZW$30,000. The ZW$46,135,000,000 amounts to US$1,537,833=33.

Although the plaintiff's counsel, in his heads of argument, submits this is vindicatory action, this is essentially a claim for damages.

This is because, in his supporting affidavit, the plaintiff claims that the money seized from him was wrongfully released to Andre Nsaka Nsaka - the complainant in the criminal matter. Essentially, the plaintiff is seeking to be placed in the same position he would have been had the money not been released.

He cannot and is not seeking to recover the exact money seized from him because that money is no longer available. Hence the computation of the US$ equivalent of the ZW$46,135,000,000.

The claim for US$78,900 poses no problem. That is the loss the plaintiff suffered when the money was seized from him.

It is the claim for the US$1,537,833=33 that I find a problem with.

In the first place, it does not follow that when an article is seized by police, it is inevitably going to be used as an exhibit at the intended trial. Even the legality of the seizure, just like an arrest, may be challenged. Therefore, the plaintiff's claim of the seized money was not dependent on the outcome of a criminal prosecution.

Having made those observations, this does not excuse the police from conducting themselves in an unacceptable manner. Section 59(1) of the Criminal Procedure and Evidence Act [Chapter 9:07] provides that -

“Subject to subsection (2), if in connection with any article referred to in paragraph (c) of section fifty eight —

(a) No criminal proceedings are instituted; or

(b) It appears that such article is not required at the trial for purposes of evidence or for
purposes of an order of court; or

(c) Criminal proceedings are instituted and the accused admits his guilt in accordance with section three hundred and fifty-six; the article shall —

(i) If the person from whom it was seized may lawfully possess the article, be returned to that person; or

(ii) If the person from whom it was seized may not lawfully possess the article, be delivered to the person who may lawfully possess it; or

(iii) If no person may lawfully possess the article, or if the police officer concerned does not know of any person who may lawfully possess the article, be forfeited to the State.”

There is nothing to show how it was determined who may lawfully possess the seized cash.

It looks like an arbitrary decision to release the money to Andre Nsaka Nsaka was made. It is not clear if this was motivated by the fact that the plaintiff acknowledged owing Andre Nsaka Nsaka US$145,000.

During the criminal proceedings, there was an indication that the police officer who released the money had criminal charges preferred against him. It was not indicated what the outcome of that process was.

It is also not clear why the plaintiff did not join Andre Nsaka Nsaka in the present suit.

It is well established that delictual damages are calculated as at the date of the delict. In this respect see Parish v King 1992 (1) ZLR 216 (S).

The plaintiff justifies his second claim on the conversion of the economy to multi-currency due to the diminution in value of the local currency.

I have already pointed out that there was no legal impediment to the plaintiff challenging the seizure of his money at the earliest opportunity. It seems the plaintiff chose to await the outcome of the criminal proceedings in order to demand the release of the money.

What if he had been convicted?

Commenting on currency nominalism, GROSSKOPF JA, in S.A. Eagle Insurance Co. Ltd. v Hartley 1990 (4) SA 833, had this to say…, -

“This result seems to me to be in conflict with the principle of nominalism of currency which underlies all aspects of South African law - including the law of obligations. Its essence, in the field of obligations, is that a debt sounding in money has to be paid in terms of its nominal value irrespective of any fluctuations in the purchasing power of currency. This places the risk of a depreciation of the currency on the creditor and saddles the debtor with the risk of appreciation. See FARLON and HARTHAWAY Contract: Cases Material and Commentary, 3rd ed, at 719, note 2; HJ DELPORT, Inflation and South African Law (1982) 4 Modern Business Law 115 and A SPANDAU, Inflation and the Law 1975 SALJ 31.”

Nominalism is the norm in the common law of Western States with similar systems to our own. Thus, in Humphrey (1962) 272 US 517…, the United States Supreme Court said:

“An obligation in terms of the currency of a country takes the risk of currency fluctuations and whether creditor or debtor profits by the change the law takes no account of it. Obviously, in fact, a dollar or a mark may have different values at different times, but, to the law that established it is always the same. If the debt had been due here and the value of dollars had dropped before suit was brought, the plaintiff could recover no more dollars on that account.”

A person claiming damages, in whatever form, must prove that they suffered loss in the amount claimed: see Kwindima v Mvundura 2009 (1) ZLR 168 (H).

In so awarding such damages, the court exercises its discretion. In deserving cases, the courts have made awards in foreign currency notwithstanding the cause of action having arisen during the era of the local currency.

I am therefore satisfied that the plaintiff's claim cannot be granted in its entirety. In the result, it is ordered as follows -

(a) That the defendants, jointly and severally, the one paying the other to be absolved, pay the plaintiff the sum of US$78,900.

(b) That the defendants jointly and severally, the one paying the other to be absolved, pay interest at the prescribed rate from the 25th of January 2013.

(c) That the defendants, jointly and severally, the one paying the other to be absolved, pay the costs of suit.

HH177-15 : AFRASIA BANK ZIMBABWE LIMITED vs SIMBARASHE CHIDAKWA
Ruled By: TAGU J

After representations from both sides I granted a default judgement in favour of the plaintiff. The defendant's lawyer has requested for the written reasons. These are they. This matter was set for the Pre-Trial Conference on 4 February 2015 before this court at 1530 hours. Due to other commitments the matter was postponed to 11 February 2015 ...

After representations from both sides I granted a default judgement in favour of the plaintiff. The defendant's lawyer has requested for the written reasons. These are they.

This matter was set for the Pre-Trial Conference on 4 February 2015 before this court at 1530 hours. Due to other commitments the matter was postponed to 11 February 2015 at 1530 hours with the full knowledge of the parties. On 11 February 2015, at 1530, hours counsel for the plaintiff appeared with a representative of the plaintiff. Counsel for the defendant appeared alone without his client. The court queried why the defendant had not filed his Pre Trial Conference papers.

In response to the court's query, counsel for the defendant indicated that he had encountered problems with his client who was out of the country on business. However, he said he had instructions from his client to proceed in his absence. The court brought to his attention that in view of his client's plea to the plaintiff's claims it was imperative that he should have attended with the view of curtailing the proceedings. He insisted that his client feared that if he attended the pre-trial conference he risked losing his employment.

Counsel for the plaintiff, on behalf of the plaintiff, then made an application to have the defendant's defence struck off and for default judgment to be granted in favour of his client.

The basis of his application being that the defendant had not been excused by this court. He submitted that on 6 November 2014 they received a notice from the Registrar of this court directing them to hold a round table conference in terms of the Rules of this court, and to appear on 4 of February 2015 for a pre–trial conference. Pursuant to the Registrar's directive they had a meeting on 19 November 2014 in order to hold a round table conference. The meeting was then postponed indefinitely at the request of the defendant's counsels because the legal practitioners for the defendant could not locate their client. The defendant's legal practitioners undertook to revert back to the plaintiff's legal practitioners by the 28^thof November 2014 for purposes of holding their round table conference. Despite their undertaking to revert back to them, the defendant and his legal practitioners failed to come back until the notice set by the Registrar arrived. In his view, the defendant was in wilful default despite being served with the notice to attend the pre trial conference.

Counsel for the defendant told the court that indeed a round table conference had been arranged, although he was not the one who attended. He confirmed that the defendant was aware of the date of the pre-trial conference but was unable to attend due to his stringent work schedule.

Pre-Trial Conferences are held in terms of Order 26 Rule 182 of the High Court Rules, 1971. Rule 182(4) says -

“(4) The Registrar, acting on the instructions of a judge, may, at any time, on reasonable notice, notify the parties to an action to appear before a judge in chambers, on a date and at a time specified in the notice, for a pre-trial conference, or a further pre trial conference, as the case may be, with the object of reaching agreement on or settling the matter referred to in subrule (2), and the judge may, at the same time, give directions as to the persons who shall attend and the documents to be furnished or exchanged at such conference.”

In casu, the notice sent by the Registrar, dated 13 January 2015, invited the legal practitioners to attend the pre-trial conference promptly, with their clients, on 4 February 2015 at 1530 hours before a judge in chambers. On 6November 2014, the Registrar had sent another note to the parties which read as follows -

“RE: AFRASIA BANK LTD ZIM V S. CHIDAKWA

The above matter refers.

It is directed that parties meet for a round table discussion, in a bid to settle the matter or reach an agreement on possible ways of expediting or curtailing the duration of the trial, before attending the above Pre-Trial Conference. The parties should consider the matters provided for in Rule 182(2) of the High Court Rules during their round table discussions.”

It is clear, therefore, that the legal practitioners were supposed to comply with such directions and to appear before a judge with their clients. The defendant was thus not excused from attending. The defendant was not even co-operating hence the failure by his legal practitioners to file pre-trial conference documents before the date of the hearing. The documents were only tendered when the court raised the issue.

Rule 182(11) provides a remedy to the party who attends the pre-trial conference against the defaulting party. The subrule says -

“(11) A judge may dismiss a party's claim or strike out his defence or make such other order as may be appropriate if -

(a) The party fails to comply with directions given by a judge in terms of subrule (4), (6), (8) or (10) or with a notice given in terms of subrule (4); and

(b) Any other party applies orally for such an order at the pre-trial conference or makes a chamber application for such an order.”

In this case, the legal practitioner for the plaintiff applied, at the pre-trial conference, to have the defendant's defence struck out and to grant a default judgment in favour of the plaintiff in terms of the summons. Such an application has merit. The plaintiff is entitled to the relief sought.

In the result, I make the following order -

The defendant is in default, default judgment is granted in favour of the plaintiff in terms of the summons.

View Appeal
HH425-16 : AFRICAN BANKING CORPORATION OF ZIMBABWE and ABC HOLDINGS LTD vs LESLEY FAYE MARSH (PVT) LTD T/A PREMIER DIAMONDS and OTHERS
Ruled By: CHATUKUTA J

GARWE JA, in GMB v Muchero 2008 (1) ZLR 216…, cited with approval the observations by HATHRON JA…, in Abramacos v Roman Gardens (Pvt) Ltd 1960 R N 1 (SR)…, that: “…, a defendant ought not to be deprived of having an application for condonation disposed of before default judgement is given against him where, ...

SC02-17 : GUOXING GONG vs MAYOR LOGISTICS (PRIVATE) LIMITED and THE REGISTRAR OF DEEDS
Ruled By: ZIYAMBI JA, BHUNU JA and UCHENA JA

It is trite that, save in special circumstances which do not concern us here, no appeal lies to this court against a default judgment which is normally reversed by rescission of judgment or a declaration of nullity. It therefore, follows that in the absence of special circumstances, no valid ground ...

SC67-19 : DANIEL CHINTENGO vs TREDCOR ZIMBABWE (PRIVATE) LIMITED t/a TRENTYRE ZIMBABWE
Ruled By: MALABA CJ, GUVAVA JA and BERE JA

In casu, the appellant`s legal representative was barred from making submissions before the court a quo by virtue of his failure to timeously file heads of argument. As a result, the judgment was granted in default. The question of what is meant by “default” was considered in Katritsis v De Macedo 1966 (1) SA 613 (A)…, as ...

The question of what is meant by “default” was considered in Katritsis v De Macedo 1966 (1) SA 613 (A)…, as follows:

“It is clear from the authorities that the default in regard to a defendant is not confined to his failure to file the necessary documents required by the Rules in opposition to the claim against him, or to appear when the case is called, but comprises also failure to attend Court during the hearing of the matter.”

In the above case, the court, in quoting, VOET, also emphasised that a defendant who is present, but does not make a defence, is deemed to be absent. It held at 618D-E:

“Voet, 2.11.11., makes it even clearer. I quote from Gane's translation:

'Moreover, not only is he who does not attend at all on the day fixed to be accounted a dallier and defaulter, but also he who does indeed attend but does not take in hand the business for the taking in hand of which the day had been appointed. For instance, a plaintiff appears and makes no claim: or a defendant does not challenge the plaintiff's claim when he should do so. He who, though present, makes no defence is surely reckoned in the position of one who is not there; and he who, when called upon, does not plead is deemed to have been futile and is expressly classed as contumacious.'”…,.

It therefore becomes apparent that the appellant, because of his failure to file heads of argument, was not before the court a quo and could not address it. In the circumstances, the court properly entered a default judgment against him.

Having determined that the judgment which was handed down by the court a quo was a default judgment, the question that obtains is whether the appellant could properly appeal against it.

At law, one cannot appeal against a default judgment. Rather, the proper procedure is for the aggrieved party to seek rescission of the judgment.

This position was laid down in Sibanda and Ors v Nkayi Rural District Council 1999 (1) ZLR 32 (S).

In that case, the applicants in an application for rescission of a default judgment sent their legal counsel to appear on the scheduled hearing date, with instructions not to prosecute the application but to seek a postponement. The court turned down the request for postponement and proceeded to dismiss the application. The applicants noted an appeal against that decision. At p 33E-F the court held as follows:

“The present appeal is therefore against the order of 23 May 1997 dismissing the application for rescission of the order made on 8 November 1996.

That order, of 23 May 1997, as I understand it, was effectively a default judgment. The practitioner who appeared for the appellants presented no submissions on the merits. There were no reasons given for judgment. Once the postponement was refused, the appellants were effectively in default. Procedurally, therefore, the appellants should have sought a rescission of the default judgment of 23 May rather than appeal against it.

On this ground alone, the appeal must fail.”

In Zvinavashe v Ndlovu 2006 (2) ZLR 372 (S) the lower court, in granting a default judgment, had proceeded to give reasons thereof. In upholding the nature of the default judgment notwithstanding the reasons given by the court a quo, the Court, per GWAUNZA JA…, held as follows at 375B-C:

“Counsel for the respondent contends, correctly, that a default judgment can only be set aside by a successful application for rescission of the judgment under the rules of the relevant court. The application must be made by the defaulting party himself, as indicated by the expression 'purging his default'. It follows that, in casu, the appellant's default remained un-purged even as the learned judge a quo considered the merits of the matter and gave reasons for his judgment. By virtue of Rule 62, the learned judge a quo could simply have 'absolved' the respondent from the application, that is, dismissed it, as long as he was not considering postponing the application or making any other order. The consideration by the judge a quo of the merits of the case, and the giving of his reasons for judgment, therefore had no effect on the status of the judgment given, which remained that of a default judgment.”

More recently, the position was fortified by BHUNU JA in Guoxing Gong v Mayor Logistics (Pvt) Ltd and Anor SC02-17…, where he re-iterated the position in the following words:

“It is trite that, save in special circumstances which do not concern us here, no appeal lies to this court against a default judgment which is normally reversed by rescission of judgment or a declaration of nullity. It therefore follows that, in the absence of special circumstances, no valid ground of appeal can be laid at the door of this court concerning the propriety or otherwise of a default judgment. Whether or not there was non-joinder or any other irregularity pertaining to the default judgment, that is a complaint to be laid at the court a quo's door and not this court. There being no special circumstances pleaded in this case, this court will not entertain any argument calculated to impugn the validity of the default judgment at hand.”

The reason why an Appellate Court cannot set aside a default judgment on appeal is that the merits of the dispute between the parties will not have been conclusively determined. This is in the sense that the default judgment is susceptible to rescission at the instance of an aggrieved party. An Appellate Court cannot make a pronouncement upon it.

As such, it is for the trial court to make a determination of the dispute as a court of first instance.

