Appeal re: Limitation to the Right of Appeal iro Procedural, Statutory, Contractual Limitations & Doctrine of Peremption

SC35-22 : JOHN BASERA vs REGISTRAR OF THE SUPREME COURT OF ZIMBABWE and SAMUEL MUVUTI and JOYLIN MUVUTI and MINISTER OF LANDS, AGRICULTURE, WATER, FISHERIES AND RURAL SETTLEMENT
Ruled By: MATHONSI JA

Let me underscore the fact that effective access to justice is the underlying consideration in the application of our procedural jurisprudence....,.The rules of court must always be interpreted in a way that gives effect to the scales of justice that they are designed to balance.

SC38-22 : MINING COMMISSIONER – MASVINGO N.O. and MINING AFFAIRS BOARD and MINISTER OF MINES AND MINING DEVELOPMENT vs FINER DIAMOND (PRIVATE) LIMITED
Ruled By: BHUNU JA

This is an application for condonation of late noting of an appeal and extension of time within which to note the appeal. The application is brought in terms of Rule 43 of the Supreme Court Rules 2018.BRIEF FACTSThe first applicant is the erstwhile Mining Commissioner for Masvingo, a post which ...

BRIEF FACTS

The first applicant is the erstwhile Mining Commissioner for Masvingo, a post which he says has since been abolished. No issue arises from the said abolition of the post.

The second applicant is a quasi-judicial Board established in terms of section 6 of the Mines and Minerals Act [Chapter 21:05] whereas the third applicant is the Minister responsible for the administration of the Act.

On the other hand, the respondent is a mining concern holding various mining blocks within the first applicant's area of jurisdiction.

Following a dispute over failure to pay inspection fees, the applicants forfeited the respondent's mining claims and offered them to another company called Mining Promotions Corporation.

The company accepted the offer and has since taken over the disputed mining claims through a special grant issued by the Secretary of the Ministry of Mines.

Aggrieved by the alienation of its mining claims, the respondent approached the High Court (the court a quo) alleging fatal procedural irregularity in the process of executing the forfeiture of its mining claims.

The matter went before the late Honourable Justice Phiri, may his soul rest in eternal peace.

After reading documents filed of record and hearing counsel, the learned judge issued the following order on 15 January 2020;

“IT IS ORDERED THAT:

1. The application succeeds.

2. The first respondent's decision to forfeit applicants bear (sic) the following registration numbers, 12379BM, 12380BM, 12381BM, 12382BM, 12383BM, 10913, 10914, 10915, 10916; 10917, 10918, 10919, 10921, 10922, 12666BM, 12667, 126668, 1269, 12670, 12671, 12672, 12673, 12674, 12675 and 12578 is hereby set aside in terms of section 4(2)(a) and (e) of The Administrative Justice Act [Chapter 10:28].

3. The first and second respondents are hereby ordered, within (7) days of this order, to reinstate the applicant's name on the claim's card for the mining claims bearing registration numbers listed in clause 2 of this order and all such other official mining documents for such claims in their custody.

4. The first and second respondents be and are hereby ordered to allow applicant to opportunity (sic) to settle all outstanding inspection fees in respect of the claims listed (in) terms of the law up to the date of this order.”

The above order was issued in the absence of Mining Promotions Corporation which was then the de facto owner of the disputed mining claims.

Dissatisfied with the decision of the court a quo, the applicants sought to appeal to this Court for relief.

They were however out of time, hence this application for condonation of late noting of appeal and extension of time within which to file the appeal.

It is common cause that Justice Phiri died on 1 February 2021 before he had prepared and delivered his reasons for judgment.

The applicants have filed a copy of the appeal they intend to file in this Court. It shows that they intend to appeal without proffering the reasons for the order being appealed against.

EFFECT OF THE JUDGE'S DEATH BEFORE GIVING REASONS FOR JUDGMENT

Various issues and arguments, including the effect of the learned judge's demise before he had given formal written reasons for his judgment were advanced.

I consider that it is prudent to deal with this aspect of the case first as it has the potential of disposing of all the other issues and arguments raised in this application.

While preparing judgment, I felt the need to hear further submissions from counsel on the effect of the death of the late honourable judge before he had delivered his formal written reasons for the order sought to be appealed against.

Counsel for the respondent has since elaborated that the late judge a quo gave an ex tempore judgment in which he gave his reasons for judgment.

A transcript of the alleged ex tempore judgement is however not part of the record of proceedings before me.

In further elaboration, counsel for the respondent submitted that this application for condonation of late filing of appeal and extension of time within which to note the appeal ought to be dismissed.

This is for the reason that the applicant has since complied with the court order.

Whereupon he drew attention to paragraphs 13 and 14 of the founding affidavit, where the applicant unequivocally chronicles his endeavours to comply with the court order which he now wishes to appeal against.

In paragraphs 13 and 14 of the founding affidavit, the applicant had this to say;

“13. Upon receipt of the court order, and, in compliance with part two thereof, I caused the issuance of the invoices to enable the respondent to make payment in compliance with the court order. See annexure 'B'….,.

14. The Respondent subsequently made payment based on the issued invoices in compliance with the court order. See annexure 'C'….,.”

That the applicant complied with the court order which he now wishes to appeal against is beyond question as it emanates from his own founding affidavit.

On that score, the respondent has now placed reliance on the dictum in the case of Dhliwayo v Warman Zimbabwe (Private) Limited HB12-22 where the court a quo said:

“According to the common law doctrine of peremption, a party who acquiesces to a judgment cannot subsequently seek to challenge a judgment in which he has acquiesced.”

Undoubtedly, the applicant, by complying with the order he now seeks to appeal against, acquiesced in the judgment of the court. He can now not be heard seeking to appeal against the judgment he has complied with. He cannot approbate and reprobate as it were: see S v Marutsi 1990 (2) ZLR 370 (SC) where the court observed that:

“It is trite that a litigant cannot be allowed to approbate and reprobate a step taken in the proceedings. He can only do one or the other not both.”

The same fate visits the second applicant because it chose to ride on the back of the first applicant's founding affidavit without proffering its own.

By complying with the court order, the applicants deprived themselves of the right to appeal against the order. That finding of fact and law renders their application sterile on the basis that there can be no reasonable prospects of success on appeal.

That being the case, the application can only fail. Costs follow the result. It is accordingly ordered that:

1. The application be and is hereby dismissed.

2. The applicants are to bear the respondent's costs jointly and severally one paying and the other to be absolved.

SC47-22 : ISMAIL LUNAT vs MOHAMMED PATEL
Ruled By: CHATUKUTA JA

This is an opposed chamber application for condonation of non-compliance with the rules and extension of time in which to appeal in terms of Rule 43(1) of the Supreme Court Rules 2018 (the rules).The application was filed on 6 October 2021.The applicant intends to appeal against the whole judgment of ...

This is an opposed chamber application for condonation of non-compliance with the rules and extension of time in which to appeal in terms of Rule 43(1) of the Supreme Court Rules 2018 (the rules).

The application was filed on 6 October 2021.

The applicant intends to appeal against the whole judgment of the High Court handed down on 12 December 2019 under HB196-19.

BACKGROUND FACTS

The following facts are largely common cause.

On 11 January 2019, the applicant signed an acknowledgment of debt in favour of the respondent in the sum of USD$384,177. The applicant undertook to pay the amount by 20 March 2019.

He failed to pay the debt.

The respondent issued summons against the applicant on the basis of the acknowledgement of debt.

On 12 December 2019, summary judgement was entered in the respondent's favour for payment of the sum of US$384,177 or its equivalent, with interest, at the prevailing interbank rate.

The applicant timeously noted an appeal against that judgment to this Court on 17 December 2019 under SCB48/19.

On 6 February 2020, the respondent was granted by the High Court leave to execute the summary judgment pending the appeal.

On 2 March 2020, the applicant was called upon by the Registrar of the High Court to pay costs for the preparation of the appeal record.

The applicant, acting on advice from his legal practitioners, decided not to pay the costs.

He, instead, took a decision to abandon the appeal and settle the judgment debt. He deposited an amount of ZW$384,177 into the respondent's attorneys trust account on 17 March 2020.

The payment was at the parity rate of 1:1 notwithstanding the order by the court a quo that the rate to be applied was the prevailing inter-bank rate.

On 7 July 2020, the Registrar of the Supreme Court, acting in terms of Rule 46(5) of the Supreme Court Rules 2018 wrote to the applicant's legal practitioners advising them that the appeal had been deemed to have lapsed.

On 24 March 2021, the applicant unsuccessfully sought an interim order for stay of execution of the judgment under HB196-19, and, as final relief, a declaratur that he had acquitted his indebtedness by paying the amount of ZW$384,177.

The applicant noted an appeal under SC117/20 against the dismissal of his application.

The matter was struck off the roll on 19 July 2021 for the reason that the appeal was fatally defective.

Undeterred, the applicant sought condonation of non-compliance with the rules and extension of time in which to appeal on 28 August 2021 under SCB35/21.

The application was dismissed on 8 November 2021 in SC142-21.

The respondent, thereafter, commenced civil imprisonment proceedings against the applicant.

This prompted the applicant to file the present application on 6 October 2021.

ISSUE FOR DETERMINATION

The issue for determination, in my view, is whether the applicant has satisfied the requirements for an application for condonation for the late noting of an appeal and extension of time in which to appeal.

SUBMISSIONS BY THE PARTIES

Applicant's Submissions

Counsel for the applicant conceded, that, there has been an inordinate delay in seeking the condonation. She conceded that the applicant's legal practitioners took a deliberate decision to abandon the appeal. She further conceded that the explanation tendered by the applicant was evidently unreasonable in view of the deliberate abandonment of the appeal.

She also conceded, that, the applicant ought to have proceeded in terms of Rule 48 of the Supreme Court Rules 2018 which rule sets out the procedure which an appellant should follow if he/she/it chooses to abandon an appeal.

She conceded that the applicant's conduct was indefensible.

Counsel for the applicant submitted, that, in spite of the concessions regarding the applicant's infractions, this Court ought to grant the application for condonation nonetheless on the basis that the applicant has prospects of success on appeal.

She submitted, that, the applicant intends to raise an unassailable point of law in his prospective appeal.

The point had not been raised before the lower court and would be raised in the intended appeal as a new point of law.

She further argued, that, the other prospective grounds of appeal in the draft notice of appeal raise arguable issues warranting the granting of the condonation.

She however conceded that punitive costs, as prayed for by the respondent, were warranted even if the applicant succeeds in this appeal.