In June Chung v Shanique Cunningham [2017] JMCA Civ 22 the Jamaican Court of Appeal, per P WILLIAMS JA, held the following…,:

“[27] Given the main thrust of the submissions made on behalf of the appellant in this regard, it is best to bear in mind the fact that the entering of a default judgment is, in the majority of cases, an administrative process without any real determination of the claim. While the default judgment remains unchallenged or where challenges to it have not been successfully made, it is to be properly considered final on the issues of liability as far as a claimant can then move to have his damages assessed, and the issue of liability cannot then be raised.

[28] The principle which underlies the jurisdiction for setting aside a default judgment has been long established as pronounced in the case of Evans v Bartlam [1937] AC 473. LORD ATKIN at page 480 stated:

'The principle obviously is that, unless and until the court has pronounced a judgment upon the merits or by consent, it is to have the power to revoke the expression of its cohesive power where that has been obtained only by a failure to follow any of the rules of procedure.'”

By parity of reasoning, where a default judgment has not been challenged or has been unsuccessfully challenged, it remains extant and binding. The court seized with the jurisdiction to rescind such a default judgment is the court which granted the judgment.

In casu, it is not in dispute that the appellant subsequently lost the benefit of legal representation and that he made efforts to rescind the default judgment that was granted against him. However, the efforts came to nought and the default judgment, not having been set aside, remained extant.

Having found that the default judgment is extant and that no appeal can lie against it, it was for this reason that the Court found that the appeal was improperly before the Court and consequently struck it off the roll.

HB48-09 : KUNDAYI KWARAMBA vs TITUS NDLOVU and NTANDOYENKOSI NDLOVU (NEE SIBANDA) and REGISTRAR OF DEEDS, N.O. and DEPUTY SHERIFF, BULAWAYO
Ruled By: CHEDA J

This is a court application for a transfer of property whose relief is couched as follows: “It is ordered that:- The Respondent be and is hereby ordered, directed, authorized and compelled to proceed with the transfer of Stand No.7204, Nketa 9 Township, Bulawayo from 1st Respondent to Applicant's names notwithstanding any pending cases under HC113/03, HC1549/03, HC131/03 and HC176/07 and ...

Appealed
HH307-16 : ASSWELL GURUPIRA and JEAN GURUPIRA vs EARTHMOVING & CONSTRUCTION COMPANY PL and SANDRA MUIR and THE REGISTRAR OF DEEDS and THE SHERIFF and THE DEPUTY SHERIFF and JOHN LEGGATTE
Ruled By: MAKONI J

The present application was filed on 7 March 2008 and has raged on with various twists and turns, culminating in the hearing before me. The background facts are that, on 25 May 2007, the applicants (the Gurupiras) and the second respondent (Muir) entered into an agreement whereby Muir sold to the Gurupiras two (2) issued shares ...

The present application was filed on 7 March 2008 and has raged on with various twists and turns, culminating in the hearing before me.

The background facts are that, on 25 May 2007, the applicants (the Gurupiras) and the second respondent (Muir) entered into an agreement whereby Muir sold to the Gurupiras two (2) issued shares in the first respondent (the company). The company is the registered owner of a certain piece of land situate in the District of Salisbury Town measuring 3,066 square metres commonly known as 98 Churchill Ave, Gunhill, Harare held under Deed of Transfer Number 39/76 (the property). The shares entitled the holder to an exclusive right of occupation and use of the property.

The applicants aver that they paid the purchase price in instalments. They then encountered problems when they intended to make the final payment as Muir became evasive. The Gurupiras then filed a court application, in HC6660/07, seeking to compel Muir to furnish them with her banking details to enable them to make payment of the balance of the purchase price. They finally paid the balance on 13 February 2008 by cheque.

On 11 December 2007 Muir and the sixth respondent (Leggatte) signed a Shareholders Agreement in terms of which 98 shares in the company were issued and allotted to Leggatte. The Gurupiras got wind of the agreement and they instituted the present proceedings on 7 March 2008 against the company and Muir seeking the following relief;

“Whereupon, after reading documents filed of record and hearing counsel it is hereby ordered that:-

IT IS ORDERED THAT:-

1. The 3^rd respondent is hereby interdicted from transferring the property known as No. 98 Churchill Avenue, Gunhill, Harare also known as a certain piece of land situate in District of Salisbury Town Lands measuring 3,066 square metres under Deed of Transfer dated 7 January 1976 (Registration Number 39/76).

2. The sale of the property to any unknown third party be and is hereby set aside.

3. The property in paragraph 1 above be transferred to Asswell Africa Gurupira and Jean Jane Gurupira and the 2^nd respondent is directed to sign all the necessary documents to transfer.

4. Should the 2^nd respondent fail or refuse to sign the necessary documents to effect transfer the 4^th of 5^th respondent is hereby directed to sign all the necessary documents to effect the transfer by 3^rd respondent to 1^st and 2^nd applicants.

5. The 1^st and 2^nd respondents shall bear all the costs of this application on an attorney client scale.”

The application was served by the Deputy Sheriff on both respondents by placing in a letter box. None of the respondents responded, and, on 21 May 2008, the Gurupiras obtained default judgement. On 16 June 2008, the Gurupiras took transfer of the property into their names. On 23 July 2008, they made an ex parte application, in the Magistrates' Court, for the eviction of the company and Muir and it was granted. On 24 July 2008 the company and Muir and all those claiming occupation through her were evicted.

That is when the company, as represented by Leggatte, became aware of the default judgment, and, on 22 August 2008, it applied for rescission of the default judgement in Case No. 4211/08. The matter was referred to trial after material disputes of fact became apparent. The trial was held before MAFUSIRE J, and, on 19 March, judgment was handed down. The court made the following order;

“DISPOSITION

In the circumstances, this matter is disposed of as follows:

1. The default judgment granted by this court on 21 May 2008, in HC1393/08, is hereby set aside.

2. The Registrar of Deeds is hereby ordered and directed to cancel Deed of Transfer No. 4778/08 over certain piece of land situate in the district of Salisbury, called Stand 12896 Salisbury Township of Salisbury Township Lands, measuring 3,066square metres, dated 16 June 2008 in the name of Asswell Africa Gurupira and Jean Jane Rudo Gurupira and to restore the prior Deed of Transfer No. 39/76.

3. The following residual issues shall be determined in the main application in HC1393/08:

3.1 Whether or not the agreement of sale between the first and second defendants, namely, Asswell Africa Gurupira, of the one part, and the third defendant, namely, Sandra Maureen Muir, of the other part, was duly performed.

3.2. Whether or not the first and second defendants should vacate the premises situate on the property more fully described in paragraph 2 above and which is also known as 98 Churchill Avenue, Gunhill, Harare.

3.3 Whether or not the transfer of shares in the plaintiff company, namely, Earthmoving & Construction Company (Private) Limited, by the third defendant to one John Leggatte, should be set aside.

4. The plaintiff shall file its notice of opposition or other such papers in HC1393/08 within ten (10) days of the date of this order, and, thereafter, the filing of any further documents shall be in accordance with the Rules.

5. The costs of the application and of the trial in HC4211/08, and the costs of the application in HC6660/07 shall all be borne by the first and second defendants jointly and severally, the one paying the other to be absolved.”

The company, in terms of paragraph 4 above, then filed its opposing papers to the present proceedings on 2 April 2014. It took the point in limine, that, the order sought by the Gurupiras was incompetent in that they sought transfer of the property and yet they only bought shares in the company. On the same date, the company filed a counter application for the eviction of the Gurupiras. Again, on the same date, Mr Stevenson filed a Notice of Opposition for Muir. The parties filed further papers up to Heads of Argument.

On 22 January 2015, the Gurupiras filed an application for joinder of Leggatte which he opposed. On 25 February 2016 an order granting joinder of Leggatte was granted. Further pleadings were filed pursuant to the order of joinder. Leggatte also adopted the point as raised by the company. The Gurupiras filed a supplementary affidavit wherein, inter alia, they sought an amendment to the draft order.

The matter was set down for hearing on 21 May 2015. A day before the hearing Mr Stevenson filed a document titled “Take notice that the 2^nd respondent hereby files of record a mandate given to her legal practitioners of record.”

A supporting affidavit by Mr Moyo, Leggatte's legal practitioner, is attached. To the affidavit, Mr Moyo attached a letter allegedly written by Muir and delivered to him by Leggatte who had allegedly received it from Muir's son.

On the day of hearing, Mr Mpofu moved for the amendment of the Draft Order. Both Mr De Bourbon and Mr Stevenson did not oppose the amendment. It was therefore granted. The amended Draft Order seeks the following relief;

“WHEREUPON, after reading the documents filed of record and hearing counsel:

IT IS ORDERED THAT:

1. An order declaring the 1^st and 2^nd applicant to be the lawful shareholders of the entire shares in the 1^st respondent (the company) and that any purported transfer or appointment of directors by the 1^st respondent to the 6^th respondent be deemed null and void.

2. An order declaring the 1^st and 2^nd applicants to be the lawful owners of the 1^st respondent (the company's) sole immovable property being Stand 12896 Salisbury Township situate in the district of Salisbury measuring 3,066 square metres known as No.98 Churchill Avenue, Gunhill, Harare and that the above property be transferred in favour of 1^st and 2^nd applicants.

3. An order that the 2^nd respondent be directed to sign all necessary documents to effect transfer of both the shares and the property.

4. Should the 2^nd respondent fail to sign the necessary documents to effect transfer of the shares and the property, the 4^th respondent is hereby directed to sign all necessary documents for 3^rd respondent to effect the transfer to 1^st and 2^nd applicants.

5. The 1^st, 2^nd and 6^th respondents shall bear all the costs of this application on an attorney and client scale jointly and severally each causing another to be absolved.”

The granting of the application to amend the Draft Order disposed of the point taken by the company and Leggatte regarding the competency of the order sought by the Gurupiras.

Mr Mpofu took the point, in limine, that the second respondent was not properly before the court. He submitted that the default judgment was taken against all respondents. The company applied for rescission of the judgment. In the order by MAFUSIRE J, only the company was given leave to defend the matter. Muir was in default and never applied for condonation.

He further submitted that Mr Stevenson deposed to the affidavit opposing the matter. He avers that after the granting of the default judgement he renounced agency after being instructed to hand over Muir's files to another legal practitioner. He was then prevailed upon by interested parties to act on behalf of Muir. Since the company was directed to file its opposing papers within 10 days of the order, he felt compelled to do the same for Muir.

Mr Mpofu further contended that Mr Stevenson did not have instructions to deal with this matter.

He tells some falsehoods on page 136 paragraph 12 when he said Muir's husband signed the agreement with Legatte on 27 May 2008 and yet, by then, Mr Muir had transferred his one share to his wife and had passed on.

The supplementary affidavit by Mr Moyo, in paragraph 2, is at variance with what appears in Mr Stevenson's affidavit in paragraphs 4 and 5. The position put forward by Mr Moyo is a false position.

In response, Mr De Bourbon submitted that the entire judgment was set aside for both the second and sixth respondents. The judgment dealt with the issue of service of the application on Muir and the company. All the issues that the court opined might be determined in the matter, in paragraph 3.2 of the order also involve Muir. She was therefore properly before the court.

Mr Stevenson submitted that at the time default judgment was taken the issue was transfer of the property and not of shares. He contended that in an emergency one acts to protect his or her neighbour. If the Gurupiras had been successful, it would reflect on his client as she is the one who sold the shares. He submitted that a legal practitioner is allowed to give evidence. He had sought authority from his client's relative and the letters had just been found by Mr Moyo. The fact that he had handed over file HC66660/08 to another legal practitioner did not prevent him to act in an emergency on behalf of his client. He was the one best placed to know the position.

In reply, Mr Mpofu submitted that the fact MAFUSIRE J opined that the issue of service might need determination does not make Muir a party. In any event, service was effected on the domicilium citandi in terms of the agreement. If Muir is not happy then she is the one who must attack it. A Notice of Opposition is filed by the respondent. The legal practitioner can file a supporting affidavit as witness. Mr Stevenson purports to act as an agent when he has no authority. When notice is given that the issue will be taken up, an attempt is made to validate the authority. Mr Stevenson does not do the affidavit himself. Instead, Mr Moyo, the sixth respondent's legal practitioners, deposes to the affidavit. Mr Stevenson filed an affidavit in his own name without purporting to represent Muir.

The issue for determination is whether the second respondent, Muir, is properly before me. I will examine the issue from two angles;

(i) Firstly, whether the judgment by MAFUSIRE J gave Muir leave to defend the matter.

(ii) Secondly, whether the affidavit by Mr Stevenson is properly before me. In other words, is there a Notice of Opposition on behalf of Muir?

In dealing with the first point, it is important to determine whether Muir was served with the court application. There is a Return of Service which was rendered by the Deputy Sheriff which reflects that the court application was served at No. 98 Churchill Avenue, Gunhill, Harare. It was served by placing in a letter-box. The service was on behalf of the first respondent, the company and the second respondent - Muir. In terms of clause 9 of the agreement between Muir and the Gurupiras, Muir chose that address as her domicilium citandi.

It is trite that the return of service of an officer of the court, whether he be the Sheriff, the Deputy Sheriff or the Messenger, has to be accepted as prima facie proof of what was stated therein, capable of being rebutted by clear and satisfactory evidence. See Gundani v Kanyemba 1988 (10) ZLR 226 (SC).

In casu, Muir has not placed any facts before this court, either in the application for rescission on in the present matter, that she was not served with the application. None of the witnesses, in the application for rescission, could testify on her behalf on that aspect. All that Mr Stevenson could say was that he wondered why the application was not served on his law firm. The answer is to be found in clause 9 of the agreement. Service of the process other than as stipulated in the agreement would have fallen foul of that clause.

Having been served, and after the expiry of 10 days, Muir was therefore barred. This is provided for in Rule 233(2) of the High Court Rules, 1971. She did not approach the court to seek upliftment of the bar.

The fact that the company successfully sought rescission of the judgment does not assist her.

MAFUSIRE J was clear in his order. He gave the company leave to file its opposing papers. He did not relate to the position of Muir as she had not made an application for the order to be set aside. She cannot therefore cling to the judgment made in favour of the company and allege that it paved the way for her to file her papers in opposition. MAFUSIRE J could not grant what had not been prayed for.

Coming to the second angle, Muir did not file an affidavit neither has one been filed by a party authorised by her.

In terms of Rule 227(2)(b), every written Notice of Opposition shall be signed by the respondent or by his legal practitioner. In terms of Rule 227(4)(a) an affidavit shall be made by the respondent or by a person who can swear to the facts or averments set out therein.

It is trite that where the Notice of Opposition or affidavit is to be signed by a person other than the respondent, that person must show that he is authorised to do so. The authors HERBSTEIN & Van WINSEN - The Civil Practice of the High Courts of South Africa, 5^th Ed…, put it this way;

“Where an application is made by an agent on behalf of a principal, an averment of the agent's authority is essential, unless it appears from the affidavits filed in the application that the principal is aware of and ratified the proceedings. A statement that the applicant is acting in the capacity of agent for the principal in question is a sufficient allegation of authority to make the application.”

In casu, Mr Stevenson filed an affidavit. It is not clear whether it is an opposing or supporting affidavit. In it he avers that he renounced agency after being asked by Muir to hand over her files to some other legal practitioners. In paragraph 7 he asserts;

“I have been prevailed upon by interested parties to the instant matter to act on behalf of the second respondent in the absence…,.”

It is a telling assertion. He filed the “affidavit” without a mandate from Muir but did so due to some pressure from interested parties.

After the matter had been postponed, Mr Moyo, for Leggatte, filed a supplementary affidavit whereby he asserted that he had discovered a letter from Muirs's son authorising Mr Stevenson to act for Muir.

It is clear that this is an attempt to validate the actions of Mr Stevenson.

Mr Stevenson does not depose to the supplementary affidavit to explain why he was quite categoric in his affidavit that “he had been prevailed upon”. This does not explain why he filed the affidavit in his name without an averment that he had been authorised by Muir to defend the proceedings and to depose to the opposing affidavit.

If the interested parties thought that his evidence would assist them, then he should have deposed to an affidavit which they would attach to their own papers.

In any event, Mr Stevenson does not have personal knowledge about some of the critical matters in this case. He has no independent knowledge of whether the Gurupiras discharged their obligations or not in terms of the agreement. He does not know whether Muir cancelled the agreement, and, if so, how.

Mr Stevenson is either mistaken on the facts or he did not tell the truth in his affidavit. In paragraph 12 of his affidavit he states;

“The agreement signed by the second respondent and her husband, Ramon Charles Muir, on 27 May 2008 with John Leggatte, who signed on 28 May 2008…,.”

It is common cause that the agreement with Leggatte was entered into by Sandra Muir only. By the time of that agreement, her husband was late. She owned the two issued shares in the company with her husband's share having been transferred to her in 2006. Whatever information that he placed before the court is hearsay and it is inadmissible - and such information does not constitute Muir's opposition.

In view of the above there is no opposition filed by Muir and the matter will be related to on that basis.

This leaves the court with the Gurupira's position and that of Leggatte in the main and the counter-application.

Mr De Bourboun contented that, at best, the Gurupiras own two shares of the 100 issued shares in the company. That right is in dispute as they failed to pay the purchase price and the agreement terminated in terms of clause 13. Leggatte owns the remaining 98 issued shares. The Gurupiras have no proof in the form of certificates that they own the two shares. There is no entry in the share register.

The other issues that he addressed, relating to the transfer of the company property to the Gurupiras, were taken care of by the amendment to the draft order.

It was further submitted that you cannot give any relief which impacts on Muir in her absence.

In respect of the counter-application, Mr De Borboun contended that the Gurupiras are in unlawful occupation of the property that belongs to the company in which Leggatte was the majority shareholder. There is no arrangement, contractual or otherwise, in terms of which the Gurupiras can claim a right to reside in or occupy the property.

The Gurupira's position is that they discharged their obligation in terms of the agreement. The agreement still subsists. It makes the agreement with Leggatte a double sale.

It was further submitted that once Muir had sold the two shares, she lost rights to deal with those two shares. She could not do the allotment of the other shares as that is done by directors and not shareholders. She would need a quorum of two (2) directors as provided for in terms of section 169(v) of the Companies Act [Chapter 24:03].

The Gurupira's position can only be responded to by Muir who is not before the court. The position of law is settled on this point. In Fawcett Security Operations (Pvt) Ltd v Director of Customs & Excise & Ors 1993 (2) ZLR 121 (SC) it has stated:

“The simple rule of the law is that what is not denied in affidavits must be taken to be admitted.”

In casu, no evidence has been placed before the court to controvert the Gurupira's assertion that they complied with their obligations. There is also no evidence that the agreement was cancelled. As it is, nothing stands in the way of the grant of the order as sought by the Gurupiras.

In my view, the applicants have not established a legal basis for the property to be transferred into their names. The property is the sole asset of the company. The applicants will be the shareholders of the company. They will have to deal with the property in terms of the Companies Act. Any reference to transfer of the property in the draft order will therefore be deleted.

In view of the findings I made above, Leggatte's counter application cannot succeed.

In the result, I will make the following order;

IT IS ORDERED THAT:

1. An order declaring the first and second applicants to be the lawful shareholders of the entire shares in the first respondent (the company) and that any purported transfer or appointment of directors by the sixth respondent to the first respondent be deemed null and void.

2. An order that the second respondent be directed to sign all necessary documents to effect transfer of the abovementioned shares.

3. Should the second respondent fail to sign the necessary documents to effect transfer of the shares, the fourth respondent is hereby directed to sign all necessary documents to effect transfer of the shares to the first and second applicants.

4. The first and sixth respondents shall bear all the costs of this application on an attorney and client scale jointly and severally each causing another to be absolved.

View Appeal
SC85-20 : JOHN LEGGETT and EARTHMOVING AND CONSTRUCTION COMPANY PL vs ASSWEL GURUPIRA and JEAN GURUPIRA and SANDRA MUIR and THE REGISTRAR OF DEEDS and THE SHERIFF and THE DEPUTY SHERIFF
Ruled By: GWAUNZA DCJ, GOWORA JA and PATEL JA

This is an appeal against a judgment of the High Court handed down on 18 May 2016. BACKGROUND FACTS The facts which gave rise to this appeal are somewhat convoluted. Earthmoving Construction Company (Private) Limited, the second appellant (hereinafter referred to as “the Company”), is a private limited company duly registered as such under the laws of Zimbabwe. The Company ...

This is an appeal against a judgment of the High Court handed down on 18 May 2016.

BACKGROUND FACTS

The facts which gave rise to this appeal are somewhat convoluted. Earthmoving & Construction Company (Private) Limited, the second appellant (hereinafter referred to as “the Company”), is a private limited company duly registered as such under the laws of Zimbabwe.

The Company had, at the time of incorporation, an authorized share capital of $32, divided into 32,000 ordinary shares with a nominal value of $0.001 each. Of those shares, only two had been issued. and were, at the time that these events evolved, owned by one Sandra Maureen Muir (“Mrs Muir”). This, in effect, gave 100 percent ownership of the issued shares to Mrs Muir.

In turn, the Company is the registered owner of an immovable piece of land, situate in Harare, identified as a certain piece of land situate in the district of SALISBURY TOWN LANDS measuring 3,066 square metres (also known as 98 Churchill Avenue, Gunhill, Harare). This property is the sole asset of the company.

On 27 May 2007, Mrs Muir concluded a written agreement of sale with Mr and Mrs Gurupira, in terms of which Mrs Muir sold to them the two shares in the Company. In terms of the agreement between the parties, the shares purchased by the Gurupiras' would entitle them to the “exclusive right of use and occupation” of the immovable property owned by the company. The purchase price for the shares was recorded as ZW$7,000,000,000= (seven billion dollars), payable as to a deposit of ZW$3,300,000= which was acknowledged as having been paid at the time of signing of the agreement. The balance of ZW$3,370,000,000= was to be paid within six (6) months from the date of the agreement. The rate at which the outstanding balance was to be paid as well as the frequency thereof were left to the discretion of the parties.

Although the purchase price was quoted in the local currency, it is common cause that the Gurupiras made sporadic payments sometimes in fuel, sometimes in US Dollars, and sometimes in Zimbabwe Dollars.

Up until the end of June 2007, the Gurupiras had made payment on eight occasions, with payment being made as described above. The total amount paid to Mrs Muir under this arrangement is in dispute between the parties.

On 4 August 2007, the Gurupiras addressed a letter to Mrs Muir indicating that they were encountering challenges raising the balance of the purchase price and sought an extension of the time to make payment but did not specify an exact date of expected payment. The last date for payment under the agreement was 25 November 2007.

A dispute ensued on the manner of payment, the currency of payment, and the place at which payment should be effected.

The Gurupiras alleged that at some point Mrs Muir started refusing payment in the local currency and demanded that the balance be paid in foreign currency. Mr Gurupira advised Mrs Muir that he could only pay foreign currency if he was able to access it and that he was not always in a position to obtain it. On 12 November 2007, Mr Gurupira instructed his legal practitioners to write to Mrs Muir to provide an account into which payment of the outstanding balance of the purchase price could be deposited. There was no response.

On 23 November 2007, the Gurupiras filed an application in the High Court seeking an order for Mrs Muir to provide a Bank account into which payment of the outstanding balance of the purchase price could be paid. In addition, they sought an order for specific performance by Mrs Muir for the transfer of shares in the company to themselves against a tender of payment of the balance of the purchase price.

This application never saw the light of day having been withdrawn before it could be set down.

The record shows that on 6 September 2007, the Gurupiras made a payment through wire transfer directly to Israel where Mrs Muir was now residing. Also on record is a cheque payment, in February 2008, into a Standard Chartered Bank account bearing Mrs Muir's name.

It is common cause that during the period following the filing of the above mentioned application Mrs Muir concluded a series of agreements with the first appellant, (“Leggett”).

On 11 December 2007, Mrs Muir and Leggett concluded an agreement in terms of which the latter would subscribe to 98 ordinary shares in the company. Subsequently, on 27 May 2008, Leggett concluded an agreement with Mrs Muir in terms of which the former purchased the entire shareholding in the company from Mrs Muir. Just as in the case of the Gurupiras, the purchase entitled him to “exclusive use and occupation” of the immovable property which is the subject matter of this appeal.

Subsequent to the conclusion of the first agreement, the Gurupiras became aware that Mrs Muir had placed advertisements for the sale of the immovable property. As a consequence, on 7 March 2008, under Case No. HC1393/08, the Gurupiras filed an application with the High Court in which they sought, variously, as against the company, interlocutory relief prohibiting the transfer of the immovable property, and, as against Mrs Muir, an order for specific performance in respect of the immovable property. The Registrar of Deeds, the Sheriff for Zimbabwe and his Deputy were also cited as third, fourth and fifth respondents respectively.

On 21 May 2018, the High Court granted an order in favour of the Gurupiras, in default of appearance from Mrs Muir and the company, as claimed in the draft order.

On 16 June 2008 the property was transferred to the Gurupiras under Deed of Transfer No. 4778/08. They proceeded to evict the occupant, one Diniwe Chinyani. She informed Leggett.

An urgent application for rescission of the default judgment was filed on behalf of the company. It was adjudged not urgent and was finally set down for hearing as an opposed matter. However, the matter was referred to trial on the premise that there existed material disputes of fact.

Pending the determination of the application for rescission, the company filed a counter application in which it sought an order for the eviction of the Gurupiras on the premise that it was the owner of the property in question.

On 19 March 2014, after a full trial, the High Court gave an order in terms of which the default judgment was set aside with leave being granted for “the respondent” in the main application to file opposing papers.

The main application was heard by the High Court on 21 May and 18 June 2015. By this time, pursuant to an application by the Gurupiras, Leggett had been joined as sixth respondent by order of the court. An issue arose as to whether Mrs Muir was before the court. The Gurupiras argued that she had not applied for the rescission of the default judgment in the sense that only the company had sought such rescission. It also transpired that Mr Stevenson, who purported to represent her on the day of the hearing, had not filed papers on her behalf nor did he appear to have the mandate to represent her.

On 18 May 2016 the High Court handed down its judgment and issued an order:

1. Declaring that the Gurupiras to be the lawful shareholders of the entire shareholding in the first respondent (the company) and that any purported transfer or appointment of directors by the sixth respondent (Leggett) be deemed to be null and void. (sic)

2. Directing the second respondent to sign all necessary documents to effect transfer of the above-mentioned shares. (sic)

3. That should the second respondent fail to sign the necessary documents to effect transfer of the shares, the Sheriff of the High Court be directed to sign all necessary documents to effect transfer of the shares to the Gurupiras.

4. The first and sixth respondents shall bear the costs of this application on an attorney and client scale jointly and severally each causing the other to be absolved. (sic)

5. Dismissing the sixth respondent's counter-application.

It is this decision that Leggett has brought on appeal...,.

ISSUES FOR DETERMINATION ON APPEAL

Although the Gurupiras obtained an order for specific performance against Mrs Muir, which is the main issue in contention in this appeal, the starting point revolves around the issue of rescission of the default judgment of 21 May 2018.

1. In this appeal, the court has to determine the effect of the order for rescission given by MAFUSIRE J.

2. Consequent thereto is the issue as to whether Mrs Muir, following upon the rescission of the default judgment, was before the court a quo for the determination of the main application.

3. Additionally, there should be a determination as to whether the court a quo was correct in finding that the Gurupiras were entitled to specific performance. For the proper determination of this aspect on the merits, it stands to reason that Leggett and the company could only appeal if Mrs Muir was a party to the proceedings. Her absence militates against their contentions in that regard.

4. Lastly, the court had to decide whether Leggett was entitled to relief in respect of the shareholding transferred to him by Mrs Muir....,.

AD GROUND 3 - WHETHER THE COURT A QUO ERRED IN FINDING THAT THE GURUPIRAS HAD ESTABLISHED AN ENTITLEMENT TO THE TRANSFER OF SHARES

Counsel for the appellants contended that the Gurupiras had not established an entitlement to the transfer of shares in their names.

In my view, this submission could only be made on behalf of Mrs Muir and not the two appellants.

Although Mrs Muir was adjudged not to be before the court a quo, a critical examination of the submissions, both in the High Court and this Court, will tend to show that almost all the points being raised related to Mrs Muir and her relationship with the Gurupiras. I can only say that this is an unfortunate development in the sense that, whatever the relationship between Leggett and Mrs Muir was, it was clear on the papers that counsel for the appellants appeared on behalf of the two appellants, Leggget and the company - and not Mrs Muir.

Leggett was not, and could not claim to be privy to the transaction between Mrs Muir and the Gurupiras. He concedes as much in all the affidavits deposed to by him. On that score, he is not in a position, nor would I find that he was, authorized to speak to it.

When the High Court granted the application for rescission of the default judgment, it set aside the interdict and the order for the transfer of the property to the Gurupiras. The learned judge however also ordered that the following pertinent issues be determined in the main application:

“3. The following residual issues shall be determined in the main application in HC1393/08:

3.2 Whether or not the transfer of shares in the plaintiff company (Private) Limited, by the third defendant to one John Leggett, should be set aside;

3.3 Whether or not the first and second defendants should vacate the premises situate on the property more fully described in paragraph 2 above and which is also known as 98 Churchill Avenue, Gunhill, Harare;

4 The plaintiff shall file its notice of opposition or other such papers in HC1393/08 within ten (10) days of the date of this order and thereafter the filing of any further documents shall be in accordance with the Rules.”

Pursuant to this, on 2 November 2009, the Gurupiras filed a counterclaim in which they sought an order for the setting aside of the transfer of shares in the company from Mrs Muir to Leggett. Concomitant with that prayer was a prayer for the transfer of those shares to the Gurupiras.

I note that at the commencement of the hearing in the court a quo counsel for the respondents moved an application for the amendment of the draft order on behalf of the Gurupiras.

The court a quo recorded that the application was granted with the consent of both counsel for the appellants and Stevenson. This is what the court said:

“On the day of hearing, Mr Mpofu moved for the amendment of the Draft Order. Both Mr de Bourbon and Mr Stevenson did not oppose the amendment. It was therefore granted.”

The granting of the application to amend the draft order disposed of the point taken by the company and Leggett regarding the competency of the order sought by the Gurupiras.