Respondent's Submissions

Riding on the concessions by counsel for the applicant, counsel for the respondent submitted that the applicant was not entitled to the relief sought.

He submitted that the requirements for such an application must be considered cumulatively. He also submitted that the applicant would not be entitled to the indulgence of the court in light of the concessions made. Furthermore, that the applicant does not have prospects of success on appeal and that the application should be dismissed with costs on a punitive scale.

Counsel for the respondent, however, raised other issues which, in my view, are irrelevant to the determination of the application in view of the concessions by the applicant.

THE LAW

The requirements for an application of this nature are well established. They are:

1. The extent of the delay;

2. The reasonableness of the explanation for the delay;

3. The prospects of success on appeal;

4. Respondent's interest in the finality of the judgment in his/her/its favour;

5. Convenience of the court; and

6. Avoidance of unnecessary delay in the administration of justice.

See Kombayi v Berkhout 1988 (1) ZLR 53 (S)…,.; HERBSTEIN & Van WINSEN, The Civil Practice of the Supreme Court of South Africa, 4th ed…,.

The requirements were rehashed by ZIYAMBI JA in Zimslate Quartzite (Pvt) Ltd & Ors v Central African Building Society SC34-17 where she held…, that:

“An applicant who has infringed the rules of the court before which he appears must apply for condonation, and, in that application, explain the reasons for the infraction. He must take the court into his confidence and give an honest account of his default in order to enable the court to arrive at a decision as to whether to grant the indulgence sought.

An applicant who takes the attitude that indulgences, including that of condonation, are there for the asking does himself a disservice as he takes the risk of having his application dismissed.”…,.

Therefore, in considering whether or not the Court should grant the applicant in casu the indulgence sought, I have to consider the reasons advanced by the applicant in his explanation for the failure to comply with the Rules.

The court retains a discretion on whether to condone the non-compliance with the Rules taking into account the principles of justice, fair play, and the established factors that have to be considered in the exercise of this discretion.

A party seeking condonation and extension of time must satisfy the court that a valid and justifiable reason exists as to why compliance did not occur and why non-compliance should be condoned.

Further, regardless of the prospects of success, a court may decline to grant condonation where it considers the explanation for failure to comply with the Rules unacceptable.

It was stated in Kodzwa v Secretary for Health & Anor 1999 (1) ZLR (S) 313 that:

“Whilst the presence of reasonable prospects of success on appeal is an important consideration which is relevant to the granting of condonation, it is not necessarily decisive.

Thus, in the case of a flagrant breach of the Rules, particularly where there is no acceptable explanation for it, the indulgence of condonation may be refused - whatever the merits of the appeal may be.

This was made clear by Muller JA in PE Bosman Transport Works Committee & Ors v Piet Bosman Transport (Pty) Ltd 1980 (4) SA 794 (A) at 799D-E, where the learned Judge of Appeal said:

'In a case such as the present, where there has been a flagrant breach of the Rules of this court in more than one respect, and where, in addition, there is no acceptable explanation for some periods of delay and, indeed, in respect of other periods of delay, no explanation at all, the application should, in my opinion, not be granted whatever the prospects of success may be.'

The same point was made by Hoexter JA in Rennie v Kamby Farms (Pty) Ltd 1989 (2) SA 124 (A) at 131G-J where the learned Judge of Appeal said:

'In applications of this sort, the prospects of success are, in general, an important, although not decisive, consideration.

It has been pointed out (Finbro Furnishers (Pty) Ltd v Registrar of Deeds, Bloemfontein & Ors 1985 (4) SA 773 (A) at 789C) that the court is bound to make an assessment of the petitioner's prospects of success as one of the factors relevant to the exercise of the court's discretion unless the cumulative effect of the other relevant factors in the case is such as to render the application for condonation obviously unworthy of consideration.

It seems to me, that, in the instant case, the cumulative effect of the factors which I have summarised…, above is by itself sufficient to render the application unworthy of consideration; and that this is a case in which the court should refuse the application irrespective of the prospects of success.'”…,.

See also Jaison Kokerai Machaya v Lameck Nkiwane Muyambi SC04-05.

APPLICATION OF THE LAW

Extent of the delay

The judgment under HB196-19, that the applicant seeks to appeal against, was handed down on 12 December 2019.

The applicant was required to have noted the appeal on or before 9 January 2020.

This application was filed 21 months out of time.

The notice of appeal that was timeously filed under SCB48/19 was deemed to have lapsed on 7 July 2020.

The present application was filed 15 months after the lapse of the appeal.

The inordinate delay has been properly conceded by the applicant.

REASONABLENESS OF THE EXPLANATION FOR THE DELAY

It is the applicant's submission that the reason for his delay was that he had received advice, which advice he accepted, from one of the senior partners at the firm of his legal practitioners, to settle the debt in accordance with the dictates of the case of Zambezi Gas v N.R. Barber and Anor SC03-20.

He paid the debt in Zimbabwean dollars, which the respondent did not accept on the grounds that the applicant was required to pay the debt at the prevailing interbank rate, or in US dollars, as ordered in HB196-19.

The applicant contended that he instructed his legal practitioner to brief counsel to review his case.

It is then that it became clear to him that any argument on the invalidity of a judgment under SC48/19 would best be made in an appeal against the judgment itself.

He discovered that his original notice of appeal was not in accordance with the Rules as it did not clearly and concisely state the grounds of appeal and the exact prayer sought.

He then decided not to seek the reinstatement of the appeal and opted to pursue the present route.

Counsel for the applicant conceded that the explanation was not satisfactory.

In spite of the concession, it is necessary to interrogate the explanation as it must be considered cumulatively with the other requirements.

The reason for the delay proffered by the applicant is very simple.

It is that he took a deliberate decision not to pay costs for the preparation of the record of appeal upon being requested to do so by the Registrar. Instead of pursuing the appeal under SC48/19, he sought to pursue other options to satisfy the judgment debt.

To say the explanation was not satisfactory is an understatement. The explanation was hopelessly unsatisfactory for a number of reasons:

(i) Firstly, the applicant made a calculated decision not to pursue the appeal. He decided to settle the judgment debt at the parity rate in spite of the dictates of the judgement which required him to pay the debt at the inter-bank rate.

The import of the decision he took is that the applicant chose to disregard a court judgment which was extant.

The judgment remained binding because the applicant deliberately chose not to test the correctness of the judgment that he now seeks to appeal against.

He, instead, decided to apply his own rate to pay off the judgment debt which was contrary to the rate prescribed in the judgment.

This was a clear disdain and open defiance of an order of court as it was incumbent upon the applicant to pay at the prevailing interbank rate.

(ii) Secondly, after the applicant opted on a rate to apply, other than the interbank rate, he hit a brick wall when the respondent indicated that he had not fully discharged the judgement debt.

He decided to seek a stay of execution in circumstances where the respondent had successfully obtained an order for execution of the judgment pending appeal under HB196-19.

Leave to execute had in fact been granted unopposed.

The application for stay of execution was filed on 24 March 2021, a year after the Registrar had requested the applicant to pay costs for preparation of the appeal record.

The appeal under SC48/19 had been deemed, by virtue of Rule 46(5) of the Supreme Court Rules, to have lapsed by operation of law.

The application for stay of execution was therefore launched notwithstanding the fact that there was no pending appeal against the judgment HB196-19 - which appeal the applicant had unilaterally and intentionally abandoned.

There was no legal basis for the application for stay as there was no pending appeal.

The applicant further sought a declaratur, as the final relief, on the basis that he had discharged his indebtedness by paying the judgment debt at the parity rate.

This, again, was notwithstanding the extant judgment under HB196-19 which stipulated that payment be at the interbank rate.

In essence, the applicant was seeking, in the final order, to set aside the judgment under HB196-19 through an urgent chamber application.

The final relief sought was therefore not competent.

(iii) Thirdly, the applicant was not a self-actor. He was represented by counsel at all times. He disregarded the Rules of Court on the advice of his legal practitioners.

He stated, in paragraph 16 of the founding affidavit, that:

“16. The understanding of my legal practitioners, which I share, was that, in the wake of the judgment of this Honourable Court in the Zambezi Gas case, and given the date of the debt in this matter, I was entitled to pay ZW384,177 as the parity rate applied to the debt.”

The applicant agreed with the advice given by his legal practitioners. He is therefore not blameless. The applicant, being represented, ought to have known of the probable ramifications that could arise due to his abandonment of the appeal.

(iv) Fourthly, instead of pursuing an appeal against the judgment under HB196-19, the applicant, acting on the advice of counsel, unsuccessfully sought to challenge the judgment by the High Court dismissing his application for stay of execution - not only once, but twice.

(v) Fifthly, the decision to pursue his appeal again was only prompted by the respondent's decision to institute civil imprisonment proceedings. It is only then that he decided to have counsel briefed. Prior to the civil imprisonment proceedings, the applicant was happy to delay the execution of the judgment under HB196-19 by pursuing incompetent proceedings a quo and before this Court.

In spite of the concession by the applicant, that the delay is inordinate and that the explanation for the delay is unsatisfactory, a litigant who wantonly disregards the Rules of this court (and brazenly states so in his founding affidavit) does not deserve the indulgence of the court.

The indulgence of the court should be reserved for parties who inadvertently do not comply with the Rules.

In Ndebele v Ncube 1992 (1) ZLR 288 (S) at 290C-D it was held that:

“It is the policy of the law that there should be finality in litigation. On the other hand, one does not want to do injustice to litigants. But, it must be observed that in recent years applications for rescission, for condonation, for leave to apply or appeal out of time, and for other relief arising out of delays either by the individual or his lawyer, have rocketed in numbers. We are bombarded with excuses for failure to act. We are beginning to hear more appeals for charity than for justice. Incompetence is becoming a growth industry. Petty disputes are argued and then re-argued until the costs far exceed the capital amount in dispute….,.”

It was further held, at 290E-F, that:

“There will always be cases where the delay is due to some reasonable incapacity to act in time, or to some understandable oversight such as the misfiling or misplacing of a document. This is not such a case….,. The time had come to call a halt to the throwing of good money after bad….,.”…,.

The import of the averments by the applicant is, that, despite having deliberately disregarded the Rules on the advice of counsel, he can come back two years later to seek the indulgence of this Court.

The impression created by the applicant's averments and concessions is that condonation is for the asking solely on the basis that the applicant's appeal is arguable.

To extend indulgence under the present circumstances would, in my view, bring the administration of justice into disrepute.