The coming into the picture of Leggett did not, in my view, change the substance of the agreement between Mrs Muir and the Gurupiras. The latter purchased the two issued shares that Mrs Muir had in the company. The purchase of those shares bestowed rights upon them. According to the agreement, they were entitled to certain rights in the immovable property owned by the company. The pertinent paragraphs of the agreement are set out hereunder and read:

“C. The authorized share capital of the Company is divided into 32,000 (thirty-two thousand) ordinary shares of $1.00 each, of which authorized share capital 2 (two) ordinary shares (the shares) have been issued as follows:

SANDRA MAUREEN MUIR 2 CERTIFICATE No 1 & 3. She being the sole beneficial owner thereof;

D. The said shares confer on the holders thereof an exclusive right of occupation and use of the property;

E. The parties warrant that at the date of execution hereof and at the date of payment in terms of clause 2 of this agreement they are and they will be residents of Zimbabwe;

F. The purchaser warrants that he is using Zimbabwe dollars;

G. The seller is desirous of selling the shares, which shares confer on the holder hereof the exclusive right of use and occupation of the property and the improvements thereupon;”

From a perusal of these pertinent clauses in the agreement, the purchase by the Gurupiras of the two issued shares at the time of the sale entitled them to the exclusive use and occupation of the immovable property owned by the company. There was no novation of the agreement. There was no evidence that the agreement was ever cancelled. If it was, Mrs Muir did not choose to establish such fact before the court a quo. This she was obliged to do in order to oppose the claim for specific performance brought against her by the Gurupiras.

As matters stand, that application was unopposed.

In disposing of this issue, the court a quo stated that no evidence had been placed before it to controvert the assertion by the Gurupiras that they had complied with their obligations in terms of the agreement. Also, the learned judge in the court a quo found, as a fact, that no evidence had been placed before the court that the agreement had been cancelled.

I have to agree.

It is also pertinent to note that there was no appeal against these findings of fact which are themselves critical as to the determination of the respective rights of Mrs Muir and the Gurupiras in the claim for specific performance. Instead, the appellants placed reliance on findings of fact made during the application for rescission of judgment. Those findings of fact, which did not include evidence from Mrs Muir, cannot be binding in this instance.

In the initial application filed under Case No. HC1393/08, the Gurupiras sought an order for the transfer of the immovable property to themselves. An order for the transfer of the immovable property to the Gurupiras affected the rights of the company in the immovable property and the company was within its right in approaching the court for the reversal of that order. Leggett called witnesses to testify and they could only testify on behalf of the company - but not on Mrs Muir's behalf. In everything he did, Leggett purported to act for the company. The substantive relief, premised on the sale of shares, contained in the draft order, was against Mrs Muir, the Registrar of Deeds and the Sheriff. Clearly, in the circumstances, they had no business testifying on matters not within their personal knowledge.

This ground has no merit and is accordingly dismissed.

HH174-16 : BASIL MAKURURU vs DERICK VORI
Ruled By: MWAYERA J

The applicant instituted action proceedings against the defendant claiming adultery damages being $4,000= for contumelia and $7,000 for consortuium.The defendant did not enter an appearance to defendant and the dies inducie having expired the applicant filed the current unopposed application....,.The defendant did not defend the claim for adultery damages. The ...

HH399-18 : AMON MAPIYE vs INNOCENT MUDYIWA
Ruled By: NDEWERE J

The background of the case is that the plaintiff, Amon Mapiye, got into a customary union with his wife, Nomsa Faith Mapiye (nee Mwazha), in 1999. Their union was initially blessed with two children, in May 2001 and 15 October 2005.

On 24 April 2007, the plaintiff and his wife solemnised their marriage in terms of the Marriage Act [Chapter 5:11]. On 3 September 2008, they were blessed with a third male child.

By all standards, the marriage was stable and happy up to 2008, as evidenced by the solemnisation of the customary union on 24 April 2007, followed by the birth of a son on 3 September 2008. Then came a third party, in the name of Innocent Mudyiwa, the defendant, to intrude upon this marriage sometime in 2008.

The plaintiff was alerted, in 2009, by some suggestive text messages which were being exchanged between Innocent, the defendant, and his wife, which he saw on his wife's mobile phone. The plaintiff confronted both the defendant and his wife about the text messages. In particular, he alerted the defendant to the fact that Nomsa Faith Mapiye was married to him in a monogamous union. Both the defendant and the plaintiff's wife denied having an adulterous relationship. The plaintiff accepted the denial and let the matter rest.

About four years later, on 23 February 2013, the plaintiff's wife delivered a fourth male child.

In the first week of October 2014, the plaintiff issued summons for divorce from his wife in HC8879/14. He said their marriage had irretrievably broken down. The particulars of the breakdown which he gave were:

(a) That the defendant no longer loved him and was falsely accusing him of adultery.

(b) That the defendant had moved out of the matrimonial bedroom for the past one year and eight months, thereby denying him conjugal rights.

(c) That the defendant had abandoned the family business, donated her 5% shares to her last child, obtained an exit package, and was now working at her father's surgery.

(d) That the defendant had sent her aunt to collect a divorce token from the plaintiff's father as confirmation that she was no longer interested in the marriage.

If the defendant had been out of the matrimonial bedroom for one year and eight months on 2 October 2014, when the plaintiff signed the divorce summons, it means she moved out twenty months before 2 October. Therefore, she moved out of the matrimonial bedroom in 2013, shortly after delivering the last child because twenty months from 2 October 2014 takes us back to March 2013.

The plaintiff's wife continued to stay at the matrimonial house, but, she was effectively on separation from her husband since March 2013, when she moved out of the matrimonial bedroom, resigned from the family business, and donated her shares to the last child.

Her message was clear - she no longer wanted anything to do with the plaintiff or his business. Hence, the plaintiff responded by issuing summons for divorce.

While the divorce matter was still in progress, in February 2017, the plaintiff overheard a telephone conversation between his wife and the defendant, and, from what he heard, it appeared there was an argument between the defendant and his wife over her last child. The defendant was claiming the last born child from the plaintiff's wife, Nomsa Faith Mapiye, saying the child was his child.

The plaintiff confronted his wife, Nomsa Faith Mapiye, who confessed about the adultery with the defendant since 2008 and stated that her last child was a product of that adulterous relationship with the defendant.

After his wife's confession, the two agreed to go for DNA tests to check the paternity of the child. They went for the tests on 13 February 2017. The results were that there was a 0% chance of the plaintiff being the father of the last born child.

An uncontested Divorce Order was finally granted on 12 October 2017 by this court. In the Divorce Order, the plaintiff was absolved from maintenance and access obligations towards the last child.

Following his wife's confession of adultery with the defendant, the plaintiff issued summons against the defendant for adultery damages on 22 February 2017, which is the case I am seized with.

The defendant filed an appearance to defend on 28 February 2017. The defendant did not file any plea and, on 4 April 2017, the plaintiff filed a notice to plead and intention to bar and gave the defendant five days to deliver his plea or get barred. No plea was filed, and, on 4 May 2017, the defendant was barred.

The plaintiff applied for default judgment, and, this being a damages claim, the matter was referred to the unopposed roll.

The plaintiff filed Heads of Argument in support of his claim. He also filed an affidavit of evidence.

The matter was initially set down for 6 September 2017. On 31 August 2017, the plaintiff's lawyers wrote to the Registrar of the High Court indicating that the parties were making efforts to settle the matter out of court. No settlement ensued thereafter so the matter was eventually set down as unopposed for 10 January 2018....,.

As correctly pointed out by TREDGOLD CJ in Doyle v Salgo 1957 R & N 840 (FSC)…, or 1958 (1) SA 36 (FSC)…, in an undefended case involving a claim for adultery damages which was quoted with approval by ROBINSON J on p257 of Katsumbe v Buyanga 1991 (2) ZLR 256 “the fact that an action for damages is undefended does not relieve the judge from the obligation of scrutinising the evidence closely.”

HH195-11 : ELISHA DENDEUKA vs PAPER PLACE (PVT) LTD
Ruled By: BHUNU J

The applicant obtained an arbitral award in terms of the Labour Act [Chapter 28:01] in the following terms:

“Wherefore, after carefully analyzing the facts and the law, I make the following award:

1. That Claimant is hereby reinstated as a permanent worker to his position without loss of salary or benefits with effect from the date of dismissal.

2. That if reinstatement is not an option, the Claimant should be paid damages of US$16,184 within thirty (30) days from the date of the arbitral award.”

The arbitrator, Mr. Munyaradzi Dangarembizi, duly signed and authenticated each page of his reasons for registration with the High Court. The section provides as follows:

“(14) Any party to whom an arbitral award relates may submit for registration the copy of it furnished to him in terms of subsection (13) to the court of any magistrate which would have had jurisdiction to make an order corresponding to the award had the matter been determined by it, or, if the arbitral award exceeds the jurisdiction of any magistrates court, the High Court.

(15) Where arbitral award has been registered in terms of subsection (14) it shall have the effect, for purposes of enforcement, of a civil judgment of the appropriate court.”

Mr. Thomas Vallance submitted a copy of the respondent's opposing affidavit in his capacity as agent of the respondent authorized thereto by a special power of attorney granted to him by the company's Managing Director, one Mohamed Hafiz- Abdulla.

The position in our law is however that a company, not being a fictitious legal persona, it cannot act on its own. There is therefore need for a company resolution to legalize and validate any company acts as observed by MAKARAU J in Tapson Madzivire and 3 Others v Misheck Brian Zvarwadza and 2 Others HH 2005. In that case the learned judge observed that:

“The fictional legal persona that is a company still enjoys full recognition by the courts. Thus, for any acts done in the name of a company a resolution duly passed by the Board of Directors of a company has to be produced to show that the fictional person has authorized the act.”..,..

I am in respectful agreement with her ladyship's observation.

In this case, the purported company agent produced a power of attorney granted to him by the company's Managing Director. A power of attorney is however no substitute for a company resolution.

In that case, even if the Managing Director, Mr. Abdulla, had appeared in person before the court he would still have been required to produce a company resolution as proof that the company had authorized him to do what he is attempting to do on its behalf. Without a company resolution Mr. Vallance is merely representing the Managing Director's position and not that of the company.

The second hurdle for Mr. Vallance arising from the company's inability to represent itself is that generally speaking a company can only be represented by a legal practitioner in the superior courts.

Save in exceptional circumstances, section 9 of the Legal Practitioners Act [Chapter 27:07] prohibits and criminalizes anyone who represents another in legal proceedings without being a legal practitioner in possession of a valid practicing certificate. See Lees Import and Export (Pvt) Ltd v Zimbank 1999 (2) ZLR 36 (S).

In the result, I hold that the respondent not being properly represented in these proceedings the application should be treated as unopposed.

Wherefore, after perusing documents filed of record and hearing the applicant, it is accordingly ordered:

1. That the arbitral award of 17 May granted by the arbitrator Dangarembizi be and is hereby registered as an order of this Court.

2. That the respondent is hereby ordered to pay E. Dendeuka damages in lieu of reinstatement in the sum of US$16,184 (sixteen thousand one hundred and eighty–four United States Dollars) within seven days of receipt of this order.

Appealed
SC16-20 : INFRASTRUCTURE DEVELOPMENT BANK OF ZIMBABWE vs ENGEN PETROLEUM ZIMBABWE (RIVATE) LIMITED
Ruled By: GUVAVA JA, MAVANGIRA JA and ZIYAMBI AJA

This is an appeal against the decision of the High Court handed down under HH253-16 wherein the court a quo found the appellant liable to pay to the respondent the sum of US$847,847=65 together with costs of suit and interest at the prescribed rate from the date of the granting of the judgment to the date of payment in full.

The appellant is a statutory corporation set up in terms of the Infrastructure Development Bank of Zimbabwe Act [Chapter 24:14] (“the IDBZ Act”). The respondent is an oil company registered in accordance with the Companies Act [Chapter 24:03].

The background to the matter may be summarized as follows:

A company known as Wedzera Petroleum (Private) Limited (“Wedzera”) entered into a verbal agreement with the respondent wherein the respondent would sell bulk petroleum fuels to it from time to time. The respondent would supply the petroleum products on credit and raise invoices to be settled by Wedzera Petroleum. Wedzera Petroleum would, in turn, settle the invoices within ten days from the date on which the invoices would be raised.

In November 2010, the respondent sold to Wedzera, petroleum products worth US$847,847=65. The sale of the petroleum products was made on the basis of two guarantees made by the appellant binding itself to pay in the event that Wedzera Petroleum failed to honour the debt. The two guarantees were drafted on 5 November 2010 and 19 November 2010 for the sums of US$500,000 and US$450,000 respectively.

The guarantees issued by the appellant were in the form of a letter, which bore the letter head of the Infrastructural Development Bank of Zimbabwe. It was addressed to the respondent and signed by one Francis Mugwara (“Mugwara”) the Head of the Short Term Loans Unit.

Part of the first guarantee, dated 5 November 2010, read as follows:

“In consideration of Wedzera Petroleum (Pvt) Ltd…, agreeing to the submission of a guarantee for the supply of fuel products by Engen Petroleum Zimbabwe (Pvt) Ltd, we, Infrastructure Development Bank of Zimbabwe – IDBZ…, do hereby guarantee full payment of USD500,000.00…, being the total amount of the Bank Guarantee to Engen Petroleum Zimbabwe (Pvt) Limited. The payment of the USD500,000 will be after a period of 10 (ten) days from the date of fuel drawdown and is on revolving basis…,.”

The second guarantee, dated 19 November 2010, read as follows:

“In consideration of Wedzera Petroleum (Pvt) Ltd…, agreeing to the submission of a guarantee for the supply of fuel products by Engen Petroleum Zimbabwe (Pvt) Ltd, we, Infrastructure Development Bank of Zimbabwe – IDBZ…, do hereby guarantee full payment of USD450,000…, being the total amount of the Bank Guarantee to Engen Petroleum Zimbabwe (Pvt) Limited. The payment of the USD450,000 will be after a period of 10 (ten) days from the date of fuel draw-down and is on revolving basis…,.”

After the guarantees had been issued, Wedzera Petroleum failed to pay the debts arising from the petroleum products which were sold to it on credit by the respondent.

On 8 March 2011, Wedzera Petroleum wrote to the respondent informing that it (Wedzera Petroleum) was experiencing negative cash flows due to the unavailability of fuel during the months of December 2010 and January 2011 and that it was aware of its indebtedness to the respondent. Wedzera Petroleum further informed the respondent that it would pay its entire indebtedness within 14 days.

Wedzera Petroleum failed to honour its indebtedness as promised.

The respondent wrote to the appellant on 15 March 2011 informing it to liquidate Wedzera Petroleum's debt in accordance with the two guarantees.

The appellant, through a letter dated 31 of March 2011, informed the respondent that upon checking its records it found that it had not issued the guarantees in favour of the respondent against any debts incurred by Wedzera Petroleum. The appellant further informed the respondent that it was unsure of the circumstances under which the purported guarantees had been drafted and issued to the respondent on behalf of Wedzera Petroleum.

Following the failure by Wedzera Petroleum to make due payment of the debt, and the repudiation of the guarantees by the appellant, the respondent issued summons against Wedzera Petroleum and the appellant for the payment of the sum of US$847,847=65....,.

In the court a quo, Wedzera Petroleum, in its plea, admitted its indebtedness to the respondent but denied liability as it argued that liability had passed to the appellant who undertook to settle the debt due in terms of the two guarantees.

The appellant, in its plea, denied being indebted to the respondent at all. It indicated that according to their records there was no indication that Wedzera Petroleum had applied for, or had been granted any guarantees. It further alleged that the guarantees had been generated through fraud.

At the pre-trial conference, the main issue which was referred to trial was: whether or not the appellant was liable to pay Wedzera Petroleum's debt on the basis of the two guarantees.

At the trial, Wedzera Petroleum was in default. The court a quo, upon application from the respondent, granted default judgment against Wedzera Petroleum in favour of the respondent for the sum of US$847,847=65 together with costs of suit and interest at the prescribed rate.

The trial proceeded against the appellant.

View Appeal
HH253-16 : ENGEN PETROLEUM ZIMBABWE [PVT] LTD vs WEDZERA PETROLEUM [PVT] LTD and INFRASTRUCTURE DEVELOPMENT BANK OF ZIMBABWE
Ruled By: MAFUSIRE J

This was a civil trial. The first defendant [“Wedzera”] was in default. On application by the plaintiff [“Engen”] in respect to which the second defendant [“the Bank” or “IDBZ”] had nothing to say, I entered a default judgment against Wedzera, in favour of the plaintiff, in the sum of $847,847=65, ...

SSC36-20 : TONIC MANGOMA vs THE STATE
Ruled By: MAKARAU JA, MAKONI JA and MATHONSI JA

This is an automatic appeal against both conviction and sentence. The appellant was convicted of murder with actual intent by the High Court sitting on circuit at Gweru on 22 September 2014.

Upon conviction, the penalty of death was imposed.

After hearing argument from counsel, this Court made the following order:

“It is ordered that:

1. The appeal against conviction is dismissed.

2. The appeal against sentence is allowed.

3. The sentence of death imposed by the court a quo is set aside.

4. The matter is remitted to the court a quo for consideration and imposition of an appropriate sentence.”

The court stated that the full reasons for the order would follow. These are the reasons.

NON INVOLVEMENT OF THE STATE

This appeal was initially set down on 11 September 2018. The appeal could not be heard on that date because the respondent had not filed heads of argument and needed time to do so. Counsel for the respondent requested a postponement to enable her to file heads of argument. The court acceded to that request and issued the following order:

“It is ordered that:-

The appeal is postponed sine die to allow the respondent to file heads of argument following the late filing of the notice of appeal.”

I must add that the Notice of Appeal had been filed only on 7 September 2018 giving the respondent little time to file heads of argument.

When the appeal was again set down for hearing, the respondent still had not filed heads of argument. Counsel for the respondent, again, appeared and sought a further postponement of the appeal. She admitted having been served with the Notice of Appeal in September 2018 and being timeously served with the Notice of Set Down. She however submitted that the matter had been allocated to someone else at the office of the National Prosecuting Authority who did not file heads of argument.

As to why that officer had not appeared before the court to explain her failure to act and why she was not making the application for a postponement herself, counsel did not give a satisfactory explanation.

It is clear that the office of the National Prosecuting Authority has been tardy in its handling of the matter and has not given it the attention that it deserves.

In terms of Rule 52(3) of the Supreme Court Rules, 2018, where the respondent is to be represented by a legal practitioner at the hearing of the appeal, that legal practitioner shall file a document setting out the heads of his or her argument together with a list of authorities cited in support, within ten days of receipt of the appellant's heads of argument.

Subrule (5) of Rule 52 provides for an automatic bar against a failure to file heads of argument timeously.

The appellant's heads of argument were filed and served on the respondent on 30 May 2018 but the respondent, even though represented by counsel, did not file its own heads of argument up to the date of the initial set down on 11 September 2018 on the pretext that the Notice of Appeal had not been filed and served on time. This Court gave the respondent an indulgence and postponed the matter sine die to allow enough time for the settling of the heads of argument.

The indulgence was spurned.

It is the view of this Court that the respondent could not possibly expect a further indulgence of another postponement. In fact, there was nothing suggesting that the respondent was treating this Court with the respect that it deserves.

While it is the right of the prosecution, in any criminal appeal, to defend the conviction, and, indeed, the sentence of convicted persons, that right should be exercised within the confines of the law and the four corners of the Rules of Court.

The court has always leaned in favour of according the National Prosecuting Authority the opportunity to present its cases and to be heard. In that regard, they have always been indulged in the discretion of the court. Unfortunately, the leniency extended to that office has been completely misunderstood. It is certainly not a licence for treating the Rules of Court with disdain.

Indeed, there are no special rules governing the National Prosecuting Authority. It is a party to proceedings just like any other litigant and is required to abide by the Rules.

Where there has been a failure to comply or there has been a delay, a reasonable and satisfactory explanation for failure to comply or to act timeously must be rendered.

No meaningful explanation for the failure to file heads of argument was given - even after an indulgence had been extended to the respondent on a previous occasion.

This is a case in which the appellant was convicted and sentenced to death on 22 September 2014. A capital sentence has been hovering over his head for almost six years. It is completely unacceptable, in the circumstances, for the respondent to behave as if it is business as usual.

It is for these reasons that this Court refused the application for a further postponement and proceeded to hear the appeal as unopposed.

SC37-20 : ROSEMARY BASTIN vs KUFA MADZIMA (IN HIS CAPACITY AS THE EXECUTOR OF THE ESTATE LATE MARIMO MADZIMA)
Ruled By: MAKARAU JA, MAKONI JA and MATHONSI JA

This is an appeal against the whole judgment of the High Court handed down on 20 February 2019 which granted summary judgment in favour of the respondent for the eviction of the appellant, and all those claiming occupation through her, from Stand No.3437 Highfield Township, Harare (“the property”) after dismissing the appellant's application for condonation of the late filing of heads of arguments in opposition to the summary judgment application.

The facts of the matter are these;

The respondent's father, Marimo Masawi Madzima, died at Marondera in 1985. He was the registered owner of the property. Following his death, the respondent was appointed heir to, as well as executor of, the estate. In 2001 the respondent engaged the law firm of Karuwa and Associates with instructions to dispose of the property. In due course, and entirely without the authority and consent of the respondent, that law firm sold the property to the appellant.

The appellant took transfer of the property and held title by Deed of Transfer No.1948/2007.

The respondent was aggrieved. He instituted an action in the court a quo against the appellant and others under case number HC2120/07, inter alia, for the cancellation of the sale and the return of the property to its rightful owner.

Although the action was contested, the respondent was successful.

By judgment delivered on 23 May 2012, being HH221-12, the court a quo found that the transfer to the appellant had been fraudulent and that the owner of the property was entitled to vindicate his title against any other person in possession of the property. The order which was issued included an award of costs on the legal practitioner and client scale against the law practice of Karuwa and Associates.

As the appellant remained in occupation of the property notwithstanding the judgment of the court a quo referred to above, which was only appealed against by Karuwa and Associates in respect of the award of costs, the respondent instituted action proceedings for eviction under case number HC1025/18.

The action was opposed by the appellant whose only discernible defence was that the judgment of the court a quo, in terms of which her claim was dismissed, had been taken on appeal to this Court under case number SC211/18.

As it turned out, that was an appeal lodged by Karuwa and Associates against only a part of the judgment “that granted costs” against the law firm and nothing else.

The respondent was understandably un-impressed, and, believing that the appellant did not have a bona fide defence, and that appearance to defend had been entered for dilatory purposes only, made an application for summary judgment.

Although the appellant still opposed to the application, maintaining that no relief could be afforded the respondent by summary judgment, her legal practitioners failed to file heads of argument within the time allowed by the Rules of Court. She was therefore automatically barred in terms of Rule 238(2b) of the High Court Rules, 1971.

The appellant did not file a formal application for the upliftment of the bar.

Instead, counsel for the appellant still proceeded to file heads of argument out of time in which she sought to lead evidence from the Bar on the reasons for failure to timeously file the heads of argument.

At the hearing before the court a quo, an application for condonation of the late filing of the heads of argument was then made on behalf of the appellant - from the Bar.

The application was dismissed and the court a quo proceeded to determine the summary judgment application on the merits unopposed.

It granted the application.

The appellant was not happy with that turn of events. She has noted an appeal...,.

HH05-09 : MARION LYNDA RALPH vs CHRISTIAN VAN VUUREN
Ruled By: KUDYA J

The applicant seeks appointment as the sole guardian of the minor child, Roxanne Chantal Van Vuuren, born 1 December 1994. She is the mother of the child.

Her marriage to the girl's father was terminated by consent by order of this Court on 7 August 2002 in case number HC2367/2002. The order adopted the detailed consent paper that was executed by the applicant and her former husband in Harare and Johannesburg, respectively.

This Court assumed jurisdiction on the basis of the additional grounds found in section 3(1)(c) of the Matrimonial Causes Act [Chapter 5:13].

Apparently, as appears in his affidavit of waiver that was executed in Johannesburg, he was not domiciled in Zimbabwe, a country he had left in 1998. She was, inter alia, awarded custody of the minor child.

She launched the present application on 1 April 2008. She provided the address of service of the respondent as 127 Enterprise Road, Highlands in Harare. On 23 June 2008, she obtained an order to serve the application by edictal citation once in the Herald newspaper and in the Government Gazette, which she duly did in both medium on 14 November 2008....,.

In the present matter, the respondent did not oppose the application.

He was not personally served with the application which was served by edictal citation through a local newspaper and the Government Gazette. It was not clear to me why the applicant chose to do this when the divorce proceedings showed that the respondent was domiciled outside Zimbabwe since 1998 and lived in Johannesburg. No diligent search for him was ever conducted by the applicant.

Counsel for the applicant intimated, from the bar, that he had been instructed by the applicant that the respondent had, at the time the application was instituted, been residing at a house in Harare.

In my view, even if that instruction was correct, the applicant did not aver what steps she took to bring to the respondent's attention to her decision to remove the child from Zimbabwe to the United Kingdom that appears to have triggered the need for her to obtain a passport some six years after the divorce. She did not state what measures she took to either trace his whereabouts or to enforce the Maintenance Order.

She appeared to have been content with his alleged dis-interest in the affairs of his child....,.

I found her affidavit lacking in candor.

In one vein she appeared to be ignorant of the happenings in the respondent's life since his desertion and in another she was aware that he had remarried just as she had done. I had the distinct impression that she was snatching at sole guardianship.

It was clear from her affidavit that the respondent had not refused to exercise any of his powers of guardianship.

The factor which necessitated the application arose from the applicant's unilateral decision to remove the child from Zimbabwe, which decision she did not communicate to the respondent. When he allegedly came to Zimbabwe, she did not advise him of her intentions. It does not appear to me that he was aware that there was a need for him to exercise his guardianship powers. He is not aware of the application. I do not know whether the allegations of neglect in the general custodian welfare of the child are true.

Because he has not had notice of the application, I cannot hold that he has deliberately refused to come to court.

It appears to me that the applicant is snatching at sole guardianship.

HH485-16 : PUWAYI CHIUTSI LEGAL PRACTITIONERS vs THE REGISTRAR OF THE HIGH COURT and THE TAXING OFFICER
Ruled By: CHIGUMBA J

This application came before me on the unopposed roll for an order that the respondents refund the applicant the sum of USD$4,641=40 and pay costs of suit on a higher scale in the event that they oppose the granting of the order.A report was filed on behalf of the first ...

HH552-15 : AMBASSADOR AGRIPA MUTAMBARA and ESTHER MUTAMBARA vs CONSTANTINE CHIMAKURE (EDITOR OF NEWSDAY NEWSPAPER) and ALPHA MEDIA HOLDNGS PL
Ruled By: MATANDA-MOYO J

This matter was set down before me on the unopposed roll. Upon perusing the file I noted that the issue of set down on the unopposed roll was hotly contested by the defendants.

Correspondence between the parties shows that the defendants are claiming that they set the matter down in terms of the Rules, and, in particular, Practice Directive 1/13. In their correspondence, it is clear that it is not certain whether indeed the defendants set the matter down as per the Rules as read with the Practice Directive.

It is not my function to go into that enquiry, and that enquiry can properly be carried out in the presence of both parties.

In the interest of time, I stood down the matter to my chambers and called the lawyers for the defendants to ascertain whether indeed the matter was set down.

Counsel for the defendants produced an un-issued Notice of Set Down dated 25 July 2014 which notice of set down was only served on the plaintiffs on 22 October 2014. The Registrar sent such notice to the Sheriff on 21 October 2014.

Counsel for the defendants argued that Rule 138 of this court's rules could no longer be complied with as the function of setting down of matters is now vested in the Registrar. The parties could no longer set the matters down, and, once a party request a set down date from the Registrar, such party would have complied with the rules.

Rule 138(a) of the High Court Rules enjoins a party who files a special plea, exception or application to strike out to set the matter down, with the consent of the other party, within ten days of filing of such special plea, exception or application to strike out in accordance with Rule 223(2).

Rule 223(2) provides;

“2. Subject to subrules (3), (4) and (5) and to Rule 238, exceptions, applications to strike out and other applications which are opposed shall be set down for hearing –

(a) In Harare, on a business day agreed with the Registrar, by filing a notice of set-down with the Registrar not less than six business days before the day of set down.”

The brief chronology of events is as follows;

On 19 May 2014 the applicants issued summons against the defendants for defamation damages in the sum of $200,000. On 3 June 2014 the defendants entered an appearance to defend. On 3 July 2014 the plaintiffs filed and served upon the defendants a notice to plead and intention to bar. On 10 July 2014 the defendants filed an exception and application to strike out. On 18 July 2014 the defendants filed heads of argument in respect of the exception and application to strike out. On 4 September 2014, the plaintiffs filed their heads of argument. On 20 October 2014, the defendants filed a Notice of Set Down on the opposed roll. On 24 October 2014 the plaintiffs filed another Notice to Plead and Intention to Bar which notice was served on the respondents on 27 October 2014. On 3 November 2014 the respondents filed a plea in abatement.

The plaintiffs took the attitude that there is no plea filed, and that, the respondents are barred for want of filing a plea. The plaintiffs prayed for default judgment in terms of the Rules.

When the plaintiffs filed a notice to plead, on 24 October 2014, the defendants had, four days prior to that, sought set down date with the Registrar. When such notice to plead was filed, the court was not made aware that the exception and application to strike out was awaiting a date from the Registrar.

The question is whether it was competent to file a Notice to Plead when the exception and application to strike out had been set down?

The answer is no.

The plaintiffs could only seek their remedy before the opposed roll rather than on their own without a court's determination or finding that the set down was a nullity.

In Swazi M.T.N Limited v MV Tel Communications (Pty) Ltd and Others, Swaziland High Court 7/06, stay of execution was granted pending determination of rescission of judgment where the defendant had filed an appearance to defend after the time prescribed by the rules. No condonation for late filing of such notice had been granted. The judge found that the negligence or lack of diligence by the defendant's lawyer may not be good enough to be equated to wilful default on the part of the defendant.

In the matter in casu, when the plaintiffs sought set down on the unopposed roll, they were aware that the respondents had applied for set down date.

It is for a court to find that such request for set down was out of time and of no consequence. It is a court or judge who should order that the matter be referred for determination on the unopposed roll.

It is not the duty of the judge, sitting in motion court, to make determination whether the set down request is valid or not.

It is common cause that after the request for set down was filed with the court on 20 October 2014, the plaintiffs issued another Notice to Plead and Intention to Bar on 24 October 2014. The defendants filed a plea in abatement in response to the Notice to Bar.

A plea in abatement is a special plea which does not absolutely defeat the plaintiff's claim and does not deal with the merits of the case. It is a dilatory plea.

The defendants insist that the plaintiff's claim does not disclose a cause of action and cannot be pleaded to. The defendants also pleaded that the second Notice to Plead issued is irregular and must be struck off.

I am of the view that the above issues ought to be dealt with on the opposed roll.

If the judge sitting finds that there is no opposition, the relief sought could still be granted thereat. A judge sitting on the unopposed roll has limited time to be expected to deal with issues raised by both parties. Once it becomes necessary to look at two sides of a case, it follows that the matter is opposed.