INTEREST OF THE RESPONDENT IN THE FINALITY TO LITIGATION

One of the considerations in deciding whether or not to grant condonation is the respondent's interest in the finality of the judgment of the court.

The respondent obtained judgment on 12 December 2019. After the applicant noted an appeal against the judgment, the respondent obtained an order for leave to execute on 6 February 2020.

The respondent caused the execution of the judgment. He successfully opposed the application by the applicant for stay of execution. He resisted the appeal under SC117/20. He opposed the application for condonation for late noting of appeal under SCB35/21. He instituted civil imprisonment proceedings against the applicant.

The respondent has clearly exhibited an interest in the finality of the litigation between him and the applicant.

The respondent has obviously proceeded, for the past two years, under the impression that the applicant no longer intends to pursue the appeal - only to be landed with an application to resuscitate the appeal wilfully abandoned two years ago.

In order to forestall the civil proceedings instituted by the respondent, the applicant now wishes to appeal against the judgment granted in 2019.

As stated in Jaison Kokerai Machaya v Lameck Nkiwane Muyambi SC04-05 …,.:

“The notion that condonation of a breach of the Rules is there for the asking ought to be dispelled. And, there must be finality to litigation.

It is an injustice to a party who has been waiting to execute his judgment to be forced to suffer the effects of the disregard by the other party's legal practitioners of the Rules of Court, namely, the delaying of the execution of his judgment.”

It appears the applicant's attitude is that the longer it takes for the respondent to enjoy the benefits of the judgment under HB196-19 the better for him. This cannot be countenanced by the law as there must be finality to litigation.

PROSPECTS OF SUCCESS

The applicant argued that he intends to introduce new points of law in his intended appeal.

I have therefore considered that the question whether the applicant has prospects of success is not decisive: Kodzwa v Secretary for Health & Anor 1999 (1) ZLR (S) 313.

The applicant could have prosecuted his appeal under SC48/19 and raised in that appeal the very point of law, in that appeal, which it now seeks to raise in the proposed appeal.

In The Ampthill Peerage [1977] AC 547…, LORD WILBERFORCE remarked as follows:

“Any determination of dispute of fact may, the law recognises, be imperfect; the law aims at providing the best and safest conclusion compatible with human fallibility, and, having reached that solution, it closes the book. The law knows, and we all know, that, sometimes fresh material may be found which perhaps might lead to a different result, but, in the interest of peace, certainty, and security it prevents further inquiry.”

The prospects of success, or lack thereof, of the applicant's prospective appeal are outweighed by the other requirements for condonation.

This is borne out by counsel for the applicant's concession that the applicant's infractions warrant an order of punitive costs.

COSTS

Costs follow the cause. Counsel for the applicant conceded that punitive costs were warranted in the present case.

DISPOSITION

The application is beset by infractions of the Rules of this Court. The delay by the applicant in seeking the condonation is considerable and clearly inordinate. The explanation tendered in support of the application is also unsatisfactory - especially when considering the concession by the applicant's counsel that the infraction was deliberate. The applicant does not deserve the indulgence of the court.

In the result, the application is dismissed with costs on a legal practitioner and client scale.

SC49-22 : NGWARU MASANZA (Informa pauperis) and PRISCILLA ZUNGUZA (Informa pauperis) vs LUKE RWAFA and PLACXEDAS RWAFA and MESSENGER OF COURT
Ruled By: CHIWESHE JA

In this urgent chamber application, the applicants seek a provisional order couched as follows:“TERMS OF THE FINAL ORDER SOUGHTThat you show cause to this Honourable Court why a final order should not be made in the following terms:(1) That a stay of execution of the order given in CHN286/19 be ...

In this urgent chamber application, the applicants seek a provisional order couched as follows:

“TERMS OF THE FINAL ORDER SOUGHT

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

(1) That a stay of execution of the order given in CHN286/19 be granted pending application in the High Court for condonation for late filing of leave to appeal.

(2) In the event that this matter is opposed, that the Respondents be and are hereby ordered to pay costs.

INTERIM RELIEF GRANTED

Pending finalisation of this matter, an interim order is hereby granted in the following terms:

IT IS ORDERED THAT:

1. This application succeeds and a stay of execution of the judgment in the Chinhoyi Magistrates Court, under case number CHN286/19, be and is hereby granted to the applicants pending application in the High Court for condonation for late filing of leave to appeal to the Supreme Court.”

FACTUAL BACKGROUND

In early 2000, at the height of the land reform programme, the applicants and many others moved to occupy Heydon Farm on the outskirts of Harare. They proceeded to build family homes and to engage in agricultural activities.

Subsequently, the whole of Heydon Farm was compulsorily acquired by the State and a notice to that effect was published in the Government Gazette in terms of the Land Acquisition Act [Chapter 20:10].

Contrary to their expectations, none of the occupiers were favoured with either offer letters, permits, or lease agreements which documents would have regularised their stay at Heydon Farm.

Instead, part of the farm was subdivided into residential Stands with title deeds and sold to various persons.

This formalised part of the farm is referred to as Heydon Township.

The respondents, who are husband and wife, bought one of these residential stands, described as Stand 2915 Haydon Township, measuring 2193 square metres, and received title.

It is common cause, that, at the time of sale and transfer the applicants were resident at what became the respondents residential Stand. It is also common cause that the applicants have no legal basis to occupy Heydon Farm in general or the respondents Stand in particular.

In order to assert their proprietary rights, the respondents approached the Magistrates Court at Chinhoyi seeking an eviction order against the applicants. Their application succeeded and an order for the eviction of the applicants from Stand 2915 Haydon Township was granted under case number CHN286/19.

Aggrieved with that outcome, the applicants noted an appeal with the High Court (the court a quo). The court a quo dismissed the appeal and confirmed the eviction order granted by the Magistrates Court.

The respondents then noted an appeal with this Court under case number SC277/20 which appeal suspended the order of the court a quo.

Undeterred, the respondents filed an application for leave to execute pending appeal. The application was granted by CHITAPI J under case number HC3097/20.

The applicants noted an appeal against that judgment under case number SC441/20. The appeal was struck off the roll on the grounds that leave to appeal ought to have been sought in the court a quo.

SC52-22 : AL SHAMS GLOBAL BVI LIMITED vs DEPOSIT PROTECTION CORPORATION and KIITUMETSI ZAWANDA and EQUITY PROPERTIES (PVT) LTD and REGISTRAR OF DEEDS N.O.
Ruled By: MATHONSI JA, KUDYA JA and MUSAKWA JA

On 4 November 2021 the High Court (“the court a quo”) struck off the roll with costs on a higher scale an urgent application filed by the appellant for an order directing the third respondent (Equity Properties (Pvt) Ltd) to forthwith surrender to the fourth respondent (Registrar of Deeds N.O.) a replacement Deed of Transfer number 9068/2008 and barring the third respondent from using such replacement Deed of Transfer in lieu of the original on the pain of costs on the adverse scale.

This appeal is against that striking off judgment which the appellant would like to have set aside and substituted with the substantive relief it unsuccessfully sought in the court a quo.

BACKGROUND FACTS

The facts relevant to the resolution of this appeal are largely common cause.

The first respondent (Deposit Protection Corporation) is the liquidator of Interfin Banking Corporation (“Interfin”) which is undergoing final liquidation. The second respondent (Kiitumetsi Zawanda) is the Company Secretary of the first respondent whom the appellant elected to join as a party to the proceedings, in her personal capacity, for unclear reasons.

The third respondent (Equity Properties (Pvt) Ltd) is the owner of certain immovable property known as Lot 3 of Bannockburn, Harare which it holds by Deed of Transfer Number 9068/2008.

As security for a debt owed to Interfin Banking Corporation (Interfin), the third respondent surrendered its title deed to Interfin which registered Mortgage Bond No.5818/2011 on the title deed.

In turn, Interfin obtained certain sums of money from the appellant which it secured by the third respondent's title deed surrendered to the appellant.

Since then, the appellant has tenaciously held onto the title deed in question despite demand for its release made by the liquidator in the discharge of its duties as such.

Indeed, the liquidator was constrained to demand the surrender of the title deed after the third respondent acquitted all its indebtedness to Interfin, the company in liquidation, thereby obliging the liquidator to cancel the mortgage bond.

Following the repayment of the loan, the liquidator was also obliged to hand the title deed over to the third respondent.

Bereft of any sense of solution, the liquidator applied for a replacement title deed from the Registrar of Deeds, the fourth respondent herein.

The fourth respondent acceded to the application and issued a replacement title deed on 7 September 2021.

That triggered the present litigation.

The appellant moved swiftly and filed an urgent application for a mandamus on 13 October 2021.

As I have said, it sought, in the interim, the immediate surrender to the fourth respondent of the replacement title deed and the barring of the third respondent from using it for whatever purpose.

The basis of the application was that, not only were the respondents aware that the appellant was in possession of the original title deed, the third respondent was selling properties to individuals using the replacement title deed.

According to the appellant, the third respondent's conduct was causing irreparable damage and undue hardship to it by dissipating the immovable property.

The application was opposed by the first, second, and third respondents.

They raised a number of preliminary objections, chief among which were the failure of the appellant to obtain leave of the court to sue the first respondent, the liquidator of a company in liquidation, and the misjoinder of the second respondent in her personal capacity.

The court a quo found that the application was improperly before it by reason that no leave to sue had been sought and obtained before embarking on litigation.

In arriving at that conclusion, the court a quo followed the case of Chikura N.O. & Anor v Alshams Global BVI Ltd SC23-20 in which this Court remarked…,.:

“As correctly observed, in part, by the court a quo, leave of the court is required before proceeding against a company and/or bank in liquidation.

This is so because the broad purpose of the law of insolvency, and the winding up of companies, is to ensure due distribution of the insufficient assets of the debtor company amongst the competing creditors under the watchful eyes of the court. Thus, the position is settled at law that an order placing an estate or a company in liquidation has the effect of creating a concursus of the creditors of the insolvent and no creditor can thereafter do anything that will alter the rights and interests of other creditors without the leave of the court.

Unsupervised and unsanctioned litigation and proceedings against the insolvent will disturb the due distribution of the insufficient assets and remove the role of the court from the process.

It may also be added, that, the leave of the court is necessary in such circumstances as a broader consideration of protecting the economically fragile company from unnecessary litigation quite apart from merely protecting the interests of the creditors.

It being common cause that leave of the court was not sought and obtained prior to the institution of the proceedings a quo, the appeal succeeds on this basis alone.”