Accordingly, the matter is removed from the roll of unopposed matters and re-directed to the roll of opposed matters.

HHH117-14 : LEE-WAVERLY JOHN vs THE STATE and RODGERS KACHAMBWA
Ruled By: MATANDA-MOYO J

The applicant, at the onset of the proceedings, raised two preliminary points.Firstly, he submitted that there was no opposition by the respondents before me.The respondents filed a notice of opposition on 23 July 2013. An opposing affidavit by Rodgers Kachambwa was filed together with the Notice of Opposition.I shall quote ...

The applicant, at the onset of the proceedings, raised two preliminary points.

Firstly, he submitted that there was no opposition by the respondents before me.

The respondents filed a notice of opposition on 23 July 2013. An opposing affidavit by Rodgers Kachambwa was filed together with the Notice of Opposition.

I shall quote the opposing affidavit verbatim;

“IN THE MAGISTRATES COURT CRB No. R847/12 FOR THE EASTERN DIVISION CASE No HELD AT HARARE In the matter between: LEE WAVERLY JOHN APPLICANT vs THE STATE 1st RESPONDENT SIMON ROGERS KACHAMBWA NO 2ND RESPONDENT

_____________________________________________________________________
OPPOSING AFFIDAVIT
_____________________________________________________________________

I have gone through the application for review of the court proceedings up to the close of the case for the State and my ruling I made in favour of the State.

The application is opposed in its entirity. The review cannot shop the resumption of the trial. I will refer to the Applicant and his lawyer to the case of Attorney General v Makamba SC74-04, dated 30 August 2004, which is clear on the applications similar to the one before me.

Sworn before me this 16 day of July 2013

_____________ Deponent

_____________ Commissioner of Oaths.”

Counsel for applicant submitted that that the above affidavit refers to a matter in the Magistrate Court and has no bearing on the present case.

Substantively there is nothing in the affidavit. I agree with the applicant's submissions.

The affidavit was written for a matter before the Magistrate Court. It is not meant for this matter. Again, the contents of the affidavit do not state the reasons why the application is opposed. There are no factual averments therein. The ruling by the magistrate has not been properly admitted into evidence. If such ruling was to be an annexure to the opposing affidavit then, it must be properly referred to in that affidavit.

It was my finding, therefore, that there was no opposing affidavit filed.

Without such opposing affidavit no heads can be filed.

Again, counsel for the applicant argued that the respondents are barred.

The respondents were served with the applicant's heads of argument on 23 September 2013. The respondents had up to 7 October 2013 to file their heads. They did not do so. The respondents filed their heads on 27 February 2014. Such heads were filed without condonation from this court.

I found that, indeed, the respondents were barred. Without condonation having been made by this court, the respondents could not be heard. I then proceed to hear the applicant on the merits.

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 before me on several counts.

(i) Firstly, they allege that the applicants have approached the courts with dirty hands as they have not paid the costs for hearing of the urgent application that was dismissed. However, the applicants counsel explained that they had only been advised of the actual costs that very afternoon.

(ii) Secondly, it is also argued, on behalf of the firm of lawyers, that the matter is effectively res judicata. In this regard, counsel for the first respondent argued that this matter is “between the same parties, concerns the same subject matter, and is founded on the same cause of complaint as the action in which the defence is raised.”

See Banda & Ors v Zisco 1999 (1) ZLR 340 (S).

Clearly, if Mrs Mutasa is now the applicant, it cannot be said that the matter is between the same parties. As to whether it is the same subject matter, the first urgent application concerned the issue of stopping the actual removal of the goods from the residence. This is not what is before me since the goods were removed.

Counsel for the first respondent argued that execution is a continuum and relied on the following paragraph as expressed by PREST in his book, The Law and Practice of Interdicts, CB Prest, The Law and Practice of Interdicts (Claremont, Juta, 1996) Ninth Impression 2014…, in which he states notably in relation to a discussion of a final interdict that:

“The injury must be a continuing one: the court will not grant an interdict restraining an act already committed for the object of an interdict is to protect an existing right, it is not a remedy for the past invasion of rights. A past invasion of rights may however constitute evidence upon which the court implies an intention to continue in the same course.”

Manifestly, from the cases cited by PREST, in support of the above principle, whether an interdict is being sought to restrain an act already committed is a question that depends on the facts of the case in question.

For example, in Conde Nast Publications Ltd v Jaffe 1951 (1) SA 81 (C)…, which PREST draws on, the infringement of copyrights was alleged to have taken place a few months before the applicant took cession of the copy rights. It was in that context that the court expressed doubts as to whether the applicant had any rights to sue for past infringements.

I do not think that the infringement in casu can be said to be past in that sense of the word.

Granted, the property was removed and it made no sense to persist with a remedy to stop removal because that had already taken place. But, the infringement, in so far as the rights of an interested third party have been brought into play, would appear to be ongoing.

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 and the judgment having been in error.

Furthermore, in casu, the fact that the matter emanates from a default judgment is material.

Equally, the fact that the urgent application on removal of the goods did not address the merits because the goods had already been removed is also material. It cannot be said that all rights to challenge the default judgment or the execution itself fell away.

If a default judgment is not at all challenged then the doctrine of res judicata would indeed apply to such a default judgement. Where however an application for rescission has been filed then clearly the default judgment does not signal the end of litigation and any sale in execution on its strength would be just as precarious as the default judgment itself. See Nyamhuka v Mapingure 2014 (2) ZLR 229 (H).

The default judgment in question is said, by both applicants, to be void on account of an interested party not having been advised.

Where an application for rescission has been made on this basis, under Rule 449, then, it is not necessary to show good and sufficient cause. No merits for its rescission need be averred. See Banda v Pitluk (2) ZLR…,; Stircrazy Investments (Pvt) Ltd v Lucky Brand & Anor HH194-12.

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.

As regards Mr Mutasa, the error pertaining to his Notice to Defend has been explained.

A prima facie case has been put forward on why rescission is likely to be in the interests of justice particularly given the fact that courts generally favour hearing cases on the merits.

Furthermore, the parties are vehemently in dispute as to what services, if any, were in fact provided. In my view, this further adds to the prospects of success in the application for rescission to enable a ventilation of the merits.

Additionally, the goods attached are said to be well in excess of the debt.

Whilst cognisant of the fact that a sale in execution does not attract proper market values hence the attachment of more goods than may actually be necessary, still, this court has to bear in mind that in the face of the application for rescission, it would make little sense to permit the goods to be sold off at this point. It would also make little sense for the goods to remain in storage accumulating high storage charges pending hearing of the matter.

However, whilst it makes sense for the goods to be released pending the hearing of the application for rescission, it also makes sense for the goods to remain under attachment even whilst released. This means that they should not in any way be sold or alienated until the matter has been finalised.

Accordingly, the following interim order is granted to the first and second applicants:

Pending finalisation of this matter:

1. The second respondent be and is hereby ordered to return all the applicants goods removed pursuant to default judgment in HC9618/16.

2. The property shall remain under attachment and applicants be and are hereby ordered not to dispose of any of the property attached until the finalisation of this matter.

HH283-17 : IGNATIUS MASAMBA vs THE SECRETARY – JUDICIAL SERVICE COMMISSION and MERCY GORONGOZA
Ruled By: CHITAPI J

On 7 November 2016, the applicant filed this chamber application....,.The Nature of the ApplicationThe chamber application purports to be founded on Rule 449(1)(b) of the High Court Rules, 1971. The Rule provides as follows:“449 Correction, variation and rescission of judgments and orders(1) The court or a judge may, in addition ...

On 7 November 2016, the applicant filed this chamber application....,.

The Nature of the Application

The chamber application purports to be founded on Rule 449(1)(b) of the High Court Rules, 1971. The Rule provides 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 application of any party affected, correct, rescind or vary any judgment or order -

(a)…,.

(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)…,.

(d) 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.”

The Law

I consider it important to briefly deal with the interpretation which the courts have given to Rule 449(1)(b).

Firstly, it must always be borne in mind that when a court or judge is seized with a matter, once it or he pronounces judgment or an order on the matter, it or he becomes functus officio. The court or judge, as the case may be, will have discharged it or his function, rightly or wrongly, and may not revisit or change the determination or decision. A party who is not satisfied with the decision of the court or judge must, subject to any Rule relative thereto, take up the decision on appeal to the Supreme Court. I would say that at its simplest extrapolation, this is the procedure which a litigant who is not satisfied with a decision of the court or judge should follow or be guided by.

Rule 449 recognizes the fallibility of the court or judge inasmuch as decisions of the court are made by human beings. As human beings judges are not infallible.

The Rule, in addition to the common law inherent power of this court to supplement, clarify or correct its judgment, which power does not concern this judgment, allows the court or judge to revisit its judgment in which it or he is functus officio. The revisitation and the powers which the court or judge may exercise are not open ended. The powers which may be exercised, and the circumstances allowing for the revisitation, are circumscribed in the Rule. The court or judge will do so either on its or his accord or upon application by any affected party which means that in addition to the parties to the judgment, a party who was not party to the litigation can utilize the Rule if such party is affected by the judgment or order concerned where it was given in such party's absence; see Mashingaidze v Chipunza & Ors 2015 (2) ZLR 362.

Before the court or judge can correct, rescind or vary any judgment or order based on the provisions of Rule 449(1)(b) at the instance of a party, such party is required to point out to:

(a) The ambiguity; or

(b) Patent error; or

(c) The omission; sought to be relied upon to move the court or judge to exercise a discretion to make alterations to the judgment or order as the case may be.

In Wector Enterprises (Pvt) Ltd v Luxor (Pvt) Ltd 2015 (2) ZLR 57 (S) the learned ZIYAMBI JA gave an overview of the rationale behind Rule 449 generally in the following extract…,:

“Rule 449 of the Rules has been invoked, among other instances;

(i) Where there is a clerical error made by the court or judge; see City of Harare v Cinamon 1992 (1) ZLR 361 (S);

(ii) Where entry of appearance had been entered but not in the file at the time default judgment was entered; see Banda v Fitluk 1993 (2) ZLR 60 (H);

(iii) Where, at the time of issue of the judgment, the judge was unaware of a relevant fact, namely, a clause in an acknowledgement of debt; see Grantually (Pvt) Ltd & Anor v UDC 2000 (1) ZLR 361 (S)…,.

Where applicable, the Rule provides an expeditious way of correcting judgments obviously made in error. It envisages the party in whose absence the judgment was granted being able to place before the court the fact, or facts, which were not before the court granting the judgment. There is no need for the applicant to establish good and sufficient cause as required by Rule 63 of the Rules; See Banda v Pitluk (supra).

However, in each case, the error or mistake relied upon must be proved, and, in each case, the court exercises a discretion; see Gondo & Anor v Syfrets Merchant Bank Ltd 1997 (1) ZLR 201 (H)…,.

In any event, Rule 449 is not mandatory but confers upon the court a discretion to act in terms thereof…,.”

The decisions in Mashingaidze v Chipunza & Ors 2015 (2) ZLR 362 and Vector Enterprises (Pvt) Ltd v Luxor (Pvt) Ltd 2015 (2) ZLR 57 (S), specifically dealt with applications brought under Rule 449(1)(a). This notwithstanding the cases stand as a guide with respect to the overview of the purport of Rule 449 generally.

In Mpansi & Ors v Dube & Ors 2015 ZLR 1 (S), the learned HLATSHWAYO JA dealt with an application for correction or variation of a Supreme Court order pursuant to Rule 58 of the Supreme Court Rules 1964 as read with Rule 449 of the High Court Rules, 1971.

He corrected a costs order in which costs had been granted against the executor of a deceased estate in his personal capacity. The order of costs had not specified that the costs of appeal be borne by the estate. The order had simply read, inter-alia, that; “The appeal is allowed with costs.” Since the executor had been a party to the appeal which was allowed, as a co-respondent, it was argued that the order of costs was ambiguous unless corrected because it gave the impression that both the executor and the estate had to bear costs. The learned judge clarified the costs order.

In my view, an ambiguous judgment or order must be construed as one that is unclear and capable of various interpretations. This may usually come about as a result of the language used by the court or judge. The ambiguity will therefore be attributable to the court or judge in how it or he has expressed himself or herself in the language used. In such a case it has been held that relief should be granted where, from the language used, the ambiguity resulting therefrom has the effect that the true intention of the court or judge is not clear; see First National Bank of South Africa Ltd v Surgens 1993 (1) SA 245 (W)…,.

A patent error or omission, as the expression implies, is one which is clearly obvious to anyone reading the judgment or order. It does not appear to me that the expression should present difficulties of interpretation.

Examples of patent errors may relate, inter alia, to clerical errors with regard to figures, dates, or spellings. For good measure, a court may have ordered that an order be complied with by a certain date, but, when the judgment is typed and signed, it gives a date which had already passed through clerical error or an impossible date like 31 June yet the month of June ends on the 30th.

A court or judge may, for example, in making an order requiring a party to do a certain act or refrain from doing so mistakenly omit to name the party who should so comply, in circumstances where there are several parties in the judgment. Such an omission can be said to be patent, and, in my view, can properly be corrected and the judgment or order varied to make it explicit.

I should mention that I have read the views expressed by the celebrated authors HERBASTEIN and Van WINSEN in The Civil Practice of the The Courts of South Africa, Vol 1, 5th…, where they rely on the judgment, Isaacs v Williams 1983 (2) SA 723, on the interpretation which has been given to Rule 42(1)(b) of the South African Uniforms Rules of Court which reads the same as Rule 449(1)(b).

The authors state that “an order that has been correctly made but incorrectly typed cannot be corrected or amended in terms of this Rule, although a court has the inherent competence to correct the order so that it corresponds with the one made by the court.”

A typing error, in my view, is an error which should be covered by Rule 449(1)(b) because, if the court has made an order and it is say handwritten or verbal and it is recorded, an error in typing becomes patent by comparison between the actual handwritten or recorded order and the typed error. I do not see why the Rule would not cover such a situation.

Even if I am wrong in my reasoning, I would think then that Rule 449(1)(c), which allows for a variation, rescission or correction of a judgment or order on the basis of a mistake common to the parties, would cover the situation.

The distinction is too fine to call because what, in essence, is the judgment or order of the court would be the untyped judgment or order. The act of typing is merely there to reduce the judgment or order to a typed version, and, if the typed version does not reflect the un-typed script, then, in my view, it is patently erroneous to the extent of the mis-typed error.

I therefore respectfully disagree with the said authors for the reasons I have set out. In disagreeing with them, I do so in the hope that I did not misunderstand or misconstrue what they intended to convey.

Analysis of the Application

Having set out the law, and expressed the difficulties I have encountered in comprehending the applicant's founding affidavit, I proceed to analyze, as best I can, the application in casu in the understanding that the applicant must make out a case for relief under Rule 449(1)(b) of the rules of this court.

He must point out to the ambiguity, patent error, or omission which he alleges that the court made in its judgment in case no. HC6970/16. Once he has done this, he must satisfy me that the ambiguity or patent error or omission is such that I should be persuaded to exercise my discretion to exercise to set aside the judgment as prayed for by the applicant in his draft order.

The discretion which I am empowered to exercise, as with any judicial discretion, must, of course, be exercised judiciously which connotes that the discretion must be based on what is fair in the circumstances of the case whilst applying rules and principles of law.

By giving the court or judge a discretion to exercise the powers given in Rule 449, the applicant must understand, as a corollary, that he has no right or entitlement to demand the relief as of right.