Indeed, as in the present case, the respondent in that case had sued the liquidator of Interfin Banking Corporation (Interfin) without the leave of the court.

It argued, that, the cause was not against the Bank but was against the liquidator as an administrative authority under the Administrative Justice Act [Chapter 10:28].

The court a quo refused to be drawn to consider the merits of the application. It reasoned, at paragraph 20 of its judgment:

“There are set procedures that are followed by a creditor to recover a debt from a company under liquidation.

Leave to sue is necessary for a party to show the court why its particular case needs a suit outside the normal procedures that are there for recovering a debt by creditors through the appointed liquidator.

It is the court that is tasked with assessing the merits of any application, including its prospects of success, based on the sufficiency of evidence placed before it. Indeed, it would have been under such an application for leave to sue that an issue such as that raised by respondents herein, that the company is not registered locally, would have been considered under prospects of success in determining whether or not that leave to sue should be granted.”

THE APPEAL

The appellant was thoroughly disgruntled by that outcome.

It launched this appeal on six (6) grounds, including an attack on the conclusion of the court a quo that leave to sue was required.

Although there are multiple grounds, the issue for determination is very narrow indeed.

It is whether there was need for leave to be sought and obtained before filing the application against the liquidator.

I should add, that, prior to the date of hearing of the appeal, the first and third respondents gave notice of objections in terms of Rule 51 of the Supreme Court Rules 2018.

After hearing counsel on the objections, this Court requested to be addressed on the merits while parking its decision on the preliminary objections.

This was done in the interest of expediency to avoid reconvening again depending on the outcome of the preliminary objections.

Accordingly, with the consent of the parties, the court heard the merits of the appeal on the understanding that they will only be related to in the event of the preliminary objections not being upheld.

I proceed therefore to consider those objections.

Counsel for the first and second respondents premised his objections on three (3) points:

(i) First, counsel submitted that the judgment of the court a quo sought to be impugned, to the extent that it merely struck the applicant's application off the roll for want of leave to sue the liquidator, is not appealable at all. It does not meet the requirements of a judgment that can be appealed against.

In advancing that argument, reliance was placed on two South African authorities. The first is the case of Zweni v Minister of Law and Order 1993 (1) SA 523 (A) which set out three attributes of an appealable judgment. These are that;

(i) The decision must be final in effect and not susceptible to alteration by that court;

(ii) It must be definitive of the rights of the parties by granting definite and distinct relief; and

(iii) It must have the effect of disposing of at least a substantial portion of the relief claimed in the proceedings.

The first and second respondents case is that none of the foregoing three requirements of an appealable judgment exist in the impugned judgment because the court a quo deliberately refrained from delving into any of the merits of the dispute. Instead, it was content to strike off the application on the basis that leave was not obtained. The court a quo will still determine the merits once leave is obtained.

The other authority cited by counsel for the first and second respondents is Pretoria Garrison Institutes v Danish Variety Products 1948 (1) SA 839 (A)…, where the following remarks were made:

“A wholly unrestricted right of appeal from every judicial pronouncement might well lead to serious injustices. For, apart from the increased power which it would probably give the wealthier litigant to wear out his opponent, it might put a premium on delaying and obstructionist tactics.

This latter consideration has, I imagine, been the predominant one in leading legislators to try to restrain the bringing of appeals from orders of a preparatory or procedural character arising in the course of a legal battle.”…,.

Contesting that preliminary objection, counsel for the appellant submitted that whenever there is a sentence or judgment of the court that a litigant is unhappy with, there is a right to appeal.

In counsel's view, it would be a sad day indeed, were certain matters be made to end at the court a quo without testing their correctness on appeal.

(ii) Second, counsel for the first and second respondents submitted, that, the judgment of the court a quo, that the application was improperly before it for want of leave to sue the liquidator, and therefore striking it off the roll, was interlocutory in nature. For that reason, so it was argued, it could not be appealed without the leave of the court a quo.

In counsel's view, the striking off of the application was merely a procedural step which, at best, was merely interlocutory. To that extent, any challenge of the judgment is regulated by section 43(2) of the High Court Act.

Counsel for the third respondent also took a similar preliminary objection based on absence of leave to appeal.

She submitted, associating herself fully with submissions made on behalf of the first and second respondents, that, for all intents and purposes, the striking off was interlocutory.

Counsel maintained, that, the appeal is improperly before the court because leave to appeal was not sought.

In addition, counsel for the third respondent urged the court to take judicial notice of proceedings instituted by the appellant in case number HC6264/21.

According to counsel, it is an application, exactly the same as the one forming the basis of this appeal, brought by the appellant after its initial application was struck off the roll. It seeks the same relief, except that in it the appellant did not join the executor and its Company Secretary.

It was submitted that this was a clear case of peremption.

The right of an unsuccessful litigant to appeal, it was argued, is perempted when that litigant, at the same time, complies with the judgment.

By filing the same application, without citing the first and second respondents, the appellant should be taken as having accepted the correctness of the judgment a quo.

In response, counsel for the appellant did not directly address the question whether the judgment was interlocutory and therefore requiring leave of the court a quo before an appeal could be noted.

He submitted, that, in the body of the judgment, the court a quo commented on the merits of the matter. For that reason, the court is at liberty to entertain the appeal even though leave was not sought.

In making that argument, counsel for the appellant relied on the case of Portland Holdings Ltd v Tupelostep Investments (Pty) Ltd & Anor SC03-15 in which an application was adjudged by the court a quo as not urgent. The court a quo had however gone on to dismiss the application instead of striking it off the roll to enable the applicant therein, if it so wished, to proceed with the application as an ordinary application.

Apart from that, the court a quo had also made several comments on the merits of the matter and also overlooked most of the relevant evidence pointing to the urgency of the application.

This Court was clear that “the matter ought to have been dealt with on the basis of urgency.”

Taking all the mistakes made a quo into account and that the Appeal Court was in as good a position as the court of first instance to determine the matter and substitute its own discretion, this Court allowed the appeal. It granted the relief sought in the application.

Counsel for the appellant urged of this Court the adoption of the same approach because the court a quo, in the present case, also made comments on the merits of the matter.

He submitted that this Court should grant the full relief sought a quo even though the court a quo did not relate to the merits or the relief sought.

Regarding preemption, it was submitted on behalf of the appellant that its grief with the judgment a quo was recorded in the notice of appeal filed in this Court. In counsel's view, the fact that subsequent to the filing of that notice of appeal, the appellant saw it fit to return to the court a quo with another application did not signify satisfaction with the judgment appealed against.

This is so, so the argument goes, because the parties in the subsequent application are different from those in the present matter.

ANALYSIS

Regarding the issue whether the judgment of the court a quo is appealable: my view is that the procedure for appealing in this jurisdiction is heavily regulated.

As shall become apparent shortly, even the orders of the nature of the one which is the subject of the present appeal, are regulated by statute. As such, if the legislature intended to constrain any right of appeal it would have said so in specific terms.

Indeed, even the authority relied upon by counsel for the first and second respondents, Pretoria Garrison Institutes v Danish Variety Products 1948 (1) SA 839 (A) presupposes that the restrain from appealing certain court orders has to be imposed by the law-giver before the right of appeal can be restricted or prohibited.

I am therefore not persuaded by the first leg of the first and second respondents preliminary objection. It is accordingly rejected.

In my view, that position accords with the constitutional right of access to the courts for the resolution of any dispute enshrined in section 69(3) of the Constitution.

The question whether the judgment a quo is interlocutory or not is central in the resolution of the second leg of the preliminary objection.

Section 43(2) of the High Court Act [Chapter 7:06] governs appeals against interlocutory judgments or orders. It provides:

“(2) No appeal shall lie -

(a)…,.

(b)…,.

(c)…,.

(d) From an interlocutory order or interlocutory judgment made or given by a judge of the High Court, without the leave of that judge, or, if that has been refused, without the leave of a judge of the Supreme Court, except in the following cases -

(i) Where the liberty of the subject or the custody of minors is concerned;

(ii) Where an interdict is granted or refused;

(iii) In the case of an order on a special case stated under any law relating to arbitration.”

There is little doubt that the phrase “interlocutory order” is one that has vexed the legal mind for a considerably long time.

Its definition has eluded the courts, but, there is a very helpful discussion of it by DEVITTIE J in Mwatsaka v ILC Zimbabwe 1998 (1) ZLR 1 (H) where the learned Judge reviewed a number of authorities discussing the phrase “interlocutory orders”.

He referred to the reasoning of CORBETT JA…, in South Cape Corp v Engineering Management Services 1977 (3) SA 534 (A)…, where the court remarked:

“I think, nevertheless, the general effect of this series of decisions, together with consistent judgments of other courts, may be summarized as follows:

(a) In the wide and general sense, the term 'interlocutory' refers to all orders pronounced by the court, upon matters incidental to the main dispute, preparatory to, or during the progress of the litigation. But, orders of this kind are divided into two classes:

(i) Those which have a final and definitive effect on the main action; and

(ii) Those known as simple (or purely) interlocutory orders proper or 'interlocutory orders proper' which do not: see, generally, Bell v Bell 1908 TS 887 at p890; Steytler N.O. v Fitzgerald supra at pp303, 311, 325-6, 342; Globe & Phoenix Gold Mining Co. Limited v Rhodesian Corp Ltd 1932 AD 146 at pp153.”

The court went on, at p8C, relying on the authority of Pretoria Garrison Institutes v Danish Variety Products 1948 (1) SA 839 (A), to make the point that the test as to whether an interlocutory order is one which is preparatory or procedural and therefore not appealable unless it is such that it disposes of any of the issues or any portion of the issue in the main action or suit or it irreparably anticipates or precludes some of the relief which would or might be given at the hearing.

As stated in Mwatsaka v ILC Zimbabwe 1998 (1) ZLR 1 (H), those interlocutory orders which do not meet the criteria of non-appealable orders set out in Pretoria Garrison Institutes v Danish Variety Products 1948 (1) SA 839 (A) are termed simple interlocutory and are appealable with leave in terms of section 43(2) of the High Court Act.

It occurs to me that the order striking off the appellant's application from the roll was interlocutory in the sense that it did not determine any issue which was the subject of the main suit.

It was, however, appealable in the sense that it brought the entire edifice of the application to a screeching halt.

The application would not proceed any further until such time that the appellant sought and was granted leave to sue.

The judgment left the entire dispute unresolved.

While the appellant was seeking an interdict, the interdict was neither granted nor refused thereby disqualifying the matter from one of the exceptions to the requirement for leave to appeal to be sought.

It being an interlocutory judgment or order which did not fall under any of the exceptions set out in paragraph (d) of section 43(2) of the High Court Act, it means that leave should be sought and obtained from the judge a quo, or a judge of this Court, before an appeal can be brought to this Court.

On the issue of pre-emption raised by counsel for the third respondent, while it is correct that generally the court is always entitled to make reference to its own records and proceedings, see Mhungu v Mtindi 1986 (2) ZLR 171 (S), and it is not disputed by the appellant that it filed another application which excluded the first and second respondents, my view is that the issue was raised mainly to buttress the objection on the need for leave. In addition, it was relied upon to justify the prayer for costs on the adverse scale.

Having arrived at the conclusion that leave of the court was required to lodge the appeal, I find it completely unnecessary to engage the aspect of peremption beyond what I have done. Clearly, it does not change the fact that the appeal is improperly before the court.

DISPOSITION

The judgment or order striking off the application, by reason of the failure of the appellant to obtain leave to sue the liquidator of Interfin Banking Corporation (Interfin), a company in liquidation, was interlocutory in nature.

The court a quo summarized the respective positions of the parties but simply did not engage the merits at all. It left all the issues in dispute unresolved, and, it is open to the court a quo to engage and determine all the issues once leave to sue has been sought and granted.

The nature of the judgment or order in question is such that it does not meet the criteria of a non-appealable judgment or order.

While it is a simple interlocutory judgment or order it is appealable, but, only with leave as required by section 43(2)(d) of the High Court Act. Such leave not having been sought and granted, it was incompetent for the appellant to purport to appeal to this Court.

As a corollary to that, the matter is improperly before the court. It ought to be struck off the roll....,.

1. The matter is struck off the roll.

SC57-22 : ERICA NDEWERE vs PRESIDENT OF ZIMBABWE N.O. and CHIEF JUSTICE N.O. and JUDGE PRESIDENT OF THE HIGH COURT N.O. and JUDICIAL SERVICE COMMISSION and MINISTER OF JUSTICE N.O.
Ruled By: MAKONI JA, MATHONSI JA and KUDYA JA

This is an appeal against the whole judgment of the High Court (the court a quo) in which it dismissed the appellant's urgent chamber application wherein she sought an interdict to prevent the first respondent (the President) from establishing a Tribunal in terms of section 187(3) of the Constitution of ...

FACTUAL BACKGROUND

The appellant is a former judge of the High Court of Zimbabwe having been removed from office by the President on the recommendations of a Tribunal he set up.

What led to the intended establishment of the Tribunal were complaints relating to the appellant's performance as a judge.

In particular, the complaints related to her work output, which was deemed unsatisfactory and below the expected standard. One of the complaints was that the appellant issued a review judgment in respect of criminal proceedings without having properly perused the record of proceedings. As a consequence, she ordered the release, from prison, of a person who had previous convictions which militated against his release.

The position of the fourth respondent, Judicial Service Commission (JSC), was that the appellant's conduct, inter alia, amounted to gross misconduct and/or gross incompetence warranting the referral of the matter to the President in terms of section 187(3) of the Constitution.

It is common cause, that, by letter dated 15 September 2020, the appellant was advised by the Judicial Service Commission (JSC) that she was under investigation for impeachable acts of misconduct.

In response, the appellant's erstwhile legal practitioners, in a letter dated 30 September 2020, wrote back to the Judicial Service Commission (JSC) indicating that the appellant was not obliged to respond to that matter. Their view was that the JSC had no legal authority to deal with the complaints raised against the appellant and that the second respondent (Chief Justice) had no authority to direct the JSC to attend to any complaints against a sitting judge of the High Court.

Further, the letter highlighted, that, in any event, it was premature for the Judicial Service Commission (JSC) to invoke section 187(3) of the Constitution before compliance with the provisions of the Judicial Service (Code of Ethics) Regulations SI107 of 2012 (Code of Ethics).

Consequently, the Judicial Service Commission (JSC) resolved that the question of the appellant's removal from office ought to be investigated by a Tribunal appointed to inquire into the matter in terms of section 187(3) of the Constitution.

It advised the appellant of this resolution by letter dated 12 October 2020.

A day after receipt of the letter, the appellant, through her erstwhile legal practitioners, filed an urgent chamber application under case number HC6128/20 which she subsequently withdrew.

On 26 October 2020, the appellant, through her current legal practitioners, filed yet another application through the chamber book, seeking the Provisional Order which is the subject matter of this appeal. The Provisional Order sought reads as follows:

“INTERIM RELIEF GRANTED

IT IS ORDERED THAT:

1. Pending the final determination of the legality of the fourth respondent's decision to advise the first respondent to establish a Tribunal in the absence of due process, the first respondent be is hereby interdicted from setting up a Tribunal to investigate the question of removing the applicant from office in terms of section 187(3) of the Constitution.

2. In the event that a Tribunal referred to here above is already set up by the first respondent to investigate the applicant's conduct, then, the Tribunal's proceedings be stayed until the determination of the legality of the fourth respondent's decision to advise the first respondent to establish a Tribunal.

TERMS OF THE FINAL ORDER SOUGHT

That the first, second, third, fourth, and fifth respondents show cause to this Honourable Court why a final order should not be granted in the following terms:

1. The fourth respondent's decision advise to the first respondent to set up a Tribunal to inquire into the question of whether the applicant should be removed as a judge be and is hereby declared unlawful and set aside (sic).

2. It is hereby declared that any disciplinary action against the applicant must be done in compliance with Statutory Instrument 107 of 2012 being the Judicial Services (Code of Ethics) Regulations, 2012 as read with the Constitution of Zimbabwe.”

PROCEEDINGS IN THE COURT A QUO

At the commencement of the proceedings, the fourth respondent (Judicial Service Commission) raised five points in limine which the second and third respondents (Chief Justice and Judge President of the High Court) associated themselves with.

The appellant also raised a point in limine.

On the merits, the appellant contended that she managed to satisfy all the pre-requisites for the granting of an interim interdict. She argued that a proper construction of section 187(3) and section 190(4) of the Constitution, as well as Part III of the Judicial Service (Code of Ethics) Regulations, S.I.107 of 2012 (Code of Ethics) reveals that a judge accused of any act of misconduct is entitled to be subjected to the provisions of the latter enactment before any contemplated referral to the President can be done.

The appellant submitted, that, the interpretation given by the Judicial Service Commission (JSC) to section 187(3) of the Constitution, to the effect that it is empowered to refer such a matter directly to the President without resorting first to the Judicial Service (Code of Ethics) Regulations, SI107 of 2012 (Code of Ethics) will have the effect, inter alia, of not only eroding the independence of the judiciary but also negates the very notion of security of tenure of the judges, deprives the appellant of her right to administrative justice as enshrined in section 68 of the Constitution, results in the negation of her right to protection against unfair discrimination and equal protection of the law in that other judges accused of misconduct were subjected to the Code of Ethics, and, finally that the procedure adopted by the JSC attenuates the principle of certainty in that whereas some judges are first subjected to the Judicial Service (Code of Ethics) Regulations, others, like herself, do not get to enjoy that “two- rung” process.

The appellant further contended, that, the Judicial Service (Code of Ethics) Regulations, SI 107 of 2012 (Code of Ethics) was a direct consequence of section 190(4) of the Constitution.

She also contended, that, the gravity or nature of the alleged infraction was immaterial and irrelevant in so far as the procedure to be followed is concerned.

In her view, the provisions of the Judicial Service (Code of Ethics) Regulations (Code of Ethics) are prescriptive and no departure therefrom is permissible. No distinction is drawn, in terms of the legislation and as far as procedure is concerned, between the disciplinary action against judges in terms of the Code of Ethics vis a vis their removal from office as the latter is a species of the former.

The Judicial Service Commission (JSC), per contra, contended that it did no more than what section 187(3) of the Constitution entitled it to do.

It disputed the interpretation given to the said provision by the appellant and argued that impeachable conduct referred to the President does not have to be preceded by proceedings under the Judicial Service (Code of Ethics) Regulations, S.I. 107 of 2012 (Code of Ethics).

Furthermore, the respondents submitted that it was clear ex facie the record that the appellant was potentially guilty of gross misconduct, or, in the alternative, gross incompetence, and, as such, the existence of a prima facie case against her meant that the provisions of section 187(1)(a) and (b) as read with section 187(3) of the Constitution had been properly triggered by the Judicial Service Commission (JSC).

It was their submission, that, the aforementioned sections relate to impeachable conduct and thus it had a basis to refer the matter to the President.

DETERMINATION BY THE COURT A QUO

The court a quo, in a well-reasoned judgment, dismissed all the preliminary points raised by the Judicial Service Commission (JSC) and the appellant.

None of the parties appealed against the court a quo's dismissal of the points in limine.

It will therefore, not be necessary, for the determination of this matter, to relate to the findings of the court a quo on the preliminary points.

On the merits, the court a quo held that in so far as the procedure for dealing with judges accused of acts of misconduct is concerned, section 187(3) of the Constitution and Part III of the Judicial Service (Code of Ethics) Regulations (Code of Ethics) provide distinct dichotomous routes.

The court held, that, section 187 is principally aimed at investigating the suitability or otherwise of the imperiled judge in continuing to hold office in light of the alleged acts of misconduct and the Code of Ethics is mainly aimed at some other disciplinary measures short of removal from office.

It was the court's position, that, the applicability of the abovementioned provisions is a question that is dependent on the gravity of the offence.

It held that the use of the words “gross incompetence” and “gross misconduct” in section 187(3) of the Constitution, which words are absent in section 21 of the Code of Ethics, conveys the notion that it is reserved for indiscretions that are deemed serious. The court concluded, on this point, by finding that:

“The appellant's argument that no distinction can and should be drawn between 'disciplining' of judges and 'removal' of judges cannot be sustained because a reading of those sections clearly conveys such a distinction.”

The court also opined, that, the fact that the outcomes of the two procedures are different lends further credence to the existence of the dichotomy. Whereas, the outcome under section 187 of the Constitution is the possible removal of a judge from office, under the Code of Ethics, there are various possible outcomes.

The court a quo further held, that, if the procedure under the Code of Ethics was meant to be antecedent to the referral in terms of section 187(3) of the Constitution, then, either the Constitution or the Code of Ethics, or both, would have said so.

Sections 21, 24, 25, and 26 of the Code of Ethics make it clear that they are subject to the Constitution.