I proceed to briefly outline the material facts arising or discernible from the judgment of this court prepared by my sister CHIGUMBA J in case no. HC6970/16 (ref HH660-16) which judgment the applicant seeks to impugn in this application.

On 1 September 2016, Case No. HC6970/16, in which the applicant therein was the applicant, was listed on the unopposed roll following several postponements by other judges who raised various queries. CHIGUMBA J, in her judgment HH660-16, which the applicant has annexed to his present application dismissed that application on the basis that:

“(a) There is no cause of action thereof and the relief sought is incompetent.

(b) The papers are defective in that they do not comply with order 32 of the rules of this court.”

The applicant, as evident from the judgment, wrote several letters complaining about the dismissal of his application and requesting, if not demanding, for reasons for the order. I have gone through the actual court record in case no HC6970/16 because, in this application, the applicant has just bundled together annexures in the form of documents whose relevance and purport is not clear to me.

I should, at this stage, indicate that the present application was opposed by the first respondent which filed its opposing affidavit on 17 November 2016.

In paragraph 3 of the opposing affidavit, the deponent to the second respondent's affidavit states that he has “read and understood the applicant's founding affidavit…,.” I do not purport to deny his assertion that he has understood it save to state that I unfortunately have not understood it especially reading it in the context of an application purportedly being made under Rule 449 of the High Court Rules.

The contents of the founding affidavit are convoluted, twisted, and difficult to follow.

The applicant attacks the learned CHIGUMBA J as being careless, abusing authority, and going on a frolic of her own in how she dealt with the application HC6970/16. He then speaks about distress suffered by the second respondent which compels her to beam. He speaks of politics creating difficulties in his love affair with the second respondent, more particularly, that ZANU (PF) is blocking him from marrying the second respondent.

In paragraphs 14 and 15 of his founding affidavit, the applicant states as follows:

“14. The (i) beaming which is the act complained of; and (ii) the failure or omission to clarify about whether or not there is political meddling blocking the love affair going right to marriage; and (iii) the failure or omission to clarify or confirm whether or not I can marry her by the second respondent are the acts of carelessness or negligence which judge Chigumba fails to come alive to. See paragraph 37 of the applicant's founding affidavit on page 61. The civil wrong is negligence or carelessness.

15. The 2nd respondent was careless or negligent, in the failure to clarify about the acts or omissions that are complained of about which were specified or itemized in paragraph 37. The negligence or carelessness or failure or omission to clarify by the second respondent as itemized in paragraph 37 of the applicant's founding affidavit in case no: HC6970/16 is the civil wrong or delict or tort or common law breach of the duty of care complained of.”

From the above paragraphs, I got the impression that the applicant was arguing that the learned judge failed to understand or appreciate the cause of action in case no. HC6970/16.

The applicant then attempts to extrapolate the cause of action which the learned judge failed to appreciate or discern.

If I am correct in so holding, then, the applicant is ill-advised to seek recourse in terms of Rule 449(1)(b). Rule 449(1)(b) is not intended to circumvent the process of appeal.

A person who is dissatisfied with the judgment of this court, as would appear to be apparent in this application, if one has regard to the applicant's quoted and other averments, should have the judgment tested by a higher court, on appeal, rather than seeking to have the functus officio court or judge review its or his or her judgment and setting it aside as prayed for by the applicant.

The applicant's thought pattern has left me wondering whether he is compos mentis. I have already indicated that his documents are convulted. This equally applies to his thought pattern. For example, in paragraph 24 of his founding affidavit, which he has typed in bold, he states:

“24. As I write this applicant's founding affidavit: next door neighbours, at 7223A, 25th Street Western Triangle, High Field are emitting alternately both chemical and herbal very pungent smokeless smells. Which means it is just, I am having to deal with a probable political malevolent confederacy of a behemoth nature. And the second respondent is booming/beaming.”

Apart from the above deposition not having any relationship with the alleged ambiguity or errors or omissions in CHIGUMBA J's judgment, one cannot make out the content of the same. It is for this reason that I have found myself questioning the mental composure of the applicant.

I will, among other further meaningless paragraphs, quote paragraph 29 in which the applicant avers:

“29. Possibly, the Judge is complicity. Isn't she? In the postulated most-likely scheme of ZANU (PF) of wanting me to die of AIDS than marry as a targeted person by my political most inveterate adversary, Mr Mugabe, the president of Zimbabwe. What motivated the dismissal. All it does is to seem to confirm my allegations. So where have I lied against ZANU (PF). What motivates the Judge? Is she really incompetent?”

I note that CHIGUMBA J described averments made by the applicant, in his founding affidavit in HC6970/16, inter alia, as jumbled, garbled, and insensible and that no useful purpose could be served by repeating them.

I find myself, after painstakingly trying to make head or tail of the applicant's averments, having to say that the pattern observed by CHIGUMBA J has been repeated.

Although the first respondent has filed opposing papers on the merits, I cannot fathom why the respondent has been made a party to this application. No relief is sought against the first respondent and it is mind boggling why the first respondent would be cited as a party in an application based on Rule 449 of the High Court Rules.

To add salt to injury, the applicant, in his draft order, prays for the setting aside of the judgment in HC6970/16 with costs against the first respondent.

Whilst Rule 449(2) enjoins the court or judge to satisfy it or himself that all parties whose interests may be affected by an exercise of the powers set out in the Rule are made aware of any application made under Rule 449(1), it is not apparent as to how the first respondent is an affected party whether explicitly or implicitly.

The Judicial Service Commission does not supervise the content of a judge's judgment nor does it superintend or influence judgments. It was also not a party to case no. HC6970/16. There is also no reason advanced by the applicant to support or justify a costs order against the first respondent.

I do agree, though, with the first respondent when it states as follows in paragraph 16 of the opposing affidavit:

“16. The applicant has engaged in paranoid delusions throughout his Founding Affidavit, initially accusing everyone, from the President, the Judges of the High Court, political parties, alleged members of the Central Intelligence Organisation, and even the second respondent, whom the applicant alleges to love, of having a sinister plot against him simply because a judgment was entered against him.”

In particular, the applicant has made un-mitigated and virulent attacks on the judge of this court, CHIGUMBA J, without substantiation. He, among other expletives and profanities, accuses the judge of corruption, carelessness, and negligence in an open demonstration of contempt of the judge and court's authority simply because his unopposed application was dismissed for want of merit.

Whilst it is the right of every person to petition the courts, with the courts having a corresponding duty to adjudicate on all matters which come before them, the right does not include the right to abuse the courts and judicial officers.

This application is not only devoid of merit but lacks bona fides. It was filed by a delusional applicant who simply considered that the court, or judge, was wrong to dismiss his application. He then went into attack mode and mounted a sustained attack on the judge and anyone whom he thought, in his delusional state, to be against him.

Courts have a duty to guard the abuse of the court process, and, where there is unmitigated abuse, as in this case, it is only reasonable, expected, and indeed proper, for the court to shut its doors to the abuser and/or place such abuser on terms with regards how he may be allowed to exercise his rights of access to the courts.

There is nothing ambiguous in the judgment delivered by CHIGUMBA J by any stretch of imagination. There is no error or omission discernible - let alone proven by the applicant. The only error is the applicant's perception, which is ill conceived, that he should have been granted the order which he sought. He now seeks to argue why the judge should be held to have been in error by making all sorts of baseless, unintelligible arguments and accusations which clearly fall outside the scope of Rule 449.

I have already indicated that, if the applicant had been properly advised, he should have noted an appeal.

HH390-18 : MIDLANDS STATE UNIVERSITY vs ALOIS MATONGO
Ruled By: MUZOFA J

The applicant seeks an order for perpetual silence against the respondent.

The order sought is, in the alternative, as follows:-

“1. The respondent be and is hereby ordered to maintain perpetual silence against the applicant, that is to say, the respondent be and is hereby barred and interdicted from instituting any litigation, claim, application, action against the applicant.

2. An order that respondent pays applicant's legal costs on an attorney and client scale; or that

3. The respondent be and is hereby ordered not to commence any litigation, claim, application, action against the respondent without first obtaining leave of this Honourable Court (which this Honourable Court, depending on the facts, will either decline to grant, or will grant subject to precedent (sic) terms and conditions which this Honourable Court, may, in its discretion, stipulate).

4. An order that the respondent pays applicant's legal costs on an attorney and client scale.”

The respondent was employed by the applicant as the director of the Graduate School of Business Leadership at the Midlands State University. Following allegations of misconduct against the respondent he was suspended, charged, and, after a disciplinary hearing, he was dismissed. An internal appeal was unsuccessful.

According to the applicant, after the dismissal of his internal appeal, in 2011, there was no peace for the applicant. Between 2010 and 2017 the respondent filed a total of thirteen (13) applications, actions, and appeals before the Labour Court and the High Court. The applicant stated that although in most cases the respondent was unsuccessful and costs granted against him, it did not pursue the issue on costs as it was aware that the respondent had no means.

The application is opposed.

The respondent does not deny filing the applications or claims. He said they were all completed. Only one matter is still pending between the parties. His main contention is that in terms of section 86 of the Constitution of Zimbabwe he has a right to access justice and the courts of law for redress. Such an application is a negation of his constitutional right. In addition, it was submitted that this court cannot grant an order for perpetual silence regulating processes of other courts. It can only issue an order that relates to the abuse of its own process.

At the hearing of the matter, the applicant sought to amend its order.

After hearing both parties, I granted the application and indicated that the reasons will be incorporated in the judgment. These are they.

The notice to amend the draft order was filed on 6 March 2018 to read:

“1. The respondent be and is hereby ordered to maintain perpetual silence against the applicant, and is hereby barred and interdicted from instituting any litigation, claim, application, action, against the applicant, in any court or legal fear, in respect of the respondent's termination of employment, reinstatement of his appeal that was dismissed by the Labour Court, or purported claim of terminal benefits.

2. An order that respondent pays applicant's legal costs on an attorney and client scale.

Alternatively;

3. The respondent be and is hereby interdicted and restrained from instituting any action, application, or suit or proceedings in this Honourable Court, in the Labour Court, and in any other court, against the applicant or its employees, or its agents relating to the applicant or its agents, in respect of proceedings which relate directly or indirectly to the respondent's termination of employment, reinstatement of his appeal which was dismissed by the Labour Court, and purported terminal benefits due to the latter from the applicant, without leave of this Honourable Court first being applied for and obtained.

4. The respondent be and is hereby interdicted and restrained from setting down any matter already filed or commenced with this Honourable Court, the Labour Court, or any other Court subordinate to this Honourable Court, without leave of this Honourable Court first being applied for and obtained.

5. The Registrar of this Honourable Court, and the Registrar of the Labour Court, and the Registrar of any other Court subordinate to this Honourable Court shall not issue any process commencing any action or any application or set down any matter already filed or commenced by, on behalf of, or at the behest of, Mr Alois Matongo in connection with the termination of his employment, and the purported claim of terminal benefits or reinstatement of his appeal that was dismissed by the Labour Court, without the leave of this Honourable Court first being applied for and obtained.

6. Any application for leave to institute proceedings or set down any matter shall be made on notice to the applicant.

7. The respondent is to pay the costs of this application on the legal practitioner and client scale.”

The notice was served on the respondent's legal practitioners on 8 March 2018. No notice of opposition was filed. In terms of the Rules the respondent was barred.

Surprisingly, in the oral submissions before this Court, the application was opposed.

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HH17-10 : TOMU NYANDORO vs ESTATE LATE PAULINO OLIVERIA MARTINS represented by the Executor and THE MASTER OF THE HIGH COURT and CHRISTOPHER MARTINS Ruled By: CHITAKUNYE J

HH34-10 : CHIRIGA ESTATES (PVT) LTD and MILRITE FARMING (PVT) LTD and SILVERTON ESTATES (PVT) LTD vs MINISTER OF LANDS AND RURAL RESETTLEMENT and MR E. PORUSINGAZI and EIGHT OTHERS Ruled By: MUSAKWA J

HH67-10 : JAMES MUTETWA vs BARRIE DIXON and MARKO MAVHURUNE N.O. (as Executor Estate Late Samuel Mushaninga) and KENIAS MUTYASIRA N.O. (as Executor Estate Late Salome Chisvo) and REGISTRAR OF DEEDS Ruled By: MAKARAU JP

HH118-10 : JOHN STRONG (PRIVATE) LIMITED and TOBS STRONG (PRIVATE) LIMITED vs WILLIAM WACHENUKA and MINISISTRY OF LANDS, AGRICULTURE AND RESETTLEMENT Ruled By: GOWORA J

HH167-10 : TUSILAGO (PRIVATE) LIMITED vs HOMELINK (PRIVATE) LIMITED Ruled By: MAKONI J

HH135-10 : TREVOR GIFFORD vs I. MUGOMBA and MUYESU and RONALD MUCHENGA and COMMISSIONER GENERAL OF POLICE Ruled By: CHIWESHE JP

View Appeal HH233-10 : YAKUB SURTEE vs SHAUN EVANS and PAUL FRIENDSHIP and COLLIN MacMILLIAN and RODNEY FINNIGAN and ACROSS ENTERPRISES PL Ruled By: MTSHIYA J

HH244-10 : JARVIS MUDZENGERERE vs ESTATE LATE JACKSON JEKERA (As represented by Japson Jekera ) and CHITUNGWIZA MUNICIPALITY and HEZEKIA MUZOPA Ruled By: CHITAKUNYE J

HB01-10 : CHIPO JHAMBA vs ALETA V. MUGWISI Ruled By: CHEDA J

HB27-10 : PATIENCE MOYO and ZIVANAYI MWEDZI and ANDREW BALENI and MARGRET MREWA and EDMORE VETERAI and OTHERS vs BULAWAYO KNITWEAR (PVT) LTD and MESSENGER OF COURT, BULAWAYO DISTRICT Ruled By: KAMOCHA J

HH48-13 : MELINA MATSHIYA (In her capacity as Executrix testamentary for Estate late ETTORE FUMIA) vs GEORGE FUMIA and ELLEN FUMIA and FALCON HAULIERS (PRIVATE) LIMITED Ruled By: MAWADZE J

HH346-13 : WALKTALL (PVT) LTD vs SHEPHERD TUNDIYA Ruled By: HUNGWE J

HH177-11 : J. MAMBARA N.O. (in his capacity as executor dative of the estate of the late Wilson Madziva) vs CAROLINE KUNAKA and BOBBY MANGODZA and OTHERS Ruled By: MUTEMA J

HH355-13 : ENNOCENT CHIDAWANYIKA vs TATENDA CHINYOWA and ZIMBABWE ELECTRICITY TRANSMISSION AND DISTRIBUTION COMPANY Ruled By: MTSHIYA J

View Appeal HH61-12 : ZIMBABWE OPEN UNIVERSITY vs GIDEON MAGARAMOMBE and THE DEPUTY SHERIFF HARARE N.O. Ruled By: KUDYA J

HH568-14 : FBC BANK LIMITED vs DUNLETH ENTERPRISES (PRIVATE) LIMITED and DUNCAN MUKONDIWA and SINIKIWE MUKONDIWA and MARIAN SMEMELWANI MAPANDA and EVA MUZUVA Ruled By: ZHOU J