Further, the Sixth Preamble to the Code of Ethics clearly conveys the meaning that the Code of Ethics was intended to plug the lacuna obtaining before its promulgation, namely, that there was no formal complaints mechanism for conduct falling short of impeachable conduct.

The court also noted that subsection (3) of section 24 of the Code of Ethics makes it clear that nothing contained in it shall be construed as taking away or derogating from the powers bestowed upon a person to make a direct referral for impeachable conduct.

It further found, that, in any event, the Code of Ethics was promulgated in 2012, and, therefore, predates the current Constitution which came into effect a year later.

Concerning the allegations of bias, mala fides, and non-observance of the audi alteram partem rule levelled against the second, third, and fourth respondents (Chief Justice, Judge President of the High Court and the Judicial Service Commission) in handling her matter, the court a quo made a finding that the appellant rejected the invitation to respond to the complaints against her, and, thus, cannot claim that her right to be heard was violated.

To that end, the court a quo held that the appellant did not manage to establish a prima facie right let alone a clear one entitling her to be subjected to the Code of Ethics first before a referral as contemplated under section 187(3) of the Constitution.

In light of that, the court a quo held that it was not necessary to interrogate the remaining requirements for an interim interdict as the application before it did not establish a prima facie right.

In accordance with the above findings, the court a quo dismissed the application with costs.

Aggrieved by the decision of the court a quo, the appellant noted an appeal on the following grounds:

“1. The court a quo erred and misdirected itself in placing reliance on section 187(3) of the Constitution when the principle of subsidiarity required that reliance be on the Judicial Service (Code of Ethics) Regulations 2012 in taking any disciplinary measures against the appellant.

2. The court a quo erred and misdirected itself when it held that the Judicial Service (Code of Ethics) Regulations 2012 is aimed at some disciplinary measure other than the removal of a judge from office but also holding that the outcome of a disciplinary process instituted under the Judicial Service (Code of Ethics) Regulations, 2012 may result in a referral in terms of section 187(3) of the Constitution.

3. The court a quo erred and misdirected itself when it held that section 187(3) of the Constitution 2013 and Part III of the Judicial Service (Code of Ethics) Regulations 2012 provide for different procedures for dealing with the question of misconduct of a sitting judge of the High Court when such distinct procedures are not contained in the Constitution and the Judicial Service (Code of Ethics) Regulations 2012.

4. The court a quo erred and misdirected itself when it held that section 187(3) of the Constitution is reserved for transgressions that are deemed serious and that the Judicial Service (Code of Ethics) Regulations 2012 is reserved for minor transgression when such a distinction is not contained in either the Constitution, the Judicial Services Act, or the Judicial Service (Code of Ethics) Regulations 2012.”

She sought the following relief;

“1. That, the instant appeal succeeds with costs.

2. That, the judgment of the court a quo be set aside and the following be substituted in its place and stead;

'1. Pending the final determination of the legality of 4th respondent's decision to advise the 1st respondent to establish a tribunal in the absence of due process, the 1st respondent be and is hereby interdicted from setting up a Tribunal to investigate the question of removing the applicant from office in terms of section 187(3) of the Constitution.

2. In the event that a Tribunal referred to hereabove is already set up by the 1st respondent to investigate the applicant's conduct, then, the Tribunal's proceedings be stayed until the determination of the legality of the 4th respondent's decision to advise the 1st respondent to establish a tribunal.

3. That this matter be and is hereby remitted to the High Court for continuation of proceedings on the return date.'”

In the concluding paragraph in her heads of argument, the appellant's position was as follows:

“In light of the above, the appellant prays that the appeal succeeds with costs. However, in light of the fact that the interim relief sought has been overtaken by events, it is prayed that the judgment of the court a quo be set aside and the matter be remitted back to the court a quo for determination of the final relief sought.”…,.

SUBMISSIONS ON APPEAL

At the hearing of the appeal, the court asked counsel for the appellant to first address the court on the question whether the matter before the court had become moot first before addressing the merits of the matter.

The request was made on the basis, that, on the recommendation of the Judicial Service Commission (JSC), the President constituted a Tribunal to consider the removal of the appellant from office. The Tribunal has already conducted investigations and held an inquiry which consequently led to the removal of the appellant from the office of a judge.

Counsel for the appellant submitted, that, the issue of mootness did not arise in the present appeal.

It was her submission, that, when the President acted upon receipt of the referral, he did so in the belief that all due and proper processes had been followed as provided for in the Judicial Service (Code of Ethics) Regulations (Code of Ethics). If those processes were not followed, and the necessary transparent investigations carried out, the referral would have been invalid and everything that followed would be invalid. As such, the matter cannot be moot.

Notwithstanding her submissions that the matter was not moot, and despite the concession in the Heads of Argument, counsel for the appellant submitted that mootness is not a bar to hear a matter. The court retains a discretion to hear the merits of the appeal if it is in the interests of justice to do so. In casu, it was particularly important for the court to give guidelines for referral of a judge to the President.

For authority she relied on the case of Francis Bere v Judicial Service Commission & Ors SC01-22 where this Court proceeded to hear the appeal on the merits after having made a finding that the appeal was moot.

She further submitted, that, in that case, the provisions of the Code of Ethics had been followed. There had been participatory investigations by a panel of three judges which was set up in terms of the Code of Ethics.

On the merits, counsel for the appellant submitted, that, the Code of Ethics was not adhered to, therefore, all the proceedings thereafter were void.

It was her submission that in terms of the principle of subsidiarity, the appellant ought to have been subjected to the subsidiary legislation, therefore, the second respondent ought to have followed the procedure in the Code of Ethics before looking for recourse to the Constitution.

She further submitted, that, the second respondent did not conduct an investigation and failed to ensure that all processes before the referral were followed.

She also submitted, that, the court a quo erred in relying on the constitutional provisions on the investigative part of the proceedings. She maintained that if the legislature intended that there be two processes, one for serious infractions, and the other for non-serious infractions, it would have said so.

Finally, counsel made an application to amend the relief sought. She moved the court to grant an order declaring that the removal of the appellant from office was a nullity.

Per contra, counsel for the first and fifth respondents submitted that the relief the appellant was seeking in the instant appeal had been overtaken by events.

It was his submission that the Tribunal appointed by the President had duly carried out its Constitutional mandate resulting in the removal of the appellant from office. He further submitted that the appellant has taken those proceedings on review in the High Court. She has also filed an appeal in the Labour Court against the decision of the President to remove her from office.

Counsel for the second, third, and fourth respondents submitted that the test in respect of mootness is factual.

That the appellant was no longer a judge of the High Court is a fact. The question is not whether the matter is moot or not because on the facts the matter is moot.

The question should be whether this Court has a basis of exercising its discretion, in the interests of justice, to still hear the matter. He submitted that the following points militate against the exercise of that discretion.

(i) Firstly, the appellant voluntarily attended the Tribunal and fully participated in its enquiry. The Tribunal completed its work and the legal process of her removal from office has occurred. The appellant continues to seek legal remedies in other courts, namely, in the High Court and the Labour Court.

(ii) Secondly, when the appeal was filed, it was open to the appellant to seek an expedited hearing. He submitted that no effort was made to seek such an expedited hearing of the matter, as provided in the Rules, and secure the relief she seeks in her notice of appeal. As a result, this Court is unable to grant the relief sought by the appellant.

(iii) Thirdly, the Judicial Service Commission (JSC) advised the appellant of the complaints against her, provided her with the details of the complaints, and invited her to comment. The appellant, through her erstwhile legal practitioners, took a position that she had no obligation to address the complaint. As a result, the JSC resolved to refer the matter to the President in terms of section 187(3) of the Constitution. The actions of the JSC are unimpeachable. This Court cannot issue a declaratur nullifying the actions of the JSC. He concluded by submitting that there was nothing exceptional about this case warranting this Court exercising its discretion to hear this moot case.

On the merits, counsel submitted that the Code of Ethics makes it clear that it does not purport to supersede section 187(3) of the Constitution. The Code of Ethics recognises the supremacy of the Constitution, in particular sections 21, 24, 25 and 26 of the Code. He further submitted that the Code is limited to administrative complaints and impeachment processes are dealt with in terms of section 187(3) of the Constitution.

DETERMINATION OF THE QUESTION OF MOOTNESS

The appellant approached the court a quo in an urgent chamber application seeking the Provisional Order outlined above.

As is clear from the Provisional Order, the appellant sought, in the interim, an interdict preventing the President from setting up a Tribunal to investigate the removal of the appellant from office and in the event that it had already been set up, an order staying the proceedings of such Tribunal.

It is common cause that the Tribunal was set up, executed its mandate, and the appellant was removed from being a Judge of the High Court in terms of section 187(3) of the Constitution.

It is on this basis that the respondents take the position that the appeal before the court has been overtaken by events.

At this point in time, it is appropriate to deal with the doctrine of mootness as I believe it could be dispositive of this instant appeal.

THE LAW ON MOOTNESS

A matter is moot if the dispute becomes academic by reason of changed circumstances, thus making the jurisdiction of the court unsustainable.

The issue was comprehensively dealt with by the Constitutional Court in Thokozani Khupe & Anor v Parliament of Zimbabwe & Ors CC20-19…, where it held as follows:

“A court may decline to exercise its jurisdiction over a matter because of the occurrence of events outside the record which terminate the controversy. The position of the law is that if the dispute becomes academic, by reason of changed circumstances, the Court's jurisdiction ceases and the case becomes moot…,.

The question of mootness is an important issue that the Court must take into account when faced with a dispute between parties. It is incumbent upon the Court to determine whether an application before it still presents a live dispute as between the parties.

The question of mootness of a dispute has featured repeatedly in this and other jurisdictions.

The position of the law is that a court hearing a matter will not readily accept an invitation to adjudicate on issues which are of 'such a nature that the decision sought will have no practical effect or result.'”

The above principle was followed in MDC & Ors v Mashavira & Ors SC56-20…, where it was stated:

“…,. A court may decline to exercise its jurisdiction over a matter because of the occurrence of events outside the record which terminate the controversy between the parties….,. [I]f the dispute becomes academic by reason of changed circumstances, the case becomes moot and the jurisdiction of the court is no longer sustainable.”

In ZIMSEC v Mukomeka and Anor SC10-20…, PATEL JA, at pp6-7, set out a two–stage approach in determining whether or not an appeal is moot. The learned Judge cited the Supreme Court of Canada, in Borowski v Canada (Attorney General) [1989] 1 SCR 342, where it was held that:

“It is first necessary to determine whether the requisite tangible and concrete dispute has disappeared rendering the issues academic. If so, it is then necessary to decide if the court should exercise its discretion to hear the case.”