SC28-14 : SITWELL GUMBO vs PORTICULLIS (PVT) LTD T/A FINANCIAL CLEARING BUREAU Ruled By: GWAUNZA JA

HH134-15 : SHEM CHIVHUMBA MLAMBO vs ISAAC MUTAMBI PHIRI CHIKATA Ruled By: ZHOU J

HH147-15 : TENDAI MANGWIRO vs CO-MINISTERS OF HOME AFFAIRS and COMMISSIONER-GENRAL OF POLICE and OFFICER IN CHARGE CID SUSPECTS HARARE CENTRAL POLICE and DETECTIVE INSPECTOR MUKAMBI Ruled By: MUSAKWA J

HH177-15 : AFRASIA BANK ZIMBABWE LIMITED vs SIMBARASHE CHIDAKWA Ruled By: TAGU J

View Appeal HH425-16 : AFRICAN BANKING CORPORATION OF ZIMBABWE and ABC HOLDINGS LTD vs LESLEY FAYE MARSH (PVT) LTD T/A PREMIER DIAMONDS and OTHERS Ruled By: CHATUKUTA J

SC02-17 : GUOXING GONG vs MAYOR LOGISTICS (PRIVATE) LIMITED and THE REGISTRAR OF DEEDS Ruled By: ZIYAMBI JA, BHUNU JA and UCHENA JA

SC67-19 : DANIEL CHINTENGO vs TREDCOR ZIMBABWE (PRIVATE) LIMITED t/a TRENTYRE ZIMBABWE Ruled By: MALABA CJ, GUVAVA JA and BERE JA

HB48-09 : KUNDAYI KWARAMBA vs TITUS NDLOVU and NTANDOYENKOSI NDLOVU (NEE SIBANDA) and REGISTRAR OF DEEDS, N.O. and DEPUTY SHERIFF, BULAWAYO Ruled By: CHEDA J

Appealed HH307-16 : ASSWELL GURUPIRA and JEAN GURUPIRA vs EARTHMOVING & CONSTRUCTION COMPANY PL and SANDRA MUIR and THE REGISTRAR OF DEEDS and THE SHERIFF and THE DEPUTY SHERIFF and JOHN LEGGATTE Ruled By: MAKONI J

View Appeal SC85-20 : JOHN LEGGETT and EARTHMOVING AND CONSTRUCTION COMPANY PL vs ASSWEL GURUPIRA and JEAN GURUPIRA and SANDRA MUIR and THE REGISTRAR OF DEEDS and THE SHERIFF and THE DEPUTY SHERIFF Ruled By: GWAUNZA DCJ, GOWORA JA and PATEL JA

HH174-16 : BASIL MAKURURU vs DERICK VORI Ruled By: MWAYERA J

HH399-18 : AMON MAPIYE vs INNOCENT MUDYIWA Ruled By: NDEWERE J

HH195-11 : ELISHA DENDEUKA vs PAPER PLACE (PVT) LTD Ruled By: BHUNU J

Appealed SC16-20 : INFRASTRUCTURE DEVELOPMENT BANK OF ZIMBABWE vs ENGEN PETROLEUM ZIMBABWE (RIVATE) LIMITED Ruled By: GUVAVA JA, MAVANGIRA JA and ZIYAMBI AJA

View Appeal HH253-16 : ENGEN PETROLEUM ZIMBABWE [PVT] LTD vs WEDZERA PETROLEUM [PVT] LTD and INFRASTRUCTURE DEVELOPMENT BANK OF ZIMBABWE Ruled By: MAFUSIRE J

SSC36-20 : TONIC MANGOMA vs THE STATE Ruled By: MAKARAU JA, MAKONI JA and MATHONSI JA

SC37-20 : ROSEMARY BASTIN vs KUFA MADZIMA (IN HIS CAPACITY AS THE EXECUTOR OF THE ESTATE LATE MARIMO MADZIMA) Ruled By: MAKARAU JA, MAKONI JA and MATHONSI JA

HH05-09 : MARION LYNDA RALPH vs CHRISTIAN VAN VUUREN Ruled By: KUDYA J

HH485-16 : PUWAYI CHIUTSI LEGAL PRACTITIONERS vs THE REGISTRAR OF THE HIGH COURT and THE TAXING OFFICER Ruled By: CHIGUMBA J

HH552-15 : AMBASSADOR AGRIPA MUTAMBARA and ESTHER MUTAMBARA vs CONSTANTINE CHIMAKURE (EDITOR OF NEWSDAY NEWSPAPER) and ALPHA MEDIA HOLDNGS PL Ruled By: MATANDA-MOYO J

HHH117-14 : LEE-WAVERLY JOHN vs THE STATE and RODGERS KACHAMBWA Ruled By: MATANDA-MOYO 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

HH283-17 : IGNATIUS MASAMBA vs THE SECRETARY – JUDICIAL SERVICE COMMISSION and MERCY GORONGOZA Ruled By: CHITAPI J

HH390-18 : MIDLANDS STATE UNIVERSITY vs ALOIS MATONGO Ruled By: MUZOFA J

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Zimbabwe

HB17-12 : MATILDA NAKAI MATHE vs NYAMBE MATHE
Ruled By: NDOU J

HH05-10 : JACKSON MUGUTI vs UBOXIT WORLDWIDE (PVT) LTD AND TWO OTHERS
Ruled By: MAKARAU JP

HH167-12 : ZIMBABWE DEVELOPMENT BANK vs GENERAL ACCIDENT INSURANCE COMPANY
Ruled By: CHIWESHE J

HH88-12 : BLUMO TRADING (PRIVATE) LIMITED t/a COLCOM COMMODITIES vs MORGAN MUDUVURI
Ruled By: MATHONSI J

HH13-08 : JEOFREY G MUKORERA vs OCEAN BREEZE ENGINE & COOLING SYSTEMS
Ruled By: MAKARAU J

HH122-09 : EMMANUEL NEMUSESO vs DOROTHY MASHITA and LOVEMORE KATAYI and PAULINE MANDINGO and PANGANAYI MASHITA and INNOCENT WOYO and MASTER OF THE HIGH COURT and REGISTRAR OF DEEDS NO
Ruled By: GUVAVA J

HB09-09 : TERENCE ALAN BLAKE and EDWARD GRAHAM BURROUGHS vs TABS-AVOIN LIGHTING (PVT) LTD and ASMARA COMPANY (PVT) LTD and JONATHAN TAFADZWA JERE and JAIROS MTHONISI MOYO
Ruled By: CHEDA J

HB69-09 : ALEX MUDZINGWA vs SAI ENTERPRISES (PRIVATE) LIMITED
Ruled By: NDOU J

HB74-09 : PATRICK SIKHOSANA vs MTHANDAZO DUBE and SIBANGANI NCUBE and VUSA DUBE
Ruled By: KAMOCHA J

HH05-10 : JACKSON MUGUTI vs UBOXIT WORLDWIDE (PVT) LTD AND TWO OTHERS
Ruled By: MAKARAU JP

HH17-10 : TOMU NYANDORO vs ESTATE LATE PAULINO OLIVERIA MARTINS represented by the Executor and THE MASTER OF THE HIGH COURT and CHRISTOPHER MARTINS
Ruled By: CHITAKUNYE J

HH34-10 : CHIRIGA ESTATES (PVT) LTD and MILRITE FARMING (PVT) LTD and SILVERTON ESTATES (PVT) LTD vs MINISTER OF LANDS AND RURAL RESETTLEMENT and MR E. PORUSINGAZI and EIGHT OTHERS
Ruled By: MUSAKWA J

HH67-10 : JAMES MUTETWA vs BARRIE DIXON and MARKO MAVHURUNE N.O. (as Executor Estate Late Samuel Mushaninga) and KENIAS MUTYASIRA N.O. (as Executor Estate Late Salome Chisvo) and REGISTRAR OF DEEDS
Ruled By: MAKARAU JP

HH118-10 : JOHN STRONG (PRIVATE) LIMITED and TOBS STRONG (PRIVATE) LIMITED vs WILLIAM WACHENUKA and MINISISTRY OF LANDS, AGRICULTURE AND RESETTLEMENT
Ruled By: GOWORA J

HH167-10 : TUSILAGO (PRIVATE) LIMITED vs HOMELINK (PRIVATE) LIMITED
Ruled By: MAKONI J

HH135-10 : TREVOR GIFFORD vs I. MUGOMBA and MUYESU and RONALD MUCHENGA and COMMISSIONER GENERAL OF POLICE
Ruled By: CHIWESHE JP

View Appeal
HH233-10 : YAKUB SURTEE vs SHAUN EVANS and PAUL FRIENDSHIP and COLLIN MacMILLIAN and RODNEY FINNIGAN and ACROSS ENTERPRISES PL
Ruled By: MTSHIYA J

HH244-10 : JARVIS MUDZENGERERE vs ESTATE LATE JACKSON JEKERA (As represented by Japson Jekera ) and CHITUNGWIZA MUNICIPALITY and HEZEKIA MUZOPA
Ruled By: CHITAKUNYE J

HB01-10 : CHIPO JHAMBA vs ALETA V. MUGWISI
Ruled By: CHEDA J

HB27-10 : PATIENCE MOYO and ZIVANAYI MWEDZI and ANDREW BALENI and MARGRET MREWA and EDMORE VETERAI and OTHERS vs BULAWAYO KNITWEAR (PVT) LTD and MESSENGER OF COURT, BULAWAYO DISTRICT
Ruled By: KAMOCHA J

HH48-13 : MELINA MATSHIYA (In her capacity as Executrix testamentary for Estate late ETTORE FUMIA) vs GEORGE FUMIA and ELLEN FUMIA and FALCON HAULIERS (PRIVATE) LIMITED
Ruled By: MAWADZE J

HH346-13 : WALKTALL (PVT) LTD vs SHEPHERD TUNDIYA
Ruled By: HUNGWE J

HH177-11 : J. MAMBARA N.O. (in his capacity as executor dative of the estate of the late Wilson Madziva) vs CAROLINE KUNAKA and BOBBY MANGODZA and OTHERS
Ruled By: MUTEMA J

HH355-13 : ENNOCENT CHIDAWANYIKA vs TATENDA CHINYOWA and ZIMBABWE ELECTRICITY TRANSMISSION AND DISTRIBUTION COMPANY
Ruled By: MTSHIYA J

View Appeal
HH61-12 : ZIMBABWE OPEN UNIVERSITY vs GIDEON MAGARAMOMBE and THE DEPUTY SHERIFF HARARE N.O.
Ruled By: KUDYA J

HH568-14 : FBC BANK LIMITED vs DUNLETH ENTERPRISES (PRIVATE) LIMITED and DUNCAN MUKONDIWA and SINIKIWE MUKONDIWA and MARIAN SMEMELWANI MAPANDA and EVA MUZUVA
Ruled By: ZHOU J

SC28-14 : SITWELL GUMBO vs PORTICULLIS (PVT) LTD T/A FINANCIAL CLEARING BUREAU
Ruled By: GWAUNZA JA

HH134-15 : SHEM CHIVHUMBA MLAMBO vs ISAAC MUTAMBI PHIRI CHIKATA
Ruled By: ZHOU J

HH147-15 : TENDAI MANGWIRO vs CO-MINISTERS OF HOME AFFAIRS and COMMISSIONER-GENRAL OF POLICE and OFFICER IN CHARGE CID SUSPECTS HARARE CENTRAL POLICE and DETECTIVE INSPECTOR MUKAMBI
Ruled By: MUSAKWA J

HH177-15 : AFRASIA BANK ZIMBABWE LIMITED vs SIMBARASHE CHIDAKWA
Ruled By: TAGU J

View Appeal
HH425-16 : AFRICAN BANKING CORPORATION OF ZIMBABWE and ABC HOLDINGS LTD vs LESLEY FAYE MARSH (PVT) LTD T/A PREMIER DIAMONDS and OTHERS
Ruled By: CHATUKUTA J

SC02-17 : GUOXING GONG vs MAYOR LOGISTICS (PRIVATE) LIMITED and THE REGISTRAR OF DEEDS
Ruled By: ZIYAMBI JA, BHUNU JA and UCHENA JA

SC67-19 : DANIEL CHINTENGO vs TREDCOR ZIMBABWE (PRIVATE) LIMITED t/a TRENTYRE ZIMBABWE
Ruled By: MALABA CJ, GUVAVA JA and BERE JA

HB48-09 : KUNDAYI KWARAMBA vs TITUS NDLOVU and NTANDOYENKOSI NDLOVU (NEE SIBANDA) and REGISTRAR OF DEEDS, N.O. and DEPUTY SHERIFF, BULAWAYO
Ruled By: CHEDA J

Appealed
HH307-16 : ASSWELL GURUPIRA and JEAN GURUPIRA vs EARTHMOVING & CONSTRUCTION COMPANY PL and SANDRA MUIR and THE REGISTRAR OF DEEDS and THE SHERIFF and THE DEPUTY SHERIFF and JOHN LEGGATTE
Ruled By: MAKONI J

View Appeal
SC85-20 : JOHN LEGGETT and EARTHMOVING AND CONSTRUCTION COMPANY PL vs ASSWEL GURUPIRA and JEAN GURUPIRA and SANDRA MUIR and THE REGISTRAR OF DEEDS and THE SHERIFF and THE DEPUTY SHERIFF
Ruled By: GWAUNZA DCJ, GOWORA JA and PATEL JA

HH174-16 : BASIL MAKURURU vs DERICK VORI
Ruled By: MWAYERA J

HH399-18 : AMON MAPIYE vs INNOCENT MUDYIWA
Ruled By: NDEWERE J

HH195-11 : ELISHA DENDEUKA vs PAPER PLACE (PVT) LTD
Ruled By: BHUNU J

Appealed
SC16-20 : INFRASTRUCTURE DEVELOPMENT BANK OF ZIMBABWE vs ENGEN PETROLEUM ZIMBABWE (RIVATE) LIMITED
Ruled By: GUVAVA JA, MAVANGIRA JA and ZIYAMBI AJA

View Appeal
HH253-16 : ENGEN PETROLEUM ZIMBABWE [PVT] LTD vs WEDZERA PETROLEUM [PVT] LTD and INFRASTRUCTURE DEVELOPMENT BANK OF ZIMBABWE
Ruled By: MAFUSIRE J

SSC36-20 : TONIC MANGOMA vs THE STATE
Ruled By: MAKARAU JA, MAKONI JA and MATHONSI JA

SC37-20 : ROSEMARY BASTIN vs KUFA MADZIMA (IN HIS CAPACITY AS THE EXECUTOR OF THE ESTATE LATE MARIMO MADZIMA)
Ruled By: MAKARAU JA, MAKONI JA and MATHONSI JA

HH05-09 : MARION LYNDA RALPH vs CHRISTIAN VAN VUUREN
Ruled By: KUDYA J

HH485-16 : PUWAYI CHIUTSI LEGAL PRACTITIONERS vs THE REGISTRAR OF THE HIGH COURT and THE TAXING OFFICER
Ruled By: CHIGUMBA J

HH552-15 : AMBASSADOR AGRIPA MUTAMBARA and ESTHER MUTAMBARA vs CONSTANTINE CHIMAKURE (EDITOR OF NEWSDAY NEWSPAPER) and ALPHA MEDIA HOLDNGS PL
Ruled By: MATANDA-MOYO J

HHH117-14 : LEE-WAVERLY JOHN vs THE STATE and RODGERS KACHAMBWA
Ruled By: MATANDA-MOYO 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

HH283-17 : IGNATIUS MASAMBA vs THE SECRETARY – JUDICIAL SERVICE COMMISSION and MERCY GORONGOZA
Ruled By: CHITAPI J

HH390-18 : MIDLANDS STATE UNIVERSITY vs ALOIS MATONGO
Ruled By: MUZOFA J