In respect of the second stage of an inquiry on mootness, PATEL JA held, at p7, that:

“The next step in the analysis is to decide whether or not the court should exercise its discretion to hear the case. In that respect, courts are guided by the rationale and policy considerations underlying the doctrine of mootness: Borowski's case, supra.

The overriding consideration is whether or not it is in the interests of justice to hear a moot case. The factors to be taken into account in that regard were lucidly enunciated by the Constitutional Court of South Africa in Independent Electoral Commission v Langeberg Municipality 2001 (3) SA 925 (CC) at para 11:

'…,. Discretion must be exercised according to what the interests of justice require.

A pre-requisite for the exercise of the discretion is that any order which this Court may make will have some practical effect either on the parties or on others. Other factors that may be relevant will include the nature and extent of the practical effect that any possible order might have, the importance of the issue, its complexity, and the fullness or otherwise of the argument advanced.'”…,.

The doctrine is well developed in American law. A case is moot if it:

“…, seeks to get a judgment on a pretended controversy, when in reality there is none, or a decision in advance about a right before it has actually been asserted and contested, or a judgment upon some matter which, when rendered, for any reason, cannot have any practical effect upon a then existing controversy.”

See Ex Parte Steel 162 Fed. 694, 701 (N.D.Ala. 1908).

Furthermore, a case is moot:

“If the parties are not adverse, if the controversy is hypothetical, or if the judgment of the court, for some other reason cannot operate to grant any actual relief…, and the court is without power to grant a decision.”

See Diamond, Sidney A. “Federal Jurisdiction to Decide Moot Cases” University of Pennsylvania Law Review Vol. 94…,.

Barron and Dienes Barron J (eds) Barron J and Dienes T (eds) Constitutional Law (West St Paul, Min 1995) put it succinctly when they observed that "a case or controversy requires present flesh and blood dispute that the courts can resolve."

In South African Jurisprudence, mootness is when a matter “no longer presents an existing or live controversy”: see National Coalition for Gay and Lesbian Equality & Ors v Minister of Home Affairs 2000 (2) SA 1 (CC)…,.

Section 16(2)(a)(i) of the South African Supreme Court Act provides as follows:

“(i) When, at the hearing of an appeal, the issues are of such a nature that the decision sought will have no practical effect or result, the appeal may be dismissed on this ground alone.”

It can be gathered from the above authorities that mootness essentially restricts the court's jurisdiction to hear or determine a matter, particularly if giving the judgment in that matter will produce no tangible result but merely an opinion. It is based on the notion that judicial resources ought to be utilised efficiently and not dedicated to advisory opinions.

However, the fact that a matter is moot is not an absolute bar for the court to decide an appeal where the interests of justice so require.

An analysis of decisions in which Zimbabwean Courts proceeded to determine matters despite the fact that they had become moot exposes the application of the foregoing principles.

In the case of Stevenson v Minister of Local Government & Ors 2002 (1) ZLR 498 (S)…, the court heard a matter that was moot for the purpose of determining the party liable to pay costs. SANDURA JA held as follows:

“In the circumstances, the learned judge in the court a quo should have dealt with the issues raised in the appellant's application.

However, it is pertinent to note that after the appeal in this matter had been noted, mayoral and council elections for Harare were held in March 2002. It follows, therefore, that the reason for the appellant's application has now fallen away.

Nevertheless, a determination of the issues raised in the application is essential for the purpose of determining which party should pay the costs of the application in the court a quo….,.”…,.

See also Francis Bere v Judicial Service Commission & Ors SC01-22.

The South African courts have attempted to outline factors to be considered when a court wishes to break through the veil of mootness to decide an appeal that is moot for justice's sake. In VINPRO NPC v The President of the Republic of South Africa & Ors (741/2021) [2021] ZAWHCHC 149 the court opined as follows:

“[50] Moreover, this Court has proffered further factors that ought to be considered when determining whether it is in the interests of justice to hear a moot matter. These include -

(a) Whether any order which it may make will have some practical effect either on the parties or on others;

(b) The nature and extent of the practical effect that any possible order might have;

(c) The importance of the issue;

(d) The complexity of the issue;

(e) The fullness or otherwise of the arguments advanced; and

(f) Resolving the disputes between different courts.”

In casu, under the first consideration in the test for mootness, it is apparent from the record that the appellant sought an order in the court a quo interdicting the President from establishing a Tribunal to investigate the question of removing her from office in terms of section 187(3) of the Constitution, and a stay of the Tribunal proceedings in the event that it had already been set up, pending the determination of the legality of the Judicial Service Commission's decision to advise the President to establish a Tribunal.

It is common cause that the Tribunal was set up and its proceedings were conducted and concluded - with the full participation of the appellant.

At this point, the issue of the Judicial Service Commission's referral of the matter to the President, the setting up of the Tribunal by the President, and the legality thereof has undoubtedly been overtaken by events.

The judgment, if rendered in favour of the appellant 'cannot operate to grant any actual relief' to her. There is no longer any 'present flesh and blood dispute that the court can resolve'.

In light of the above, it is my position that the appeal before this court is now moot.

View Appeal
HH398-19 : HARARE SPORTS CLUB CASE NO. HC9909/18 and ZIMBABWE CRICKET CASE NO HC10011/18 vs ZIMBABWE CRICKET and HARARE SPORTS CLUB and ARBITRATOR ADVOCATE DANIEL TIVADAR
Ruled By: MATHONSI J

This judgment is a two-in-one.

It disposes of the application in HC9909/18, an application in which Harare Sports Club (the applicant) seeks a registration of an arbitral award issued by an arbitrator and HC10011/18, one in which Zimbabwe Cricket (the respondent) seeks the setting aside of the same arbitral award on the ground that it is contrary to the public policy of Zimbabwe.

Registration of the award is sought by the applicant in terms of Article 35 while the setting aside of the award is sought by the respondent in terms of Article 34 of the Model Law in the Arbitration Act [Chapter 7:15].

The contentious arbitral award was issued in terms of an agreement entered into between the parties on 16 July 1999 supported by an order of this court, per MANGOTA J, handed down on 21 July 2017.

The award itself was delivered on 28 August 2018.

By order of this court, per CHIKOWERO J, granted on 27 March 2019, the two (2) mutually destructive applications were consolidated for set down and determination at the same time.

At the commencement of the hearing, counsel for the parties agreed that upholding one of the applications necessarily brings the other to its knees. In other words, if the court finds that there is no merit in the application to set aside the arbitral award, it should, without further ado, recognize the award and register it for enforcement.

The background is that the applicant is the registered owner of a sporting complex known as Harare Sports Club which it leased to the respondent, then known as Zimbabwe Cricket Union, by Notarial Agreement of Lease signed on 16 July 1999, at a time when the Zimbabwe dollar ruled the roost.

The rental payable was therefore fixed in that currency, at $40,000 per month, and, in terms of clause 3(c) the rent was to be escalated on an annual basis with effect from the agreement's first anniversary at a rate to be agreed between the parties.

In the event of the parties failing to agree, the rent was “to be determined and set by an independent arbitrator appointed by mutual agreement between the parties, whose decision shall be final and binding as between them, based upon any fluctuation in the prime bank rate of interest and the inflation rate prevailing in Zimbabwe at the relevant juncture.”

When the Zimbabwe dollar became moribund, at the beginning of 2009, the parties could not agree on the rent in foreign currency and a dispute arose, which has escalated over the years, resulting in the need to refer the matter to arbitration in terms of clause 3(c) of the agreement.

The parties still could not agree on an arbitrator to resolve the dispute, and, as they bickered endlessly, the applicant brought an application in this court under case no. HC217/17 in which it cited both the respondent and the Commercial Arbitration Centre.

It sought an order authorizing the Commercial Arbitration Centre to appoint an arbitrator to determine the dispute over rent.

The application was made in terms of Article 11(4) of the Model Law which recognizes the right of the parties to agree on a procedure of appointing an arbitrator but provides, that, should they fail to agree, such arbitrator may be appointed by the High Court on request of a party.

The respondent opposed that application arguing, inter alia, that Article 11(4) of the Model Law empowers the High Court itself to appoint an arbitrator and not to delegate the power to appoint to someone else.

The respondent also argued in opposition, that, the dispute over the appropriate rental for the property was governed by the Commercial Rent Regulations and should thus be determined by the Commercial Rent Board.

The respondent further argued, that, clause 3(c) of the parties agreement, which provides for arbitration of a rent dispute, was void by virtue of section 29 of the Commercial Rent Regulations which provides:

“…, any agreement by which any person purports to limit his right to proceed under these Regulations for the determination of a fair rent or the variation of such a determination, or the limit or affect any other rights to which he would be entitled under these Regulations, shall be void.”

The respondent sought to side-foot the imperatives of the agreement it entered into with the applicant and avoid arbitration by hiding behind the Commercial Rent Regulations which would have meant that the dispute would be referred to the Commercial Rent Board.

MANGOTA J, who heard the application, was not persuaded by that argument. Neither was he persuaded by the argument that the High Court could not delegate the power to appoint an arbitrator to the Commercial Arbitration Centre.

In Harare Sports Club v Zimbabwe Cricket & Anor HH471-17 the learned judge upheld the principle of sanctity of contract holding that having crafted for themselves “a clearly defined manner of resolving their disputes” neither of the parties was entitled to renege from the agreement.

On the issue of the power of the court to delegate the authority to appoint an arbitrator, the learned judge ruled that this court has inherent jurisdiction to do so, and, in the exercise of that inherent jurisdiction, he authorized the Commercial Arbitration Centre to do the honours.

It was by virtue of that judgment that Daniel Tivadar was appointed arbitrator, and, having heard the matter, he issued the arbitral award which is the subject of this application.

The case of Harare Sports Club v Zimbabwe Cricket & Anor HH471-17 is significant in two ways:

(i) Firstly, it determined the issue of the arbitrator's jurisdiction to adjudicate over the dispute and clothed him with authority to do so.

(ii) Secondly, it completely resolved the issue of the validity of the arbitration clause, that is, clause 3(c) of the parties agreement, and ruled that it was valid notwithstanding section 29 of the Commercial Rent Regulations.

As shall be seen later, the respondent has not given up on these arguments, which form the main thrust of its challenge to the arbitral award and why it moves that the award be set aside and why it should not are registered for enforcement purposes.

It is significant that the judgment of MANGOTA J in Harare Sports Club v Zimbabwe Cricket & Anor HH471-17 has not been challenged in any way. It has not been appealed and remains extant to this day.

As I have said, the applicant has made an application for the registration of the arbitral award in terms of Article 35 of the Model Law.

The award directs the respondent to pay rent of US$7,500 per month with effect from 28 August 2018 for the Sports Complex; to pay US$88,119=85 together with interest from 6 December 2016; to pay rent of US$3,000 per month from 1 January 2018 to the date of the award; and costs of suit.

In its application for setting aside the award, the respondent states that the arbitral award is against the public policy of Zimbabwe because the arbitrator enforced clause 3(c) of the agreement, which provides for referral of the dispute to arbitration, when that clause is contrary to statute law, namely, section 29 of the Commercial Rent Regulations, which provides that any provision in a lease agreement which limits the rights of the parties in terms of those Regulations shall be void.

Secondly, the arbitrator did not deal with the issue of rent escalation.

As the parties had agreed on an interim rental of US$170 a month, it is that rent which should have been escalated in terms of clause 3(c) of the agreement.

Thirdly, the award unjustly enriches the applicant at the respondent's expense because it came out during the hearing, that, the applicant is renting out a portion of the complex to the Tobacco Industry Cricket Supporters Association for a rental.

Fourthly, the respondent submitted that the arbitrator pitched camp with the applicant because he allowed for expert evidence on what is a fair rent for the complex to be presented which the applicant had not submitted.

I must put the issue of unjust enrichment out of the way straight away.

Counsel for the respondent conceded, that, it is an issue which was not argued before the arbitrator. Counsel for the applicant submitted, that, unjust enrichment is a cause of action which should have been pleaded before the arbitrator. It was not, and, therefore, cannot be relied upon to challenge the award.

I agree.

Raising a defence which was not relied upon before the arbitrator only means that a party is seeking a fresh hearing of the case and not a challenge of the arbitrator's decision - a decision arrived at without consideration of the new defence.

That cannot be allowed. The issue must end there.

Counsel for the applicant took essentially two (2) points in limine, namely;

(i) That, the application for the setting aside of the arbitral award, issued by the arbitrator on 10 April 2018, was filed out of time and should fail for that reason alone.

(ii) Secondly, he submitted that the respondent cannot challenge the arbitrator's ruling on jurisdiction at this stage because the time during which to do so lapsed in terms of Article 16 of the Model Law.

There is merit in both points in limine.

At the commencement of the arbitration process, the respondent objected to the jurisdiction of the arbitrator to arbitrate the dispute. In fact, the lack of jurisdiction was one of seven (7) preliminary objections made on behalf of the respondent at that stage.

In an award dated 10 April 2018, the arbitrator dismissed that preliminary point holding that he had jurisdiction. He proceeded with the arbitration.

An arbitrator is entitled to rule on his or her own jurisdiction in terms of Article 16(1) of the Model Law. That Article further provides in paragraphs (2) and (3):

“(2) A plea that the arbitral tribunal does not have jurisdiction shall be raised not later than the submission of the statement of defence. A party is not precluded from raising such a plea by the fact that he has appointed, or participated in the appointment, of an arbitrator. A plea that the arbitral tribunal is exceeding the scope of its authority shall be raised as soon as the matter alleged to be beyond the scope of its authority is raised during the arbitral proceedings. The arbitral tribunal may, in either case, admit a later plea if it considers the delay justified.

(3) The arbitral tribunal may rule on a plea referred to in paragraph (2) of this Article either as a preliminary question or in an award on the merits.

If the arbitral tribunal rules on such a plea as a preliminary question, any party may request, within thirty days after having received notice of that ruling, the High Court to decide the matter, which decision shall be subject to no appeal; while such request is pending, the arbitral tribunal may continue the arbitral proceedings and make an award.”

The respondent did not challenge the determination on jurisdiction within the period of 30 days provided for in paragraph (2) of Article 16 of the Model Law. In fact, the respondent only mounted the challenge in the main application filed on 30 October 2018 - almost seven (7) months later.

It could not do that without seeking condonation.

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Appeal re: Limitation to the Right of Appeal iro Procedural, Statutory, Contractual Limitations & Doctrine of Peremption

SC35-22 : JOHN BASERA vs REGISTRAR OF THE SUPREME COURT OF ZIMBABWE and SAMUEL MUVUTI and JOYLIN MUVUTI and MINISTER OF LANDS, AGRICULTURE, WATER, FISHERIES AND RURAL SETTLEMENT
Ruled By: MATHONSI JA

SC38-22 : MINING COMMISSIONER – MASVINGO N.O. and MINING AFFAIRS BOARD and MINISTER OF MINES AND MINING DEVELOPMENT vs FINER DIAMOND (PRIVATE) LIMITED
Ruled By: BHUNU JA

SC47-22 : ISMAIL LUNAT vs MOHAMMED PATEL
Ruled By: CHATUKUTA JA

SC49-22 : NGWARU MASANZA (Informa pauperis) and PRISCILLA ZUNGUZA (Informa pauperis) vs LUKE RWAFA and PLACXEDAS RWAFA and MESSENGER OF COURT
Ruled By: CHIWESHE JA

SC52-22 : AL SHAMS GLOBAL BVI LIMITED vs DEPOSIT PROTECTION CORPORATION and KIITUMETSI ZAWANDA and EQUITY PROPERTIES (PVT) LTD and REGISTRAR OF DEEDS N.O.
Ruled By: MATHONSI JA, KUDYA JA and MUSAKWA JA

SC57-22 : ERICA NDEWERE vs PRESIDENT OF ZIMBABWE N.O. and CHIEF JUSTICE N.O. and JUDGE PRESIDENT OF THE HIGH COURT N.O. and JUDICIAL SERVICE COMMISSION and MINISTER OF JUSTICE N.O.
Ruled By: MAKONI JA, MATHONSI JA and KUDYA JA

View Appeal
HH398-19 : HARARE SPORTS CLUB CASE NO. HC9909/18 and ZIMBABWE CRICKET CASE NO HC10011/18 vs ZIMBABWE CRICKET and HARARE SPORTS CLUB and ARBITRATOR ADVOCATE DANIEL TIVADAR
Ruled By: MATHONSI J

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Appeal re: Limitation to the Right of Appeal iro Procedural, Statutory, Contractual Limitations & Doctrine of Peremption

SC35-22 : JOHN BASERA vs REGISTRAR OF THE SUPREME COURT OF ZIMBABWE and SAMUEL MUVUTI and JOYLIN MUVUTI and MINISTER OF LANDS, AGRICULTURE, WATER, FISHERIES AND RURAL SETTLEMENT Ruled By: MATHONSI JA

SC38-22 : MINING COMMISSIONER – MASVINGO N.O. and MINING AFFAIRS BOARD and MINISTER OF MINES AND MINING DEVELOPMENT vs FINER DIAMOND (PRIVATE) LIMITED Ruled By: BHUNU JA

SC47-22 : ISMAIL LUNAT vs MOHAMMED PATEL Ruled By: CHATUKUTA JA

SC49-22 : NGWARU MASANZA (Informa pauperis) and PRISCILLA ZUNGUZA (Informa pauperis) vs LUKE RWAFA and PLACXEDAS RWAFA and MESSENGER OF COURT Ruled By: CHIWESHE JA

SC52-22 : AL SHAMS GLOBAL BVI LIMITED vs DEPOSIT PROTECTION CORPORATION and KIITUMETSI ZAWANDA and EQUITY PROPERTIES (PVT) LTD and REGISTRAR OF DEEDS N.O. Ruled By: MATHONSI JA, KUDYA JA and MUSAKWA JA

SC57-22 : ERICA NDEWERE vs PRESIDENT OF ZIMBABWE N.O. and CHIEF JUSTICE N.O. and JUDGE PRESIDENT OF THE HIGH COURT N.O. and JUDICIAL SERVICE COMMISSION and MINISTER OF JUSTICE N.O. Ruled By: MAKONI JA, MATHONSI JA and KUDYA JA

View Appeal HH398-19 : HARARE SPORTS CLUB CASE NO. HC9909/18 and ZIMBABWE CRICKET CASE NO HC10011/18 vs ZIMBABWE CRICKET and HARARE SPORTS CLUB and ARBITRATOR ADVOCATE DANIEL TIVADAR Ruled By: MATHONSI J

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SC35-22 : JOHN BASERA vs REGISTRAR OF THE SUPREME COURT OF ZIMBABWE and SAMUEL MUVUTI and JOYLIN MUVUTI and MINISTER OF LANDS, AGRICULTURE, WATER, FISHERIES AND RURAL SETTLEMENT
Ruled By: MATHONSI JA

SC38-22 : MINING COMMISSIONER – MASVINGO N.O. and MINING AFFAIRS BOARD and MINISTER OF MINES AND MINING DEVELOPMENT vs FINER DIAMOND (PRIVATE) LIMITED
Ruled By: BHUNU JA

SC47-22 : ISMAIL LUNAT vs MOHAMMED PATEL
Ruled By: CHATUKUTA JA

SC49-22 : NGWARU MASANZA (Informa pauperis) and PRISCILLA ZUNGUZA (Informa pauperis) vs LUKE RWAFA and PLACXEDAS RWAFA and MESSENGER OF COURT
Ruled By: CHIWESHE JA

SC52-22 : AL SHAMS GLOBAL BVI LIMITED vs DEPOSIT PROTECTION CORPORATION and KIITUMETSI ZAWANDA and EQUITY PROPERTIES (PVT) LTD and REGISTRAR OF DEEDS N.O.
Ruled By: MATHONSI JA, KUDYA JA and MUSAKWA JA

SC57-22 : ERICA NDEWERE vs PRESIDENT OF ZIMBABWE N.O. and CHIEF JUSTICE N.O. and JUDGE PRESIDENT OF THE HIGH COURT N.O. and JUDICIAL SERVICE COMMISSION and MINISTER OF JUSTICE N.O.
Ruled By: MAKONI JA, MATHONSI JA and KUDYA JA

View Appeal
HH398-19 : HARARE SPORTS CLUB CASE NO. HC9909/18 and ZIMBABWE CRICKET CASE NO HC10011/18 vs ZIMBABWE CRICKET and HARARE SPORTS CLUB and ARBITRATOR ADVOCATE DANIEL TIVADAR
Ruled By: MATHONSI J